Professional Documents
Culture Documents
Paulson Brief
Paulson Brief
ii
Conclusion. ....................................................................................................... 25
CERTIFICATE OF SERVICE .......................................................................... 27
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Colorado Common Cause v. Meyer,
758 P.2d 153 (Colo. 1988) ............................................................................................... 4
Common Sense All. v. Davidson,
995 P.2d 748 (Colo. 2000) ............................................................................................. 21
Davis v. Thompson,
721 P.2d 789 (Okla. 1986) ............................................................................................. 21
Indiana v. E.P.A.,
796 F.3d 803 (7th Cir. 2015) ........................................................................................... 4
Oakwood Holdings, LLC v. Mortgage Investments Enterprises LLC,
410 P.3d 1249 (Colo. 2018) ........................................................................................... 23
Okanogan, Methow, San Poelis (or San Poil), Nespelem, Colville, & Lake Indian
Tribes or Bands of State of Washington v. United States,
279 U.S. 655, 49 S. Ct. 463, 73 L. Ed. 894 (1929) ...................................................... 21
Ex parte Quirin,
317 U.S. 1 (1942)............................................................................................................. 22
State v. Grant Superior Court,
172 N.E. 897 (Ind. 1930) ............................................................................................... 22
Statutes
C.R.S. § 1-40-118 .................................................................................................................. 23
C.R.S. § 24-32-2104 ........................................................................................................ 22, 23
C.R.S. § 24-33.5-703(3) .......................................................................................................... 9
C.R.S. § 24-33.5-703(5) .......................................................................................................... 9
C.R.S. § 24-33.5-704 ............................................................................................................... 5
iv
C.R.S. § 24-33.5-704(4) ........................................................................................................ 11
C.R.S. § 24-33.5-704(7)(a) through (j) ................................................................................ 10
Other Authorities
Black's Law Dictionary (11th ed. 2019) ............................................................................. 20
Brooke Singman, These US senators are in self-quarantine over coronavirus
threat, Fox News (Mar. 23, 2020) .................................................................................. 12
C.R.C.P. 6 .............................................................................................................................. 23
Colo. Const. art. V, § 7 .................................................................................................... 2, 18
Colo. Exec. Order No. D 005 09 (Mar. 26, 2009).............................................................. 8
Colo. Exec. Order No. D 011 05 (Sept. 29, 2005) ............................................................ 5
Colo. Exec. Order No. D 012 05 (Oct. 28, 2005) .............................................................. 8
Colo. Exec. Order No. D 023 06 (Nov. 28, 2006) ............................................................. 7
Colo. Exec. Order No. D 2019 002 (Mar. 18, 2019) ......................................................... 7
Colo. Exec. Order No. D 2019 003 (Apr. 3, 2019) ............................................................ 7
Colo. Exec. Order No. D 2019 004 (Apr. 30, 2019).......................................................... 7
Colo. Exec. Order No. D 2019 005 (May 31, 2019) .......................................................... 7
Colo. Exec. Order No. D 2020 013 (Mar. 22, 2020) ....................................................... 11
Colo. Gen. Assembly, Remote Testimony ........................................................................ 15
Colo. S., H.R. Rule 44(g)......................................................................................2, 20, 22, 23
Colo. S., H.R. Rules § 44(c)(1)(a)-(g) .................................................................................. 14
Colo. S., H.R. Rules § 44(c)(2) ............................................................................................ 14
Colo. S., H.R. Rules Sec. 44(e)(1) ....................................................................................... 14
v
Colo. S. Rule 15(c) ................................................................................................................ 14
Colorado Constitution Article V Section 7 ................................................................... 2, 19
David A. Lieb, Virus concerns lead to public meetings without the public (Mar.
21, 2020)........................................................................................................................... 13
David A. Lieb, Virus concerns lead to public meetings without the public (Mar.
21, 2020), Associated Press............................................................................................ 13
Denver Public Library, Katie Rudolph, Denver’s Influenza Pandemic of 1918
(Jan. 16, 2018).................................................................................................................. 14
Disaster emergency delcared in Colorado for propane shortage, KKTV
11 News (Dec. 24, 2018).................................................................................................. 6
Governor Declares Disaster Emergency Due to Propane Supply Shortage in
Colorado, Colorado Division of Homeland Security & Emergency
Management (Dec. 24, 2018) .......................................................................................... 6
H.R.J. Res. 29-1006 (2020), 72nd Leg., 2d Sess. (Colo. 2020) ........................................ 18
House Journal of the General Assembly of the State of Colo. ...................................... 13
Huge wheat harvest leads state to suspend trucking rules (Aug. 22, 2007), Denver
Business Journal ................................................................................................................ 8
Massive rockslide punches holes in Interstate 70, Denver Post (Mar. 8, 2010) .......................... 8
Ryan Struyk, Trump’s wall would be the 32nd active national emergency ..................................... 8
Things will get worse before they get better (Mar. 15, 2020), ABC News............................ 16, 17
U.S. Constitution Article 1, § 7 ........................................................................................... 21
vi
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of C.A.R. 28 or
C.A.R. 28.1, and C.A.R. 32, including all formatting requirements set forth in these
rules. Specifically, the undersigned certifies that:
The brief complies with the applicable word limits set forth in C.A.R. 28(g)
or C.A.R. 28.1(g).
It contains 4,167 words (principal brief does not exceed 9,500 words; reply
brief does not exceed 5,700 words).
The brief complies with the standard of review requirements set forth in
C.A.R. 28(a)(7)(A) and/or C.A.R. 28(b).
X For each issue raised by the appellant, the brief contains under a
separate heading before the discussion of the issue, a concise statement: (1) of the
applicable standard of appellate review with citation to authority; and (2) whether the
issue was preserved, and, if preserved, the precise location in the record where the
issue was raised and where the court ruled, not to an entire document.
s/Scott E. Gessler
Scott E. Gessler, #28944
1
Statement of Issues Presented for Review
especially if the General Assembly has adequate ways to convene once the current
limits the legislative session to 120 calendar days per year, which has always meant 120
consecutive days. Changing this interpretation is not necessary, because the General
Assembly has many options for meeting. And using a “declared disaster emergency” is
have no bearing on whether the General Assembly can, in fact meet. Constitutional
The meaning of “calendar days” has been consistent and uniform, as used by
the General Assembly, interpreted (and used) by courts, and applied by executive
branch. This holds true despite the General Assembly’s oft-violated and always-
ignored Rule 44(g). By contrast, changing the foundation of the General Assembly’s
2
fundamentally alter law-making dynamics, make it more difficult for constituents to
Argument.
The interrogatory before this Court asks whether the General Assembly can
change the interpretation of “one hundred twenty calendar days” to mean non-
consecutive days when the legislature meets during a “declared disaster emergency.” It
is important, however, to recognize what the interrogatory does not ask. Namely, the
General Assembly does not, as a general matter, seek to interpret “calendar days” as
nonconsecutive days. Rather, the interrogatory is carefully limited in its scope. The
3
But the constitutional language does not give the General Assembly discretion
words, the meaning of “calendar days” does not alternate between consecutive days
The phrase “calendar days” should have one, not multiple, meanings. “It is a
well settled rule” that “the meaning attributed to the words or phrases in one part of
[a] statute should be ascribed to the same words or phrases found elsewhere in the
statute.”1 That principle applies with greater force to a single phrase “calendar days”
that is used once in the constitution it cannot have different meanings based on
different circumstances For example, “it makes little sense to say that an
circumstances.”2 Conceptually, “calendar days” can mean either consecutive days (as
discussed below) or non-consecutive days – but it cannot mean one thing during
1
Colorado Common Cause v. Meyer, 758 P.2d 153, 161 (Colo. 1988).
2
Indiana v. E.P.A., 796 F.3d 803, 812 (7th Cir. 2015).
4
To be sure, the U.S. has not faced an emergency like COVID-19 for over 100
years. But this is far different than the governor’s declaration o f a “disaster
A brief survey of the last two decades shows just how common they are. Over
the course of eight years Governor Bill Owens declared over 31 disaster emergencies.4
And this number includes only new disaster emergencies, not the many, re-
declared 73 new disaster emergencies during his eight years in office.6 Again, this
3
C.R.S. § 24-33.5-704.
4
“Governor Bill Owens Executive Orders” Colorado State Archives, available
at: https://www.colorado.gov/pacific/archives/governor-bill-owens-executive-orders
(accessed Mar. 23, 2020).
5
See, e.g. Colo. Exec. Order No. D 011 05 (Sept. 29, 2005) “Concerning the
Statewide Disaster Emergency Due to Hurricanes Katrina and Rita and Extending
and Amending Executive Orders D 008 05, D 009 05 and D 010 05”.
6
“Governor Hickenlooper Executive Orders” Colorado State Archives,
available at: https://www.colorado.gov/pacific/archives/governor-hickenlooper-
executive-orders (last visited Mar. 23, 2020).
5
number does not include re-declarations. And Governor Polis is on a similar pace,
Not only are these declared disaster emergencies common, but they commonly
occur during the General Assembly’s regular session. For example, most of the 2019
legislative session that started on January 4, 2019 took place during one or more
7
“2019 Executive Orders” Website of “Governor Jared Polis” available at
https://www.colorado.gov/governor/2019-executive-orders (last visited Mar. 23,
2020).
8
The online state archives do not contain executive orders issues by Governor
Bill Ritter, and the compressed briefing schedule has limited undersigned counsel’s
ability to obtain the executive orders.
9
News Release: Governor Declares Disaster Emergency Due to Propane Supply Shortage
in Colorado, Colorado Division of Homeland Security & Emergency Management
(Dec. 24, 2018), https://www.colorado.gov/pacific/dhsem/news/news-release-
governor-declares-disaster-emergency-due-propane-supply-shortage-colorado (last
visited Mar. 23, 2020) (The state archives do not contain Governor Hickenlooper’s
executive orders after October 19, 2018, and time constrains have made it difficult to
obtain the official citation for this executive order). See also, Disaster emergency declared
in Colorado for propane shortage, KKTV 11 News (Dec. 24, 2018),
https://www.kktv.com/content/news/Disaster-emergency-declared-in-Colorado-for-
propane-shortage-503464081.html (last visited Mar. 23, 2020).
6
D 2019 00210 30 days February 28 to March 30, 2019
D 2019 00311 30 days March 13 to April 12, 2019
D 2019 00412 30 days April 10 to May 10, 2019
D 2019 00513 30 days May 6 to June 5, 2019
Assembly convened for the entire 120 consecutive days during the 2019 legislative
session, as it has done every year. And it functioned perfectly well, even though a
declared disaster emergency was in effect for 79 out of the 120 days during the
session.
COVID-19 virus. Although some respond to natural disasters that Colorado residents
often face, such as forest fires, others declared disaster emergencies respond to events
that would surprise many. For example, Colorado governors have declared disaster
10
Colo. Exec. Order No. D 2019 002 (Mar. 18, 2019).
11
Colo. Exec. Order No. D 2019 003 (Apr. 3, 2019).
12
Colo. Exec. Order No. D 2019 004 (Apr. 30, 2019).
13
Colo. Exec. Order No. D 2019 005 (May 31, 2019).
14
Colo. Exec. Order No. D 023 06 (Nov. 28, 2006).
7
And the frequency of declared disaster emergencies has grown in Colorado, as
seen from the 31 declared emergencies under Governor Owens, to the nearly one
third of that number under Governor Polis’ first 14 months in office. Experience on
the federal level shows resort to declared disaster emergencies may grow yet more.
For the for federal government, declared national emergencies have become a normal
way of business. There are over 30 current, active national emergencies in the United
States, and the U.S. has been under a constant state of national emergency for nearly
40 years.20
The reason that Coloradans pay little attention to declared disaster emergencies
15
See fn. 6
16
Colo. Exec. Order No. D 005 09 (Mar. 26, 2009).
17
Massive rockslide punches holes in Interstate 70, Denver Post (Mar. 8, 2010),
https://www.denverpost.com/2010/03/08/massive-rockslide-punches-holes-in-
interstate-70/ (last visited Mar. 23, 2020).
18
Colo. Exec. Order No. D 012 05 (Oct. 28, 2005).
19
Huge wheat harvest leads state to suspend trucking rules (Aug. 22, 2007), Denver
Business Journal,
https://www.bizjournals.com/denver/stories/2007/08/20/daily34.html (last visited
Mar. 23, 2004).
20
Ryan Struyk, Trump’s wall would be the 32nd active national emergency, CNN (Jan.
10, 2019), https://www.cnn.com/2019/01/07/politics/trump-wall-active-national-
emergency/ (last visited Mar. 23, 2020).
8
they are a call for action that does not affect a large number of Coloradans. Examples
of such relief noted above include enabling propane deliverers to drive longer shifts,
Hurricane Katrina recovery efforts. Until just this month, no event that gave rise to a
declared disaster emergency had ever affected the General Assembly’s ability to
convene.
This experience reflects that fact that legal definition of a “disaster” under
Colorado law is so broad that it includes many events that do not affect the General
influenza virus, 22 which is what Colorado faces today. But it also includes the
The reason, of course, that governors (and presidents) rely heavily on disaster
declarations is that the governor may rapidly provide relief, such as providing
21
C.R.S. § 24-33.5-703(3).
22
C.R.S. § 24-33.5-703(5).
9
impede relief efforts.23 So governors have a strong incentive to declare disaster
emergencies for reasons that have nothing to do with the General Assembly’s
operations.
In short, declared disaster emergencies are the norm, and except for this
month, they have never correlated to the General Assembly’s ability to function. A
declaration of a state disaster is an exceptionally poor tool for triggering when the
COVID-19 pandemic, historical usage shows that declared disaster emergencies are
frequent, used for problems that have no impact on the General Assembly, and often
The General Assembly faces the practical issue of meeting during the COVID-
19 pandemic. But this is much different than whether it can meet during a “declared
limited the General Assembly, and even the Governor’s most recent executive order
10
functions.”24 like convening the General Assembly. And the General Assembly always
retains the power to terminate a declaration of disaster emergency at any time through
that none of the current executive orders that respond to the COVID-19 pandemic by
The immediate practical issue of convening the legislature is distinct from the
Indeed, this Court’s resolution of the interrogatory will have no bearing on the
practical issue of whether and how the General Assembly meets between now and
adjournment sine die on May 6, 2020. Rather, the interrogatory only affects the General
Assembly’s abilities to convene and pass legislation after May 6, 2020. But the General
Assembly has before it plenty of options to pass legislation before and after Mary 6,
2020.
24
Colo. Exec. Order No. D 2020 013 (Mar. 22, 2020).
25
C.R.S. § 24-33.5-704(4).
11
Despite the concerns of transmitting the COVID-19 virus, a level-headed
analysis demonstrates that meeting now is a reasonable option. While not minimizing
the dangers posed by the current virus, it still must be recognized that there limited
ways in which the General Assembly can conduct its business. None of the following
is intended to advocate for legislative meetings now or in the near future. But
improvements show that the General Assembly can continue its critical functions,
without emergency intervention from this Court, and without changing the meaning
of “calendar days.
To begin, other jurisdictions have been able to meet during the COVID-19
pandemic. Most well-known, the U.S. Congress continues to meet, to negotiate, and
to vote on legislation. And it is doing so even though one U.S. Senators has tested
positive for the COVID-19 virus and another five (including Cory Gardner, one of
Likewise, many state legislatures remain in session. As of March 23, 2020, this
12
Michigan, Kentucky, South Carolina, Puerto Rico, Guam, Missouri, South Dakota,
legislation. For example, Nebraska state Senators continue to work, while the Senate
itself convenes only for short periods in order to pass important legislation.28 State
legislatures and local governing bodies continue to meet throughout the country, 29
and in Colorado, local governing bodies for large municipalities, like Lakewood,
continue to meet.30
April 7, 1919 for its regular session.31 This took place during the middle of deadly
27
National Conference of State Legislatures, https://www.ncsl.org (last visited
Mar. 23, 2020).
28
https://nebraskalegislature.gov/ (last visited Mar. 23, 2020) (Exhibit A).
29
See, e.g., David A. Lieb, Virus concerns lead to public meetings without the public
(Mar. 21, 2020), Associated Press,
https://apnews.com/1bdcd85c6bd8256788028d3c6b18b25f (last visited Mar. 23,
2020).
30
Agenda, Lakewood City Council, Mar. 23, 2020, Virtual Meeting (Exhibit
B).
31
House Journal of the General Assembly of the State of Colo., p. 12, 1825,
22 general assembly, http://lawcollections.colorado.edu/colorado-house-and-
nd
senate-journals/islandora/object/journals%3A89265#page/1823/mode/1up (last
visited Mar. 23, 2020).
13
Spanish Flu pandemic, which lasted from September 1918 until June 1919, killed
nearly 8,000 Coloradoans, and produced one of the highest state mortality rates in the
country.32 Despite far less sophisticated medical procedures and the complete absence
of virtual meeting capabilities, the Colorado General Assembly met for 96 days.
Indeed, the Colorado legislature has already developed plans, embodied in Rule 44,
Accordingly, the legislature can prioritize revenue and spending bills,33 limit the
overall number of bills, 34 and reorganize legislative committees.35 Even under current
rules, the General Assembly can quickly introduce and pass a bill in as little as three
days. 36 Thus, the General Assembly can meet for very limited periods of time, yet
to continue their work. They consist of far fewer individuals, and committee size is
analogous to the size of city councils like Lakewood. And committees can accomplish
32
Denver Public Library, Katie Rudolph, Denver’s Influenza Pandemic of 1918 (Jan.
16, 2018), https://history.denverlibrary.org/news/denvers-influenza-pandemic-1918
(last visited March 23, 2020).
33
Colo. S., H.R. Rules § 44(c)(1)(a)-(g).
34
Colo. S., H.R. Rules § 44(c)(2).
35
Colo. S., H.R. Rules § Rule 44(e)(1).
36
See, e.g. Colo. S. Rule 15(c).
14
a substantial amount of work, analyzing, vetting, approving (or disapproving) bills,
and preparing them for votes on the floor of the respective chamber.
Lastly, the General Assembly can meet remotely. In 2008 the joint Legislative
had the capability to take remote testimony,37 which it has implemented.38 And
General Assembly is properly concerned about costs, logistical hurdles, and time
constraints.39 But even if the body has not taken adequate preparatory steps since it
first studied the issue in 2009, experience from other jurisdictions demonstrates that
Fundamentally, these are issues that can be solved. They do not require this Court to
In addition to meeting now, the General Assembly can meet after the COVID-
19 pandemic abates, and once members of the General Assembly feel comfortable
15
convening. Estimates of how long COVID-19 pandemic will last vary widely, but on
March 15, 2020 Dr. Anthony Faucci, the Director of National Institutes of Health,
stated in an interview that that the pandemic would likely last “several weeks to a few
by mid-April. Or the pandemic could last until June. And despite its horrible death
toll, even the Spanish Flu lasted a total of nine months in Colorado. Ultimately,
interpretation. Although little comfort to those deeply suffering now, from a long-
Once the pandemic does pass, the General Assembly can develop procedures
to ensure continuous meetings during future pandemics. Indeed, this pandemic is not
a surprise. The General Assembly, has known about the problems associated with a
viral pandemic for over a decade. In 2007 the General Assembly created the
Things will get worse before they get better (Mar. 15, 2020), ABC News,
40
16
outbreaks in 1918, 1957, 1968. It also recognized that the “main activity of the
during influenza epidemics present “cost[s] . . . logistical hurdles . . . and time.”43 That
committee discussed many of the exact same issues facing the General Assembly
considered remote voting, proxy voting, and remote testimony.45 Even if the General
Assembly did not fully address the issues identified over a decade ago, it certainly has
And the General Assembly has reasonable options to address issues involving
the pandemic – as well as pass a budget and pass the other legislation – once members
42
Id.
43
Pet. to Accept Interrog. of the Colo. Gen. Assembly, p. 2.
17
feel comfortable about reconvening. Of course, if the pandemic ends before May 6,
2020, there will be some time to continue normal operations during the regular
session. The legislature last adjourned on March 14, 2020, so which means that the
General Assembly will have lost about 30 days of the regular session if it reconvenes
in mid-April.
Even if the General Assembly cannot reconvene during the regular session, it
can reconvene during a Special Session.46 As recognized by the General Assembly, the
Governor can call a special session, and that call can be as broad or as narrow as the
governor deems fit. Accordingly, the governor could limit a special session to the
budget, thus requiring the General Assembly to wait between one and seven months
But the General Assembly also controls its own fate. It can call a special session
“by written request by two-thirds of the members of each house,” on those subjects
contained in the request. 47 So regardless of how long the General Assembly chooses
to adjourn, it can always return to session by calling for a special session itself.
Ultimately, the practical effect of the interrogatory boils down to this: can the General
Assembly interrupt its regular session with a simple majority and meet beyond early
46
H.R.J. Res. 29-1006 (2020), 72nd Leg., 2d Sess. (Colo. 2020).
47
Colo. Const. art. V, § 7.
18
May of each or does it require a consensus of two thirds (or a governor’s request) to
balance between two important, competing principles. On one hand, the General
Assembly should only serve a limited time each year. On the other hand, the General
Assembly must have a free hand to address important public policy issues during
other times of the year. And Section 7 leaves it to the General Assembly to itself
chose important issues, by requiring a two-thirds majority to address issues that are so
urgent they must be dealt with during the eight months the General Assembly does
responding to the COVID-19 pandemic – are temporary. But this Court’s rulings are
permanent. A decision that treats calendar days as non-consecutive will have far-
reaching consequences and transform how the General Assembly conducts its
business. Such a ruling will change the universally agreed-upon interpretation, which
19
In its request for an interrogatory, the General Assembly seeks to interpret its
Rule 44(g) as allowing non-consecutive days, so that “if [t] to adjourns on March 16,
2020, the sixty-ninth legislative day, the day upon which the General Assembly
reconvenes will be counted as the seventieth legislative day.”48 The General Assembly
correctly refers to non-consecutive days as “legislative days.” But established case law
legislative days. For example, “calendar day” is defined as “a consecutive 24-hour day
reconvenes after a recess or adjournment, and ends when the body next recesses or
adjourns until a different calendar day. A legislative day may extend over several
calendar days.”50 These commonly understood terms originate in the 1830’s51 and
should dispose of this matter. The Colorado Constitution specifically uses the term
“calendar days.” Accordingly, the voters who enacted this constitutional provision
adopted the distinction between calendar and legislative days because “[t]he electorate,
48
Pet. to Accept Interrog. of the Colo. Gen. Assembly, p. 3
49
DAY, Black's Law Dictionary (11th ed. 2019).
50
Id.
51
Id.
20
as well as the legislature, must be presumed to know the existing law at the time they
Well established case law also distinguishes between consecutive calendar days
and non-consecutive legislative days. In early as 1929, the U.S. Supreme Court the
petitioner argued that the term “ten days” in Article 1, § 7 of the U.S. Constitution
meant legislative days, as opposed to calendar days.53 The court found that “days” in
the U.S. Constitution meant “calendar days,” that those days meant consecutive days
(except for Sunday, which is expressly excluded in the Constitution’s text”), and that
calendar days was separate and distinct from “legislative days.”54 Other courts have
adopted this practice. In determining how long the Oklahoma legislature could meet,
As a matter of practice, the General Assembly has always treated calendar days
as consecutive days. One can scour the legislative records, and in all instances on will
52
Common Sense All. v. Davidson, 995 P.2d 748, 754 (Colo. 2000).
53
Okanogan, Methow, San Poelis (or San Poil), Nespelem, Colville, & Lake Indian
Tribes or Bands of State of Washington v. United States, 279 U.S. 655, 675, 49 S. Ct. 463,
465, 73 L. Ed. 894 (1929).
54
Id. at 679.
55
Davis v. Thompson, 721 P.2d 789, 792 (Okla. 1986).
21
find that the General Assembly always completed its regular session on or before the
120th calendar day. This uniform legislative construction, beginning on the first
session following adopting of the 120 calendar day limit, is “entitled to the greatest
respect”56 and a legislature’s “practical construction must and does have great
weight.” 57 And here, the General Assembly’s practice has uniformly treated “calendar
Even the General Assembly’s treatment of Joint Rule 44(g) shows that it
interprets calendar days to mean consecutive days. The General Assembly has paid so
little attention to the rule, and neglected it so much, that the rule no longer has any
“if the Governor has declared a state of disaster emergency due to a public health
in 2012 and no longer exists. 59 So by the terms of the rule itself, subsection (g) cannot
be invoked.
56
Ex parte Quirin, 317 U.S. 1, 41-42 (1942).
57
State v. Grant Superior Court, 172 N.E. 897, 900 (Ind. 1930).
58
Colo. S., H.R. Rules § Rule 44(g).
59
C.R.S. § 24-32-2104, repealed by Laws 2012, Ch. 240, § 55, eff. July 1, 2012.
22
But even when C.R.S. § 24-32-2104 was in effect, the General Assembly
completely ignored the rule. The rules states that calendar days “shall be counted as
one hundred twenty separate working calendar days.” 60 “Shall” mandates action –
action which the General Assembly has never taken, even though there were
numerous declared disaster emergencies in 2010, 2011, and 2012. The General
Assembly has never taken Rule 44(g) seriously, and this Court should not take it
seriously, either.
And this consistent practice is not limited to the legislature. Court rules treat
“days” as calendar days, and those days are always consecutive days.61 And Colorado
statute frequently refers to “calendar days,”62 which are always treated as consecutive
days. 63 The fact that “calendar days” means consecutive days is well-established
60
Colo. S., H.R. Rules § Rule 44(g).
61
See, e.g. C.R.C.P. Rule 6.
62
C.R.S. § 1-40-118.
Oakwood Holdings, LLC v. Mortgage Investments Enterprises LLC, 410 P.3d 1249,
63
23
A 120-day limit to the legislative session has profound consequences, because
legislators must complete all of their work within a very limited amount of time. This
time frame does not only apply to formal actions such as introduction of a bill, time
to vote it through a committee, and time to debate it on the House or Senate floor.
developing a consensus (or at least a majority) to pass a bill. Building a majority takes
place during a 12-day period, when constituents can focus on legislative action and
devote time to making their views known. Thus, a 120-day timeframe focuses not just
Allowing the legislature to start and stop the legislative calendar – based on
“declared disaster emergencies which occur very frequently – would upend this
but could instead temporarily adjourn for tactical reasons. And it could adjourn with a
simple majority. This would substantially increase the power of a simple legislative
majority – it could adjourn in order to let heated issues “cool off,” and then pass
opportune time for specific legislation. And it could also temporarily adjourn to give
24
Fundamentally, this would work a great hardship on citizens who wish to
monitor and participate in the legislative process. Instead of having the opportunity to
plan ahead and rearrange a schedule for a 120-day session from January to May, they
would have to be prepared to participate during a much, much longer period. Indeed,
a 120-day legislative session from January to May is not merely for citizen-legislators.
It also impacts Colorado citizens who may have limited availability to focus on the
legislative session.
legislators must complete work expeditiously. Thus, they cannot pass bills unless
legislate outside that limited timeframe. This also fosters a greater consensus. But
“declared disaster emergency” undermines the laws that foster consensus. And any
Conclusion.
FOR THESE REASONS, this Court should interpret “calendar days” to mean
consecutive days.
25
GESSLER LAW LLC
26
CERTIFICATE OF SERVICE
I hereby certify that on this 24th day of March 2020, I served a true and correct
copy of the foregoing by filing it with the court via ICCES and e-service on the
following:
27
Colorado Attorney General
1300 Broadway
Denver, CO 80203
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Via E-Service:
Jason Andrew Gelender, Esq.
Attorney for Interrogatory
s/ Joanna Bila
Joanna Bila, Paralegal
28