GA brief to Supreme Court argues state Constitution gives lawmakers 120 calendar days to do the people’s work, can be suspended during public health emergency

DENVER, CO — House and Senate Democratic Leadership today released the following statements after the General Assembly submitted its brief to the Colorado Supreme Court. The governor and attorney general submitted a brief in support of the General Assembly’s position, as did the Colorado Association of Local Public Health Officials and several other groups and individuals. 

“We filed a brief asking to fulfill our constitutional obligation to do the people’s business in a regular session, which is not only called for in the Constitution, but is necessary to serve our constituents,” said Speaker KC Becker, D-Boulder. “With their brief, Republican lawmakers are recklessly using a global pandemic to jeopardize our ability to carry out our constitutional requirements and responsibilities.”

“What Coloradans need right now is for us to focus on the immediate wellbeing of their loved ones and their livelihoods. What they do not need us to do is abandon all of the work they elected us to accomplish on their behalf,” said President Leroy Garcia. “We suspended our legislative session in order to protect the community from this serious pandemic, but we are committed to continuing to fight for solutions that will provide relief to Coloradans in the wake of this difficult time.”

“We suspended the session to protect public health, and a common-sense reading of the Constitution allows us to continue our important work at a later date,” said House Majority Leader Alec Garnett, D-Denver. “This should not be a partisan issue. This is about preserving the legislature’s ability, regardless of the party in power, to do what we were elected to do and carry out the people’s work.”

“We are facing one of the worst public health and economic crises we’ve seen in a generation, which makes this partisan gamesmanship all the more disappointing. Now is the time to come together, not play politics,” said Senate Majority Leader Steve Fenberg. “The argument that we cannot suspend a legislative session in the middle of a public health disaster smells of putting politics over people’s lives. Coloradans will need us to get back to work when it’s safe so that we can pass legislation to help our state get through this incredibly difficult time.” 

The legislature was faced with the difficult decision to protect public health and potentially fail to meet the people’s need for legislation, or meet the public’s interests by continuing to work on legislation while ignoring the danger to the public. To resolve this question, the General Assembly asked the Supreme Court if legislative days must be counted consecutively during a public health emergency, as determined by the governor, or whether the legislature can suspend operations to be resumed at a later date where they left off. 

Under longstanding rules of the General Assembly approved by both Republicans and Democrats for over a decade, the General Assembly may suspend its session in the case of a public health emergency without having the time of the suspension count against the 120 day legislative clock.

In its brief, the General Assembly makes six arguments in favor of the validity of its longstanding interpretation of Article V, Section 7, as embodied in Joint Rules 23(d) and 44(g), that calendar days do not have to be counted consecutively during a public health emergency, allowing the session to resume at a later date. 

  1. The phrase “120 calendar days” says nothing about whether “calendar days” must be consecutive. Most obviously, neither the word “consecutive” nor any similar term is included in the provision.
  2. In 1982 and 1988, Colorado voters limited the legislative session to 120 calendar days. The intent of the Constitutional amendments, found in the accompanying “Blue Books,” was to ensure lawmakers had adequate time to consider all critical and important issues during a regular session. The legislature’s joint rules are consistent with that intent. 
  3. The rules in question relate to the Assembly’s own procedures, and constitute an appropriate exercise of the Constitution’s independent grant to the Assembly of the “power to determine the rules of its proceedings,” the power “to protect its members against violence,” and “all other powers necessary for the legislature of a free state.”  
  4. The GAVEL amendment requires that all bills currently introduced be considered on their merits, which cannot happen if the session does not resume. Furthermore, a contrary interpretation could prevent the General Assembly from passing a budget, which it is also Constitutionally required to do.  
  5. The decision to suspend the session was not optional. It was necessary to protect the public’s health. The legislature’s rules allow the General Assembly to meet its constitutional obligations without exposing legislators, their staff or the public to COVID-19.  
  6. Special sessions are intended to address specific subject matters, not general business. A special session may only be called by the governor or by a two-thirds majority vote in each house. No sound basis exists to bar the General Assembly from acting on matters that cannot garner support from a supermajority of each chamber at the outset of the special session. 

Three additional briefs were filed in support of the General Assembly’s position: A combined brief from the Governor and Attorney General; a second brief from the Colorado Association of Local Public Health Officials (CALPHO); and a third combined brief from the ACLU of Colorado, Adams County Commissioner Steve O’Dorisio (in his individual capacity), AFT Colorado, Bell Policy Center, City of Aurora, City of Northglenn, Colorado Children’s Campaign, Colorado Criminal Justice Reform Coalition, Colorado Cross-Disability Coalition, Colorado Fiscal Institute, Counties and Commissioners Acting Together, Colorado Criminal Defense Bar, Club 20, Democrats for Education Reform, Denver District Attorney, Good Business Colorado Association, Interfaith Alliance Colorado, Jefferson County Board of Commissioners, Metro Mayors Caucus, SEIU, Sixth Judicial District Attorney’s Office, Towards Justice, and Women’s Lobby of Colorado.

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