COLORADO SUPREME COURT

Colorado State Judicial Bldg.

2 E. 14th Ave., 4th Floor
Denver, CO 80203
Original Proceeding Pursuant to
Colo. Const. art. IV, Sec. 3

IN RE Interrogatory as submitted by the Colorado

General Assembly
Court Use Only 

Attorneys for Chris Paulson: Case No.: 2020SA100

Scott E. Gessler, Atty Reg No. 28944
Gessler Law LLC
1801 Broadway, Suite 507
Denver, Colorado 80202
Tel: 720-839-6637
[email protected]

AMENDED BRIEF OF CHRIS PAULSON

 TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................iv

CERTIFICATE OF COMPLIANCE.......................................................... 1
Statement of Issues Presented for Review. .................................................2
Statement and Nature of the Case. ...............................................................2
Proceedings and Disposition Below. ...........................................................3
Argument. ........................................................................................................... 3
I. THIS COURT SHOULD NOT ALTER CONSTITUTIONAL
LANGUAGE ON THE BASIS OF A “DECLARED
DISASTER EMERGENCY.”. .............................................................3
A. The meaning of a constitutional phrase does not fluctuate based on a
“declared disaster emergency.” .................................................................. 3
B. Declared disaster emergencies” are common occurrences that have
never limited the General Assembly’s ability to convene. ..........................4
C. Even under the current “declared disaster emergencies,” the General
Assembly has the legal authority to convene and pass legislation. ......... 10
II. THE GENERAL ASSEMBLY POSSESSES MANY
REASONABLE OPTIONS TO CONVENE NOW, AND
TO CONVENE AFTER ADJOURNMENT SINE DIE ON
MAY 6, 2020 ............................................................................... 11
A. The General Assembly can meet, now...................................................... 11
B. The General Assembly can meet after COVID-19 pandemic abates, in a
regular or a special session........................................................................ 15
III. Interpreting “Calendar Days” As Non-Consecutive Days Will
Upend A Universally Agreed-Upon Interpretation. ..................... 19
A. “Calendar days” means consecutive days, not legislative days. .............. 19
B. The regular calendar controls the legislative session. Allowing the
General Assembly to start and stop the calendar will fundamentally
alter the lawmaking process ...................................................................... 23

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.

In response to each issue raised, the appellee must provide under a

separate heading before the discussion of the issue, a statement indicating
whether appellee agrees with appellant’s statements concerning the standard
of review and preservation for appeal and, if not, why not.

I acknowledge that my brief may be stricken if it fails to comply with any of

the requirements of C.A.R. 28 or 28.1, and C.A.R. 32.

s/Scott E. Gessler
Scott E. Gessler, #28944

1
Statement of Issues Presented for Review

Do frequently-occurring “declared disaster emergencies” justify changing the

uniform interpretation that “calendar days” in Article V, §7 means consecutive days,

especially if the General Assembly has adequate ways to convene once the current

COVID-19 pandemic abates?

Statement and Nature of the Case

The plain language of Section 7 of Article V of the Colorado Constitution

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

an ill-conceived standard; declared disaster emergencies are extremely common and

have no bearing on whether the General Assembly can, in fact meet. Constitutional

interpretation does not change based upon a “declared disaster emergency.”

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

schedule and workflow from consecutive days to non-consecutive days would

2
fundamentally alter law-making dynamics, make it more difficult for constituents to

focus on legislative activity, and reduce consensus in lawmaking.

Proceedings and Disposition Below.

There were no proceedings below as this is a direct inquiry by the General

Assembly of a specific question to this Court.

Argument.

I. THIS COURT SHOULD NOT ALTER CONSTITUTIONAL

LANGUAGE ON THE BASIS OF A “DECLARED DISASTER
EMERGENCY.”

A. The meaning of a constitutional phrase does not fluctuate based on a

“declared disaster emergency.”

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

General Assembly seeks to interpret calendar days as non-consecutive days only

during a declared disaster emergency. Outside of the declared emergency, “calendar

days” remain consecutive days.

3
 But the constitutional language does not give the General Assembly discretion

to vary the meaning of “calendar days” based on different circumstances. In other

words, the meaning of “calendar days” does not alternate between consecutive days

or non-consecutive days, depending on whether a national emergency exists.

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

interpretation is, in general, reasonable, but should not be followed in certain

circumstances.”2 Conceptually, “calendar days” can mean either consecutive days (as

discussed below) or non-consecutive days – but it cannot mean one thing during

disasters emergencies, and a completely different thing during other times.

B. “Declared disaster emergencies” are common occurrences that have

never limited the General Assembly’s ability to convene.

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

emergency” under Colorado law. 3 Indeed, declared disaster emergencies occur

regularly in Colorado -- so common, that Coloradans (and the General Assembly)

hardly take notice.

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-

declarations of previously-declared disaster emergencies. 5

During Governor Hickenlooper’s two terms in office, the pace increased -- he

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,

declaring seven disaster emergencies in just 2019.7,8

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

declared disaster emergency, as follows:

Executive order Duration of Period disaster emergency was in

declaring disaster emergency effect
emergency
D 2018 0319 15 days December 24, 2019 to January 8, 2020

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

Despite this plethora of overlapping declared disaster emergencies, the General

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.

Declared disaster emergencies are rarely as dramatic or unique as the current

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

emergencies for a fugitive, 14 propane gas shortages, 15 snowstorms,16 rockfalls,17 a

hurricane,18 and even an unusually large wheat harvest. 19

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

is, of course, straightforward – many disasters affect a limited number of people or

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,

allowing extra trucking hours to move wheat, or mobilizing resources to assist

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

Assembly’s meeting schedule. “Disaster” broadly includes “the occurrence or

imminent threat of widespread or severe damage, injury, or loss of life or property.”21

To be sure, it can specifically include a pandemic of a highly virulent strain of the

influenza virus, 22 which is what Colorado faces today. But it also includes the

temporary threatened interruption of propane gas deliveries to rural parts of Colorado

during winter, or difficulties moving a bountiful wheat harvest.

The reason, of course, that governors (and presidents) rely heavily on disaster

declarations is that the governor may rapidly provide relief, such as providing

additional resources to those in need or suspending governmental regulations that

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

legislature may deem “calendar days” to be nonconsecutive. Outside of the immediate

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

blanket most of the General Assembly’s regular session. Accordingly, there is no

special or urgent reason to use “declared disaster emergency” as a basis for

interpreting “calendar days” to be non-consecutive days.

C. Even under the current “declared disaster emergencies,” the General

Assembly has the legal authority to convene and pass legislation.

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

disaster emergency.” As noted above, “declared disaster emergencies” have never

limited the General Assembly, and even the Governor’s most recent executive order

requiring in-person workforce reductions specifically exempts “governmental

23
C.R.S. § 24-33.5-704(7)(a) through (j).

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

joint resolution. 25 When searching for legal standards, it is important to understand

that none of the current executive orders that respond to the COVID-19 pandemic by

declaring a disaster emergency stop the General Assembly from meeting.

II. THE GENERAL ASSEMBLY POSSESSES MANY

REASONABLE OPTIONS TO CONVENE NOW, AND TO
CONVENE AFTER ADJOURNMENT SINE DIE ON MAY
6, 2020.

The immediate practical issue of convening the legislature is distinct from the

legal issue of whether “calendar days” means consecutive or non-consecutive days.

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.

A. The General Assembly can meet, now.

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

experience from other jurisdictions, Colorado’s past history, and technological

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

Colorado’s Senators) have self-quarantined.26 That has reduced the number of

Senators who can participate, but the Congress remains in session.

Likewise, many state legislatures remain in session. As of March 23, 2020, this

included fourteen jurisdictions: Massachusetts, New Jersey, Pennsylvania, Ohio,

26
Brooke Singman, These US senators are in self-quarantine over coronavirus threat,
Fox News (Mar. 23, 2020),
https://www.foxnews.com/politics/these-u-s-senators-are-in-self-quarantine-over-
coronavirus (last visited Mar. 23, 2020).

12
Michigan, Kentucky, South Carolina, Puerto Rico, Guam, Missouri, South Dakota,

Oklahoma, Arizona, Alaska, remained in session. 27 This number, however, fluctuates

as some legislatures suspend operations, while others convene to pass important

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

Historically, the Colorado Legislature convened from January 1, 1919 until

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,

that enable it to streamline operations in order to pass legislature during emergencies.

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

nonetheless accomplish important work. Finally, it is easier for legislative committees

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

Emergency Epidemic Response Committee recognized that the General Assembly

had the capability to take remote testimony,37 which it has implemented.38 And

electronic voting is currently used by other governmental jurisdictions. To be sure, the

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

other governmental bodies have successfully implemented remote meetings.

Fundamentally, these are issues that can be solved. They do not require this Court to

step in and change the meaning of “calendar days.”

B. The General Assembly can meet after COVID-19 pandemic abates, in a

regular or a special session.

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

Staff Summary of Meeting, Legislative Emergency Epidemic Response

37

Committee, June 13, 2008 (Exhibit C).

38
Colo. Gen. Assembly, Remote Testimony, http://leg.colorado.gov/remote-
testimony (last visited March 23, 2020).
39
Pet. to Accept Interrog. of the Colo. Gen. Assembly, p. 2.

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

months.”40 Optimistically, Denver and Colorado could be back to business as normal

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,

COVID-19 is a temporary pandemic that does not justify rushed constitutional

interpretation. Although little comfort to those deeply suffering now, from a long-

term perspective, this too, shall pass.

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

“Committee on Legislative Emergency Epidemic Response.” The challenge for the

committee was to “devise a method of the legislature to conduct business, perhaps

virtually, in the event of a state pandemic,”41 and early on it reviewed previous

Things will get worse before they get better (Mar. 15, 2020), ABC News,
40

https://www.youtube.com/watch?v=zkH2rLIeU7A, at 2:46 (last visited March 24,

2020).

Staff Summary of Meeting, Legislative Emergency Epidemic Response

41

Committee (Feb. 8, 2008) (Exhibit C).

16
outbreaks in 1918, 1957, 1968. It also recognized that the “main activity of the

legislature is passage of the annual budget bill. 42 To be sure, Legislative operations

during influenza epidemics present “cost[s] . . . logistical hurdles . . . and time.”43 That

committee discussed many of the exact same issues facing the General Assembly

today – it considered social distancing, relocating the seat of state government,

restrictions on meetings, seeking Supreme Court interrogatories for a pandemic,

abbreviated agendas, constitutional constraints, changes in law, the ability of the

legislature to meet between infection “waves. 44 Importantly, the committee

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

the opportunity to address these issues moving forward.

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.

Staff Summary of Meeting, Legislative Emergency Epidemic Response

44

Committee, Feb. 8, 2009 (Exhibit C).

Staff Summary of Meeting, Legislative Emergency Epidemic Response

45

Committee, Mar. 8, 2009 (Exhibit C); Staff Summary of Meeting, Legislative

Emergency Epidemic Response Committee, June 13, 2008 (Exhibit C).

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

until the start of the next regular session in 2021.

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

meet during that time.

To be sure, the current membership of the General Assembly may prefer a

simple majority over a two-thirds majority. But Section 7 of Article V reflects a

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

not meet during regular session.

III. Interpreting “Calendar Days” As Non-Consecutive Days Will

Upend A Universally Agreed-Upon Interpretation.

As discussed above, “declared disaster emergencies” – including the declaration

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

forms the foundation of the General Assembly’s scheduling and workflow.

A. “Calendar days” means consecutive days, not legislative days.

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

has uniformly rejected treating consecutive calendar days as non-consecutive

legislative days. For example, “calendar day” is defined as “a consecutive 24-hour day

running from midnight to midnight. 49 Meanwhile, a legislative day is expressly defined

to include a non-consecutive day: “a day that begins when a legislative body

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

amend or clarify that law.”52

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,

that state Supreme Court refused to limit express constitutional authorization of

“legislative days” to the more restrictive term of “calendar days.”55

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

days” as consecutive days.

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

operational effect. Specifically, the rule purportedly allows non-consecutive counting

“if the Governor has declared a state of disaster emergency due to a public health

emergency pursuant to section 24-32-2104.” 58 But C.R.S. § 24-32-2104 was repealed

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

throughout Colorado law.

B. The regular calendar controls the legislative session. Allowing the

General Assembly to start and stop the calendar will fundamentally alter
the lawmaking process.

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

1253-1254 (Colo. 2018).

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.

Just as importantly, it applies to the informal – and critically important – process of

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

legislative efforts – it also focuses Colorado residents.

Allowing the legislature to start and stop the legislative calendar – based on

“declared disaster emergencies which occur very frequently – would upend this

dynamic. The General Assembly would no longer be constrained by a hard deadline

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

legislation at a more favorable time. Likewise, it could reconvene at a particularly

opportune time for specific legislation. And it could also temporarily adjourn to give

itself more time to build a majority for a legislative issue.

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.

Currently, the Colorado Constitution fosters consensus in two ways. First,

legislators must complete work expeditiously. Thus, they cannot pass bills unless

majority can be found within a reasonable timeframe. Second, the Constitution

requires legislators to muster a two-thirds majority (or convince the governor) to

legislate outside that limited timeframe. This also fosters a greater consensus. But

allowing non-consecutive days, even if triggered by the common occurrence of a

“declared disaster emergency” undermines the laws that foster consensus. And any

loss of consensus should be greatly troubling.

Conclusion.

FOR THESE REASONS, this Court should interpret “calendar days” to mean

consecutive days.

Respectfully submitted this 24th day of March 2020,

25
 GESSLER LAW LLC

By: s/ Scott E. Gessler

Scott E. Gessler

Attorneys for Chris Paulson

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:

Via E-Service: Via E-Service:

John Walsh, Esq. Troy A. Eid, Esq.
Ken Salazar, Esq. Josiah E. Beamish, Esq.
Michael J.P. Hazel, Esq. Greenberg Traurig, LLC
Matthew Worthington, Esq. 1133 15th St., Suite 3300
Mairead K. Dolan, Esq. Denver, CO 80202
Heidi K. Ruckriegle [email protected]
WILMER CUTLER PICKERING HALE AND [email protected]
DORR, LLP
1225 Seventeenth Street, Suite 2600 Attorney for 40 Individual Members of the
Denver, CO 80202 Colo. Gen. Assem.
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]

Attorneys for Colorado General Assembly

Via E-Service Via E-Service:

Natalie Hanlon, Esq. Matthew Fritz-Mauer, Esq.
Eric R. Olson, Esq. The Kelman Buescher Firm
Kurtis T. Morrison, Esq. 600 Grant Street, Suite 825
Terry Gill, Esq. Denver, CO 80203
Russell D. Johnson, Esq. [email protected]
Noah C. Patterson, Esq. Attorney for Colorado Association of Local
Jefferey D. Riester, Esq. Public Health Officials
Elisabeth Mabus, Esq.
Adam T. Rice, Est.

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]

Attorney for Respondent Philip Weiser

Via E-Service:
Jason Andrew Gelender, Esq.
Attorney for Interrogatory

s/ Joanna Bila
Joanna Bila, Paralegal

28