Colorado’s second-highest court has ruled that two Republican legislators may proceed with their challenge to a landmark gun safety law after allegedly being denied their constitutional right to have the legislation read at length.

A three-judge panel for the Court of Appeals on Wednesday partially reversed a Denver judge’s decision that initially labeled the lawsuit a “political question,” in which courts should not intrude on the prerogatives of the other branches of government. Since his decision, the state Supreme Court decided in an unrelated case that the judicial branch may, in fact, review whether the legislature complied with the constitutional mandate for the reading of bills.

The appellate panel relied on that case in ruling that Reps. Dave Williams, R-Colorado Springs, and Lori Saine, now a Weld County commissioner, could litigate whether the presiding officer of the House of Representatives infringed on their state constitutional right to have a bill be read at length in the absence of unanimous consent otherwise.

“‘Unanimous’ isn’t an ambiguous term. It means ‘having the agreement and consent of all without dissent’,” wrote Judge Jerry N. Jones for that panel. “It follows that both Representative Saine and Representative Williams had a legally protected interest in having the bill read in full at their request.”

The bill at issue is the 2019 “red flag law,” which established extreme risk protection orders for surrendering firearms in the event that a person poses a significant risk of causing harm to themselves or others. The legislation took effect in January 2020, and the attorney general’s office reported that it was invoked 111 times during the calendar year, mostly involving individuals with mental health or substance abuse issues.

A 2020 review of extreme risk protection order studies by the RAND Corporation found no conclusive evidence that they decrease the incidence of violent crime or mass shootings, but some findings suggest that the red flag protocols may lower suicide rates.

The advocacy group Rocky Mountain Gun Owners, along with then-House Minority Leader Patrick Neville, R-Castle Rock, filed a lawsuit with Saine and Williams at the end of the 2019 legislative session. The plaintiffs claimed that Saine and Williams attempted to have the Deputy Zackari Parrish III Violence Prevention Act, as the bill was titled, read in its entirety on the House floor. The denial of those requests, they alleged, violated the rights given to legislators in the state constitution.

In opposing the lawsuit, the Colorado Attorney General’s Office asserted that the presiding officer of the House of Representatives, then-Rep. Jovan Melton, D-Aurora, ruled Williams’ request improper and Saine’s request out of order for not stating a proper motion. Rep. Stephen Humphrey, R-Ault, did successfully make a motion to read the bill at length, but he withdrew it after the reading began.

Saine, Williams and Neville claimed they had standing as legislators to sue and vindicate their constitutional right to a full reading of the bill. Rocky Mountain Gun Owners argued it had standing as a taxpayer.

Denver District Court Judge Eric M. Johnson dismissed the lawsuit after determining he did not have jurisdiction to rule on the political question. But while the appeal was pending, the Colorado Supreme Court decided in Markwell v. Cooke that the judicial branch may review alleged violations of the constitution’s bill-reading clause.

The appellate panel relied heavily on the Markwell decision in ruling that the red flag litigation can continue on the merits. Saine, who in 2020 sponsored a bill to repeal the red flag law, said on Wednesday that the lawsuit’s ultimate goal is to nullify the legislation.

“This just makes my point all along: essentially an unconstitutional bill was passed unconstitutionally,” she said. “If they’re willing to abuse my constitutional rights as a state legislator, they will almost certainly abuse citizens’ rights with the red flag law.”

During oral arguments, the government asserted that the lawmakers needed to show how the lack of a bill reading had caused them to remain in the dark about what the red flag legislation said. The appellate panel pushed back on the notion that Saine and Williams needed to suffer that specific injury in order to sue.

“The drafters of the constitution, using that language – unanimous consent – in my view that implies that each individual legislator has the right to not consent,” said Judge Rebecca R. Freyre. “And so doesn’t the constitution give each elected official the right to either consent or not consent? And depriving them of that right that the drafters of the constitution saw fit to put in, isn’t that the injury?”

At one point, Assistant Solicitor General Grant T. Sullivan suggested that the plaintiffs were more concerned about overturning the legislation than addressing a constitutional violation, given that they waited two months to file a civil complaint. His comments prompted a rebuke from Jones.

“It sounds like a deflection, frankly,” Jones said. “That complaint has a clear allegation of injury by virtue of failing to read the bill in accordance with the constitution. So why don’t you focus on that?”

The panel also rejected the government’s argument that Saine and Williams should have turned to the House’s own procedures for appealing rulings of the presiding officer, as doing otherwise would force courts to second-guess the decisions of legislative leaders.

The appellate judges did agree, however, that neither Rocky Mountain Gun Owners nor the Republican lawmakers had standing to sue only as taxpayers.

In a statement after the ruling, the gun-rights group indicated it was a step closer to overturning the “egregious gun confiscation scheme.” A signature gun safety achievement of Democratic lawmakers, the Violence Prevention Act drew opposition from some Republican sheriffs who vowed not to enforce it.

The case is Rocky Mountain Gun Owners et al. v. Polis.