Legislative leaders wade into legalities of suspending operations

“None of us have ever been here before.”

Calls both inside and outside the Capitol are growing louder to put the General Assembly into recess, to prevent an outbreak of COVID-19 coronavirus in the Gold Dome, where thousands of people regularly walk through the halls daily.

The unprecedented nature of the situation has led lawmakers to dig into the rule books and carefully parse the language in those rules over how to proceed with any potential recess or shutdown. They fear that if the actions being contemplated aren’t up to snuff legally, it could make a bad situation worse.

With that in mind, the lawmakers will likely look to get a second opinion from the state's high court.

One of the biggest questions is if the General Assembly decided to adjourn — or if the decision is made for them — is just how to handle the state’s business, including crafting next year’s state budget. Other questions include when an adjournment would start, how long would it last, and how it would work. Do they adjourn for more than three days — the minimum required — and lose the days that they’re out? Or can they adjourn for as long as needed, even a month, with the calendar frozen in time until they come back?

On Tuesday, Sharon Eubanks, director of the Office of Legislative Legal Services, told the executive committee — the six legislative leaders of the General Assembly — that she believed the General Assembly did not have to meet for 120 consecutive days, leaving open the possibility that they could adjourn with no time lost. But it's not an opinion that everyone shares.

The difference could be monumental. And it’s ground that no lawmaker, former lawmaker, lobbyist or anyone else in the state has any experience with, according to Senate Minority Leader Chris Holbert, R-Parker.

What the Constitution says

The state Constitution — Article 5, section 7 — says that the General Assembly session “shall not exceed 120 calendar days.”

Going off of Eubanks' recommendation, lawmakers could adjourn the General Assembly, maybe for two weeks or a month (those are the time limits getting more and more talk ), and then come back without a day of work lost.

But some lawmakers aren’t quite so confident and want a second opinion. And for that, they could turn to the Colorado Supreme Court, through a letter known as an interrogatory, that would ask the Court to decide the issue. Speaker of the House KC Becker acknowledged Thursday that the issue is constitutional and that discussions are ongoing about submitting that question to the state’s high court.

The possibility of an interrogatory was raised in the state Senate on Wednesday by Republicans who want to be sure.

Holbert told Colorado Politics the risk is that if they’re wrong about the issue of consecutive days, anyone who doesn’t like a law passed by the General Assembly after they come back could sue and the law could be nullified, claiming the General Assembly’s actions were unconstitutional. 

“It’s never been done,” he said. "If we do it and get it wrong, and someone challenges a bill passed after May 6, the Constitution says that law would be nullified.  Shouldn’t we do this right?”

For right now, the General Assembly doesn’t have an immediate health emergency in the Capitol, Holbert said, so it would be better to get the Supreme Court to weigh in now, and not wait until the CDPHE closes the statehouse, he said.

“I feel very comfortable that there isn’t political gamesmanship, and that the six members of the Executive Committee are trying to figure out what to do... . We want to do what’s right. This is serious.”

The rules in play

Joint Rule 23(d), which is what governs the calendar of the General Assembly during a normal session, says that the 120 days shall be deemed “consecutive calendar days.”

But Polis’ declaration of a state of emergency likely triggered the General Assembly’s Joint Rule 44, which governs how the General Assembly operates in a public health emergency. Joint Rule 44(g) says that the 120 days are “separate working calendar days,” which seems to indicate that those days would not need to be consecutive.

But that rule might not be the final word on the matter.

Sen. Bob Gardner, R-Colorado Springs, raised the issue in the state Senate Wednesday. He said he looked into how the session was set at 120 days, which is a fairly recent change, one approved by voters in 1988 (previous to that, the session was 140 days). The 1988 Blue Book, Gardner said, included among its arguments in favor of going to 120 days that the proposal “would ensure that the limitation cannot be changed by statute or legislative rule.” [emphasis added]

The Blue Book further said that 120 days would guarantee adjournment on a date certain — like May 6 for this year — so that citizens legislators can plan for the time necessary to participate in the legislative process. In addition, the Blue Book said, state emergencies can still be addressed by special sessions called by the governor or by a two-thirds vote of both chambers of the General Assembly.

If the General Assembly believes Joint Rule 44 “allows us to disregard the common understanding, that sessions cannot exceed 120 calendar days, we need to think of this pretty seriously,” Gardner said.

Gardner said he believed the section of Joint Rule 44 that allows for non-consecutive days is unconstitutional. “We have no authority to pass any law or take further action” after May 6, he said, and asked that the General Assembly run a resolution to send those interrogatories to the Court.

Majority Leader Steve Fenberg pointed out that the legislature’s Executive Committee has discussed the consecutive day issue with their legal counsel and other experts, as well as looking at their options. ”We are not doing anything different at this moment on how we proceed,” Fenberg said. He called the situation “a strange moment...We don't want to overreact; we want to make sure that folks stay calm and understand the severity of the situation but that it doesn’t spiral out of control.”

There is a crisis going on, Fenberg said. “Public health is at stake, People are dying.” He asked that lawmakers put aside partisan differences, pointing out that lawmakers haven’t acted on the authority granted under Joint Rule 44. “We need to listen to the experts, take a deep breath and decide what the next steps are.”

County and state assemblies

Should the General Assembly decide to adjourn, it wouldn’t happen overnight. While Joint Rule 44 points out that there are some bills that the legislature must deal with — the budget and the school finance act are specifically named — there’s at least one bill that lawmakers would have to deal with that hasn’t even been introduced yet, and that’s on the political parties’ upcoming county and state assemblies.

State law requires the parties’ county assemblies take place no later than 25 days after the precinct caucuses, which would be no later than April 1. Smaller counties are starting their assemblies this weekend.

The state assemblies, also by law, must be held no later than 73 days before the June 29 primary, meaning no later than April 18, according to the Secretary of State’s calendar.

The timeline isn’t the only issue. It’s also in who participates in assemblies: more often than not, older Coloradans. That comes at a time when Polis has advised Coloradans over the age of 60 and those with chronic health issues to avoid large crowds, and assemblies in large counties and the state assemblies certainly qualify, with hundreds gathering in convention halls and other similar facilities.

If lawmakers can’t act fast enough, or the state Capitol is closed due to an outbreak — a decision that can be made by the Colorado Department of Public Health and Environment — what can the assemblies do? That’s where the governor’s authority may play a role.

A 10-page memo on March 10 from the office of Legislative Legal Services sheds light on the governor’s constitutional and statutory authority in the event of a declared emergency. The memo said his powers are limited under the constitution, but much broader under state statutes.

As it applies to the operations of state government, the memo says the governor can suspend a statute that “prescribes the procedures for conducting state business or the rules of any state agency, if strict compliance ... would prevent or delay necessary action in coping” with the disaster.

The memo outlines a number of other actions the governor can take, such as issuing an executive order that would allow the “procuring or taking supplies of medicines and vaccines,” ordering doctors and hospitals to transfer or stop admitting patients, isolating or quarantining people or property, determining how to safely dispose of corpses and infectious waste, and informing citizens on how to protect themselves and declaring when the epidemic is over.

Additional statutory authority includes commandeering property, compelling the evacuation of people from threatened areas, providing for emergency housing, and suspending or limiting the sale of alcoholic beverages, firearms, explosives or combustibles.

Holbert, who was among the lawmakers who asked for the memo, said it was helpful although he had been unaware of how much authority the governor has. He dismissed any notion that the governor would suspend alcohol or firearms sales, which would probably be limited to a declaration of martial law or insurrection. “We’re not there and I wouldn’t theorize about what the world would be like if we get there, a zombie apocalypse kind of thing.”

But he also pointed out that “none of us have been here before.” He noted that he and Becker have been on the executive committee the longest, and they’ve never talked about anything like this.

He’s suggested that training, at a minimum just making lawmakers aware of what’s available, should take place, and future training could use the 2020 experience, he said.

Neither the memo nor Joint Rule 44 address the absence of a written executive order, Holbert said, although he does believe the governor has issued a verbal order declaring the emergency. Update: the governor issued a written executive order on March 11 that was released to the public on Thursday.

Another issue raised in the past day has been whether lawmakers are trying to make political hay with the situation. Holbert dismisses that idea. 

“Some people have tried to find the political gamesmanship” in this situation, he said. “It doesn’t exist.”

He added that while he, Garcia and Fenberg have been politically “bare-knuckled” in the past — the lawsuit last year over how to read bills at length was a prime example — once the three left the Senate floor Wednesday the conversation turned to the possibility of asking the Court for its views on the consecutive day issue.

If the interpretation of Legislative Legal Services is correct, adjourning for a week or month wouldn’t matter, Holbert said. “There would be no political game.”