SUPREME COURT, STATE OF COLORADO
2 East 14th Avenue
Denver, Colorado 80203

DATE FILED: March 24, 2020 12:52 PM
FILING ID: 26421F7D9CD92
CASE NUMBER: 2020SA100

Original Proceeding Pursuant to
COLO. CONST., art. VI, § 3
 
In Re: Interrogatory on House Joint Resolution 20-1006
Submitted by the Colorado General Assembly.
GREENBERG TRAURIG, LLP
TROY A. EID
Atty. # 21164
JOSIAH E. BEAMISH
Atty. # 52445
1144 15th St., Suite 3300
Denver, CO 80202
Phone: 303-572-6500
Fax: 303-572-6540
Email: eidt@gtlaw.com
beamishj@gtlaw.com
ATTORNEYS FOR:
Senator Robert S. Gardner
Senator John Cooke
Senator Don Coram
Senator Larry Crowder
Senator Owen Hill
Senator Dennis Hisey
Senator Chris Holbert
Senator Paul Lundeen
Senator Vicki Marble
Senator Kevin Priola
Senator Bob Rankin
Senator Ray Scott
Senator Jim Smallwood
Senator Jerry Sonnenberg
Senator Jack Tate
Senator Rob Woodward
Representative Mark Baisley
Representative Rod Bockenfeld
Representative Perry Buck

COURT USE ONLY
Case No. 2020SA100

 Representative Terri Carver
Representative Marc Catlin
Representative Richard Champion
Representative Timothy Geitner
Representative Richard Holtorf
Representative Steve Humphrey
Representative Lois Landgraf
Representative Colin Larson
Representative Larry Liston
Representative Hugh McKean
Representative Patrick Neville
Representative Rod Pelton
Representative Kim Ransom
Representative Janice Rich
Representative Lori Saine
Representative Shane Sandridge
Representative Matt Soper
Representative Kevin Van Winkle
Representative Perry Will
Representative Dave Williams
Representative Jim Wilson
BRIEF OF 40 INDIVIDUAL MEMBERS
OF THE COLORADO GENERAL ASSEMBLY

 CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of C.A.R. 28
and C.A.R 32, including all formatting requirements set forth in these rules.
Specifically, the undersigned certifies that:
The brief complies with C.A.R. 28(g) as it contains 6,058 words.
The brief complies with C.A.R. 28(k) as it contains under separate heading a
concise statement of the applicable standard of appellate review with citation to
authority.
I acknowledge that my brief may be stricken if it fails to comply with any of
the requirements of C.A.R. 28 and C.A.R 32.

/s/ Troy A. Eid
Troy A. Eid
 

iii

 TABLE OF CONTENTS
CERTIFICATE OF COMPLIANCE ....................................................................... iii 
TABLE OF AUTHORITIES ..................................................................................... v 
INTRODUCTION ..................................................................................................... 1 
ISSUE PRESENTED ................................................................................................. 3 
SUMMARY OF THE ARGUMENT ........................................................................ 4 
ARGUMENT ............................................................................................................. 5 
I. 

THE PLAIN LANGUAGE OF SECTION 7 OF ARTICLE V OF
THE COLORADO CONSTITUTION LIMITS THE REGULAR
LEGISLATIVE SESSION EACH YEAR TO 120 CONSECUTIVE
CALENDAR DAYS........................................................................................ 5 

II. 

THE LEGISLATIVE HISTORY OF SENATE CONCURRENT
RESOLUTION NO. 1, APPROVED OVERWHELMINGLY BY
COLORADO VOTERS AS AMENDMENT NO. 3 IN 1988, REFLECTS
A CONSENSUS AMONG SUPPORTERS AND OPPONENTS ALIKE
THAT THE ANNUAL REGULAR SESSION SHALL BE LIMITED
TO 120 CONSECUTIVE CALENDAR DAYS ........................................... 10 

III. 

RULE 44(G) IS UNCONSTITUTIONAL BECAUSE IT PURPORTS
TO AMEND LANGUAGE IN THE COLORADO CONSTITUTION,
YET THE POWER OF AMENDING THE CONSTITUTION
RESIDES SOLELY WITH THE PEOPLE ................................................... 19 

IV. 

THE CONSTITUTION ALREADY PROVIDES ALTERNATIVE
MEANS FOR ENSURING LEGISLATIVE ACTION DURING A
DECLARED DISASTER EMERGENCY, INCLUDING THE
AUTHORITY OF BOTH THE GOVERNOR AND THE GENERAL
ASSEMBLY TO CONVENE IN SPECIAL SESSION AFTER THE
120-DAY REGULAR SESSION ADJOURNS SINE DIE
ON MAY 6, 2020 .......................................................................................... 23 

iv

  

TABLE OF AUTHORITIES
Cases 
Alexander v. People,
167, 2 P. 894 (Colo. 1884)...............................................................................5
Andersen v. Indus. Comm’n,
447 P.2d 221 (Colo. 1968)...............................................................................8
City of Englewood v. Indus. Claim Appeals Office,
954 P.2d 640 (Colo. App. 1998)......................................................................8
Cooper Motors, Inc. v. Bd. of County Comm’rs,
279 P.2d 685 (Colo. 1955)...............................................................................6
Griffin v. S.W. Devanney & Co.,
775 P.2d 555 (Colo. 1989)...................................................................... 10, 11
In re Interrogatories Relating to the Great Outdoors Colo. Trust Fund,
913 P.2d 533 (Colo. 1996)...............................................................................6
Korematsu v. United States,
323 U.S. 214 (1944).......................................................................................22
Nguyen v. Indus. Claim Appeals Office,
174 P.3d 847 (Colo. App. 2007)......................................................................7
Oceanic Steam Navigation Co. v. Stranahan,
214 U.S. 320 (1909).......................................................................................21
People ex rel. Juhan v. District Court,
439 P.2d 741 (Colo. 1968).............................................................................20
People v. Rodriguez,
112 P.3d 693 (Colo. 2005)...........................................................................5, 6
People v. Zhuk,
239 P.3d 437 (Colo. 2010)...............................................................................7
Reale v. Bd. of Real Estate Appraisers,
880 P.2d 1205 (Colo. 1994)...........................................................................20

v

 Trump v. Hawaii,
Slip Op. No. 17-965 (June 26, 2018).............................................................22
Walker v. Bedford,
26 P.2d 1051 (Colo. 1933)...................................................................... 22, 23
Wilson v. New,
243 U.S. 332 (1917).......................................................................................21
Yenter v. Baker,
248 P.2d 311 (Colo. 1952).............................................................................20
Statutes 
C.R.S. § 1-12-117, (2019) ..........................................................................................8
C.R.S. § 1-40-118, (2019) ..........................................................................................8
C.R.S. § 8-43-204, (2019) ..........................................................................................8
C.R.S. § 8-74-103, (2019) ..........................................................................................9
Other Authorities 
Amendment No. 3, Constitutional Amendment
Proposed by the General Assembly, BLUE BOOK (1988) ..........................13
Amendment No. 4, Constitutional Amendment
Proposed by the General Assembly, BLUE BOOK (1982) .................. passim
Audio Transcription of Senate Concurrent Resolution,
House 2nd Reading, (Mar. 28, 1988) ............................................................15
Audio Transcription of Senate Concurrent Resolution,
Senate 2nd Reading (Jan. 15, 1988) ..............................................................16
Audio Transcription of Senate Concurrent Resolution,
Senate 3rd Reading (Jan. 25, 1988) ...............................................................18
Colorado Springs Gazette (Nov. 5, 1988) ...............................................................15
Constitutional Provisions 
COLO. CONST. art. V, § 7 ..........................................................................................24
vi

 COLO. CONST. art. IV, § 9 ........................................................................................24
COLO. CONST. art. V, § 1 ..........................................................................................19
COLO. CONST. art. XIX, § 2 .....................................................................................20
Legislative Materials 
Colo. S., H.R. Joint Rules § 23 (1984) ............................................................... 9, 13
Colo. S., H.R. Joint Rules § 44 (2009) ............................................................... 1, 21
H.R.J. Res. 20-1007, 72nd Leg., 2d Sess. (Colo. 2020) ..........................................23
 

vii

  

INTRODUCTION
The submitted Interrogatory, accepted by the Court on March 16, 2020,
inquires:
Does the provision of section 7 of article V of the state
constitution that limits the length of the regular legislative
session to “one hundred twenty calendar days” require that
those days be counted consecutively and continuously
beginning with the first day on which the regular legislative
session convenes or may the General Assembly for purposes
of operating during a declared disaster emergency interpret
the limitation as applying only to calendar days on which the
Senate or the House of Representatives, or both, convene in
regular legislative session?
The plain language of this constitutional amendment, approved
overwhelmingly by Colorado voters as Amendment No. 3 on November 8, 1988,
limits the regular legislative session each year to 120 consecutive calendar days.
COLO. CONST. art. V, § 5. The history of Senate Concurrent Resolution No. 1,
which became Amendment No. 3, explicitly reinforces the identical understanding,
as does the way the General Assembly – regardless which political party held the
majority in either or both houses – conducted its official business for the next 32
years.
The singular exception to the decades-old public consensus regarding the
120 consecutive calendar day limit is an obscure legislative provision, Joint Rule
44(g), adopted in 2009, which purports to count each of the 120 days separately –
1

 not consecutively – so long as (1) the accumulated 120 days all fall within the
same calendar year; and (2) the Governor has declared a disaster due to a public
health emergency. Colorado’s constitution is supreme to statutory law. Joint Rule
44(g) is not even a statute. Besides being unconstitutional, Rule 44(g) is not
necessary to address the declared public health emergency. The constitution
empowers the Governor to convene a special legislative session and likewise
authorizes the General Assembly to call itself back into session after the 120-day
calendar day limit has passed. Especially during this very serious time, respecting
the constitution, and the protections it provides all Coloradans, has never been
more important. Faced with previous emergencies – including during the depths of
the Great Depression in 1933-34 – this Court has insisted on adhering to the
constitution’s plain language and meaning, and honoring the will of the people
who create and preserve it, despite the formidable exigencies of the moment.

2

 ISSUE PRESENTED
Whether Joint Rule 44(g) of the Joint Rules of the Senate and House of
Representatives, adopted in 2009, is supreme to the plain language, legislative
history, and shared public understanding of section 7 of article V of the state
constitution, approved by Colorado voters as a referred measure in 1988, that
limits the length of the regulator legislative session of the Colorado General
Assembly to 120 consecutive calendar days with an adjournment sine die on May
6, 2020.

3

 SUMMARY OF THE ARGUMENT
1. The plain language of section 7 of article V of the state constitution limits
the regular legislative session each year to 120 consecutive calendar days.
2. The legislative history of Senate Concurrent Resolution No. 1 – approved
overwhelmingly by Colorado voters as a referred measure, Amendment No.
3, in 1988 – reflects a consensus among supporters and opponents alike that
the annual regular session shall be limited to 120 consecutive calendar days.
3. Rule 44(g) is unconstitutional because it either ignores or effectively
changes the plain language in the Colorado constitution, which only the
people may amend as the constitution itself provides.
4. The Constitution already provides alternative means for ensuring legislative
action during a declared disaster emergency, including the authority of both
the Governor and the General Assembly to convene in special session after
the 120-day regular session adjourns sine die on May 6, 2020.

4

 ARGUMENT
I.

THE PLAIN LANGUAGE OF SECTION 7 OF ARTICLE V OF THE
COLORADO CONSTITUTION LIMITS THE REGULAR
LEGISLATIVE SESSION EACH YEAR TO 120 CONSECUTIVE
CALENDAR DAYS.
The plain language of section 7 of article V is clear, contains no ambiguities,

and leaves no reasonable doubt that the legislative session shall be limited to 120
consecutive calendar days. The Court should honor the “ordinary and common
meaning” of the term calendar days because “[o]ur state constitution derives its
force . . . from the people who ratified it, and their understanding of it must control.
This is to be arrived at by construing the language, used in the instrument
according to the sense most obvious to the common understanding.” People v.
Rodriguez, 112 P.3d 693, 696 (Colo. 2005) (quoting Alexander v. People, 167, 2 P.
894, 900 (Colo. 1884) (internal quotations omitted). In Rodriguez, Justice
Martinez relied on the ordinary and common meaning of what constitutes a valid
jury trial in Colorado to hold that the constitution requires twelve jurors, not six,
even though the constitutional provision at issue was silent as to the number. Id. at
709.
So too here. For all intents and purposes, the term “120 calendar days” has
always meant consecutive calendar days – not the accumulated total of 120 days

5

 over the course of any one calendar year with legislators adjourning and then
reconvening non-sequentially as determined by the General Assembly’s leadership.
“When the language is plain, its meaning clear, and no absurdity involved,
constitutional provisions must be declared and enforced as written.” Id. at 696
(quoting In re Interrogatories Relating to the Great Outdoors Colo. Trust Fund,
913 P.2d 533, 538 (Colo. 1996)) (Kourlis, J.) (“[C]ourt’s duty in interpreting a
constitutional amendment is to give effect to the will of the people adopting such
amendment.”).
In contrast, upholding Rule 44(g) – a legislative outlier that departs from the
longstanding and uncontested understanding of the term “calendar days” as
consecutive calendar days – would contravene the plain language of the 120-day
limit as written in 1988 and enforced continually ever since. Rule 44(g) must fail
because it relies on an impermissible rule of construction that “should not be
applied so as to defeat the objectives sought to be accomplished by the provision
under consideration.” Cooper Motors, Inc. v. Bd. of County Comm’rs, 279 P.2d
685, 688 (Colo. 1955) (in construing a constitutional provision affecting tax
valuation of motor vehicles, the Court must “ascertain and give effect to the intent
of the framers thereof and of the people who adopted it”).

6

 As with the number of permissible jurors in Rodriguez, the term “calendar
days” has but one commonly understood meaning: Consecutive days, including
successive business days, weekend days, and legal holidays. As detailed below,
the legislative history and attendant public debate over Senate Concurrent
Resolution No. 1 and Amendment No. 3 plainly reflect a consensus that there
would always be hard start and stop dates to the regular legislative session capped
at 120 successive calendar days per year. This same popular and common-sense
definition of the term “calendar days” pervades this Court’s rulings on a wide
range of other issues.
For instance, in People v. Zhuk, 239 P.3d 437, 438 (Colo. 2010), the District
Attorney for the 18th Judicial District challenged the District Court’s dismissal of
her interlocutory appeal as untimely under Colorado Rule of Criminal Procedure
Rule 37.1. The Court agreed with the DA’s calculation under that rule that the 10day period must exclude intervening Saturdays, Sundays and legal holidays. Id. at
440. Yet in making these calculations, everyone concerned—the DA, state public
defender, and the Court—assumed that the total days to be counted (minus
excluded days) meant consecutive calendar days. Id. at 438. Myriad other
examples abound. See, e.g., Nguyen v. Indus. Claim Appeals Office, 174 P.3d 847,
847–48 (Colo. App. 2007) (“The notice indicated that the deputy's decision would

7

 become final unless claimant filed a written appeal within fifteen calendar days”)
(emphasis added); City of Englewood v. Indus. Claim Appeals Office, 954 P.2d
640, 641 (Colo. App. 1998) (“Claimant testified, however, that he missed 23
consecutive shifts which encompassed 71 calendar days”) (emphasis added);
Andersen v. Indus. Comm’n, 447 P.2d 221, 224 (Colo. 1968) (“Their argument if
directed to the requirement in the statute is that the new job last at least ninety
calendar days from the first day of employment before it can be considered a
better job”) (emphasis added).
Provisions across various Colorado statutes also confirm the plain
understanding of “calendar days” as consecutive calendar days. That definition
pervades Colorado’s election process. See, e.g., § 1-12-117(1), C.R.S.
(2019) (“Nomination petitions . . . shall be filed no later than fifteen calendar days
prior to the date for holding the election”) (emphasis added); § 1-40-118(1), C.R.S.
(2019) (“If the secretary of state fails to issue a statement within thirty calendar
days, the petition shall be deemed sufficient”) (emphasis added). The same
definition applies to Colorado’s workers compensation insurance system. See, e.g.,
§ 8-43-204(7), C.R.S. (2019) (benefits to injured workers “shall be paid to the
claimant or the claimant's attorney within fifteen calendar days after the date the
executed settlement order is received”) (emphasis added); § 8-74-103(1), C.R.S.

8

 (2019) (benefits appeals “must be received by the [administrative hearing officer of
the] division within twenty calendar days after the date of notification of the
decision”) (emphasis added).
In a similar vein, and within the specific context of the regular legislative
session, Joint Rule 23(d), adopted by the General Assembly in 1983, expressly
provides: “The maximum of one hundred twenty calendar days prescribed by
section 7 of article V of the state constitution for regular sessions of the General
Assembly shall be deemed to be one hundred twenty consecutive calendar days.”
Rule 23(d) applied at the time when legislators were deliberating Senate
Concurrent Resolution No. 1, and when Colorado voters approved Amendment
No. 3. Notwithstanding the narrow exception to the constitution purportedly made
by Rule 44(g), Rule 23(d) remains in force today and reflects the continuing shared
understanding of “calendar days” to mean consecutive such days.
The net effect of these and many other statutes and rules, which have never
before been called into serious doubt by the General Assembly, is to validate the
plain meaning of calendar days under section 7 of article V.

9

 II.

THE LEGISLATIVE HISTORY OF SENATE CONCURRENT
RESOLUTION NO. 1, APPROVED OVERWHELMINGLY BY
COLORADO VOTERS AS AMENDMENT NO. 3 IN 1988,
REFLECTS A CONSENSUS AMONG SUPPORTERS AND
OPPONENTS ALIKE THAT THE ANNUAL REGULAR SESSION
SHALL BE LIMITED TO 120 CONSECUTIVE CALENDAR DAYS
The history behind what became section 7 of article V of the state

constitution more than three decades ago is no less clear than the plain language by
which it was decisively enacted into law by popular referendum. An account of
that history attests to that shared understanding of “calendar days” as consecutive
days. That same understanding was repeatedly expressed by the legislative authors
of Senate Concurrent Resolution No. 1, the referred matter that became
Amendment No. 3 in 1988.
Legislative history is especially helpful where, as here, it all points in the
same direction: in support of the plain language of the constitutional provision at
issue. See Griffin v. S.W. Devanney & Co., 775 P.2d 555, 559 (Colo. 1989). In
Griffin, the Court analyzed a state securities statute, stressing the overarching
primacy of deferring to plain language, but acknowledged the value of examining
legislative history for any unclear or ambiguous terms or phrases:
Where the statutory language is clear and unambiguous
there is no need to resort to interpretative rules of statutory
construction; the statute, in that instance, should be applied
as written, since it may be presumed that the General
Assembly meant what it clearly said. If, however, statutory
10

 language is uncertain as to its intended scope, with the result
that the statutory text lends itself to alternative constructions,
then a court may appropriately look to pertinent legislative
history in determining which alternative construction is in
accordance with the objective sought to be achieved by the
legislation.
Id. (internal citations omitted). Section 7 of article V does not permit any
reasonable alternative construction to consecutive calendar days. Yet even if it
did, the legislative history in favor of this definition is unassailable.
The 1988 amendment at issue today has its roots in an earlier referred
measure, Amendment No. 4, approved by Colorado voters in 1982. Prior to
Amendment No. 4’s passage, section 7 of article V of the constitution provided
that “at regular sessions convening in even-numbered years, the general assembly
shall not enact any bills except those raising revenue, those making appropriations,
and those pertaining to subjects designated in writing by the governor during the
first ten days of the session.” See Amendment No. 4, Constitutional Amendment
Proposed by the General Assembly, BLUE BOOK (1982), p. 20. Amendment No.
4 repealed that language and substituted the following:
Regular sessions of the general assembly convening in even-numbered years
shall not exceed one hundred forty calendar days.
Id. According to the Comments section of the 1982 Blue Book analysis of
Amendment No. 4, it had been the practice of the General Assembly from

11

 statehood until the early 1950s to convene regular sessions only every other year,
starting in January in odd-numbered years. Id. In the 1950 general election,
Colorado voters approved the amendment containing the language repealed in
1982 by Amendment No. 4. Id. Between 1951 and 1983, the first regular session
of each biennium was known as the “long session,” during which the General
Assembly could consider any topic. Id. The second regular session of each
biennium was the “short session” because it was limited to revenue-raising
measures, appropriations, and the Governor’s agenda or “call.” Id. The 1982 Blue
Book description of “Arguments For” Amendment No. 4 notes, beginning in
Paragraph 3:
The amendment would place an explicit time limitation (140 calendar
days) on the length of even-numbered year legislative sessions,
assuring continuation of the part-time citizen legislature. The limit
would provide sufficient flexibility to balance the workload between
legislative sessions.
See id. at p. 21. After Amendment No. 4’s passage, the General Assembly in 1983
adopted Rule 23(d), explicitly noting that calendar days were consecutive.1

                                                            

the legislative session following the passage of Amendment No. 4, the
General Assembly adopted House Joint Resolution No. 1014. The resolution
amended Rule No. 23(a) of the Joint Rules of the Senate and House of
Representatives. It imposed a deadline schedule for bills and specified: “The
maximum of one hundred forty calendar days prescribed by section 7 of article V
of the state constitution for regular sessions of the general assembly convening on
1

 During

12

 Six years later, the referred measure known as Senate Concurrent Resolution
No. 1 was placed on the general election ballot as Amendment No. 3. It provided
that “[r]egular sessions of the general assembly shall not exceed one hundred
twenty calendar days.” See Amendment No. 3, Constitutional Amendment
Proposed by the General Assembly, BLUE BOOK (1988), p. 5. Each year’s
annual session was capped at 120 days. The opening paragraph in the “Arguments
For” section of the 1988 Blue Book echoed the “citizen legislature” theme of
Amendment No. 4 six years earlier:
The proposal is necessary to maintain the “citizen legislature”
which has existed since statehood. A legislature composed of
citizens willing to take time from their private lives to serve the
public good has been our basic instrument of representative
government. A variety of professional and occupational
backgrounds, and the social and demographic composition of the
various communities should be reflected in the legislature if it is to
function effectively. A broad range of vocations and occupations
allow a greater diversity of viewpoints to impact the formulation of
state policy. Legislators returning to and living among their
constituents provide better insight for representing districts. A
constitutional limitation on the length of sessions will ensure a
part-time legislature and best maintain the “citizen legislature”
concept.
See id. at p. 6. Importantly, the remainder of the “Arguments For” section of the
Blue Book expanded on the “citizen legislature” concept in two new and distinct
                                                                                                                                                                                                

even-numbered years shall be deemed to be one hundred forty consecutive days.”
Colo. S., H.R. Joint Rules § 23(a) (1984). 
13

 ways. Paragraph 2 emphasized the threat to the citizen legislature posed by
lengthier legislative sessions, resulting in more self-described full-time legislators
at the expense of the diversity sought in Paragraph 1. Id. More specifically to the
Special Interrogatory now before the Court, the third and final paragraph argued
that Amendment No. 3 was needed to “ensure that the limitation cannot be
changed by statute or legislative rule.” Id. Rule 23(d), explicitly defining the 120day limit as consecutive calendar days, had been in force for nearly six years prior
to Amendment No. 3’s passage—reflecting the shared understanding of the voters
who approved that amendment in 1988—and endures to this day.
Opponents of Senate Concurrent Resolution No. 1 likewise understood
calendar days to be consecutive. For example, the “Arguments Against” section of
the 1988 Blue Book provides in Paragraph 2 that Amendment No. 3 “is too
restrictive and inflexible. Establishing the 120-day limitation in the constitution
does not allow the legislature the flexibility to respond if important issues arise that
require legislative action after the 120-day session and could prevent effective
legislative response to the growing needs and demands of the citizens.” Id. The
ensuing paragraph in the “Arguments Against” section also notes that Amendment
No. 3 might give more power to the Governor, who by convening a special session

14

 could “set the agenda for any legislative action after the 120 days expire.” Id. at p.
7.
As voters prepared to go to the polls on November 8, 1988, newspaper
editorials mirrored lawmakers’ understanding that the 120-day limit was just that:
A cap on how long the General Assembly would meet with a defined beginning
and end. Or as the editorial board of the Colorado Springs Gazette put it: “At the
very least, if you believe the adage that no one's life, liberty or property are safe
when the Legislature is in session, then Amendment 3 would keep us safe for twothirds of the year.” Editorial, “Assure Citizens’ Legislature,” Colorado Springs
Gazette (Nov. 5, 1988).
There are also the unequivocal statements of the legislative sponsors of
Senate Concurrent Resolution No. 1, the measure referred to the voters as
Amendment No. 3. The chief bill sponsors were Senator Wayne Allard and
Representative Chris Paulson. Introducing the bill in the state House, Paulson, the
Majority Leader, explained: “It would limit both sessions of the legislature to 120
consecutive calendar days.” (emphasis added). See Audio Transcription of Senate
Concurrent Resolution, House 2nd Reading, at 3, lines 5–7 (Mar. 28, 1988).
The legislative tapes also indicate that the General Assembly discussed
specific dates for convening and adjourning the regular legislative session,

15

 evincing legislators’ intentions to limit regular sessions to 120 consecutive
calendar days.2 See, e.g., Audio Transcription of Senate Concurrent Resolution,
Senate 2nd Reading, at 3, lines 7–9 (Jan. 15, 1988) (“…it will be the first
Wednesday in February; which means that we would get out at the end of
May.…”); id. at 10, lines 18–21 (“It would be coming into session the 15th of
February, we would get out the end of May. One hundred twenty days take us to
the end of May.”); id. at 11, lines 1–9 (“I think it’s a mistake to keep us here after
Memorial Day. If we’re here working into the middle of June, I think that’s going
to be a problem in the future. I totally support the idea of shortening the sessions, I
just think that it’s going to lead to a lot of problems and a lot of frustration.”); id. at
18, lines 18–21 (“I really think we shouldn’t start at a reasonable time to get these
things done and – shut this thing down in the spring and get everybody out of
here.”); id. at 21, lines 1–6 (“The whole purpose of this resolution is to shorten the
session. And if we don’t have the figures, how do we budget? And if we come in
the 8th of – January, we will be finishing here about the 30th of April. And that
will mean we’ll have to go in recess about the 10th of April.”); Audio
Transcription of Senate Concurrent Resolution, House 2nd Reading, at 4, lines 19–
                                                            
2

The official electronic recordings of these deliberations do not identify the
individual legislator speaking at any given time, although this can sometimes be
directly inferred by the specific context in which a given Senator or Representative
makes remarks.
16

 23 (Mar. 28, 1988) (“It seems to me that if we start in March and go for 120 days,
this whole place is going to have to be air conditioned, because we will be meeting
here in the heat of June.”); id. at 21, lines 6–9 (Mar. 28, 1988).
The legislative records demonstrate that legislators considered how the 120
consecutive calendar day schedule might impact the General Assembly’s ability to
conduct its work, recognizing the authority of both the Legislature and the
Governor to call special sessions if and as needed. See, e.g., Audio Transcription
of Senate Concurrent Resolution, Senate 3rd Reading, at 10, lines 10–13 (Jan. 25,
1988) (“What it amounts is, we may indeed reduce a number of days that we’re in
this chamber; but that also opens up the special sessions, it opens up to much more
interim committee meetings.”); Audio Transcription of Senate Concurrent
Resolution, House 2nd Reading, at 23, lines 16–19 (Mar. 28, 1988) (“And finally I
think what will happen is that since we won’t resolve those – those problems and
those issues during the regular session, we’ll be faced almost every year, I suggest,
with special sessions.”).
Finally, lawmakers agreed on the part-time nature of the “citizen legislature”
as reinforced by a 120-day calendar with a known start and stop date. See, e.g.,
Audio Transcription of Senate Concurrent Resolution, Senate 2nd Reading, at 12,
lines 6–9 (Jan. 15, 1988) (“The February thing really bothers me for several

17

 reasons: One, is that in my occupation, I like to get out of here as early as possible
in the spring.”); id. at 21, lines 11–12 (“I am a rancher-farmer, I like to be home in
the spring, too.”); id. at 22, lines 16–23 (“Now, I know there’s farmers and
ranchers of all varieties; some have a lot of employed people who – who therefore
have a (inaudible) some already do a lot of work themselves, and I think that for
those people it would be very difficult for them to choose to serve in the general
assembly if we move this to February 15th.”); Audio Transcription of Senate
Concurrent Resolution, Senate 3rd Reading, at 9, lines 9–10 (Jan. 25, 1988) (“I
know we want to keep the citizen legislature.”); id. at 12, lines 1–4 (Jan. 25, 1988)
(We can have that commitment to work on other systems also to make this really
happen, and Senator [Ray] Powers [the Senate President at the time] will indeed
have a part-time job.”); Audio Transcription of Senate Concurrent Resolution,
House 2nd Reading, at 14, lines 14–17 (Mar. 28, 1988) (“His [Senator Allard’s]
goal is so that we get out of here early so that you can work at another job; because
we all agree, your $17,500 certainly is not an annual salary…”); id. at 20, lines 16–
20 (Mar. 28, 1988) (“If we can go all the way up to March before we start and then
we go 120 days from there, people like I who are trying to have a second job and
be a real citizen-legislature kind of person, they’re going to be in the same boat.”);
id. at 22, lines 23–25 and 23, lines 1–2 (“I know there are important problems,

18

 we’re dealing with people who need to earn a living. I respect that. I need to do
that, too. And I like summers off, and I need to teach in the fall.”); id. at 23, lines
19–22 (“And that will even create more mayhem with those of you who have to
address other careers; because I have to address another career.”).3
In sum, the entire legislative history, with the sole exception of Rule 44(g) –
passed more than 20 years later – consistently supports the plain language of
section 7 of article V as limited to 120 consecutive calendar days.
III.

RULE 44(G) IS UNCONSTITUTIONAL BECAUSE IT PURPORTS
TO AMEND LANGUAGE IN THE COLORADO CONSTITUTION,
YET THE POWER OF AMENDING THE CONSTITUTION
RESIDES SOLELY WITH THE PEOPLE
The power to amend Colorado’s constitution rests solely with the people

through the initiative and referendum process. See COLO. CONST. art. V, § 1(1)
(“the people reserve to themselves the power to propose laws and amendments to
the constitution and to enact or reject the same at the polls independent of the
general assembly and also reserve power at their own option to approve or reject at
the polls any act or item, section, or part of any act of the general assembly.”). The
constitution cannot be amended, altered, or changed by statute, let alone legislative
                                                            

Additionally, legislators discussed how the 120 consecutive calendar day schedule
would impact the scheduling of bills. See, e.g., Audio Transcription of Senate
Concurrent Resolution, House Committee on State Affairs, at 2, lines 16–20 (Mar.
1, 1988) (“You can see that those deadlines really are not that onerous, even for 90
days. You see the deadlines for introduction – for the first House final passage.”).   

3

19

 rule. See Reale v. Bd. of Real Estate Appraisers, 880 P.2d 1205, 1209 n. 6 (Colo.
1994) (“Because the office of county coroner is created by the Constitution and
qualifications for holding office are specified in the Constitution, [the General
Assembly] cannot add to those qualifications by adopting experience and training
requirements for that office.”); Yenter v. Baker, 248 P.2d 311, 316 (Colo. 1952)
(“Where the Constitution declares the qualifications for office, it is not within the
power of the Legislature to change or add to them, unless the Constitution gives that
power.") (internal citations and quotations omitted). Interpretations of the
constitution by this Court are similarly beyond the General Assembly’s power to
change according to longstanding case law. See, e.g., People ex rel. Juhan v.
District Court, 439 P.2d 741, 745 (Colo. 1968).4
Adopted in 2009, Rule 44(g) upends this entire constitutional regime.
Approved more than two decades after Amendment No. 3’s passage, Rule 44(g)

                                                            

The General Assembly’s legislative powers to amend the Constitution are further
narrowed by Colorado’s single-subject rule, whereby no amendment to the
Colorado constitution may contain more than one subject and the single subject of
the amendment must be clear from the title. See COLO. CONST. art. XIX, § 2(3)
(“No measure proposing an amendment or amendments to this constitution shall be
submitted by the general assembly to the registered electors of the state containing
more than one subject, which shall be clearly expressed in its title; but if any
subject shall be embraced in any measure which shall not be expressed in the title,
such measure shall be void only as to so much thereof as shall not be so
expressed.”).
4

20

 purports to amend clear constitutional language, notwithstanding the will of
Colorado voters, by providing:
Notwithstanding the provisions of Joint Rule 23(d) of the Joint
Rules of the Senate and the House of Representatives regarding
counting legislative days of a regular session as consecutive
days, the maximum of one hundred twenty calendar days
prescribed by section 7 of Article V of the State Constitution
shall be counted as one hundred twenty separate working
calendar days if the Governor has declared a state of disaster
emergency.
Rule 44(g) supposedly allows, in the face of a declared disaster emergency,
an alteration in the language of the constitution or, alternatively, in how section 7
of article V must be interpreted. Neither machination is constitutionally
permissible, emergency declaration or not. This Court and the United States
Supreme Court have both repeatedly warned that constitutional rights, which reside
with the people rather than their government, are not to be degraded or jettisoned
in the face of an emergency. See, e.g., Wilson v. New, 243 U.S. 332, 372 (1917)
(Day, J., dissenting) (“Constitutional rights, if they are to be available in time of
greatest need, cannot give way to an emergency, however immediate, or justify the
sacrifice of private rights secured by the Constitution.”); Oceanic Steam
Navigation Co. v. Stranahan, 214 U.S. 320, 339–40 (1909) (“If the proposition
implies that the right of Congress to enact legislation is to be determined, not by

21

 the grant of power made by the Constitution, but by considering the particular
emergency which has caused Congress to exert a specified power, then the
proposition is obviously without foundation.”); Walker v. Bedford, 26 P.2d 1051,
1054 (Colo. 1933) (“We pronounce as the most certain of law that there has never
been, and can never be, an emergency confronting the state that will warrant the
servants of the Constitution waiving so much as a word of its provisions.”).5
Walker is particularly apropos. The petitioner, an aggrieved automobile
owner, challenged the General Assembly’s constitutional authority to impose
certain new state emergency taxes for what he contended were county rather than
state revenue-generating purposes. Walker, 26 P.2d at 1052–54. The General
Assembly took this extraordinary step during a special session to help speed
disaster relief to economically hard-hit counties during the depths of the Great
Depression in 1933-34. Id. at 1055 (Butler, J., dissenting). The disaster
declaration notwithstanding, the Court agreed with the taxpayer and invalidated the
                                                            
5

But see Korematsu v. United States, 323 U.S. 214, 223–24 (1944) (affirming
conviction of U.S. citizen of Japanese descent by a Federal district court for
remaining in declared "Military Area," of California contrary to Civilian Exclusion
Order No. 34 of the Commanding General of the Western Command, U.S. Army,
which directed that, after May 9, 1942, all persons of Japanese ancestry should be
excluded from that area). Korematsu was controversial even at the time, yet the
Court did not have an opportunity to overrule it for the next 74 years. See Trump
v. Hawaii, Slip Op. No. 17-965, p. 38 (June 26, 2018) (upholding Presidential
Proclamation No. 9645, imposing travel restrictions on foreign nationals seeking
entry to the United States).
22

 taxes: In so holding, the Court analyzed section 7 of article X of the constitution,
which provided: “The general assembly shall not impose taxes for the purposes of
any county, city, town or other municipal corporation.” Id. at 1052–54. Despite
the emergency, the Court insisted that the constitution’s plain language must
prevail over the emergency statutory relief measures enacted by the General
Assembly. Id. at 1053–54. Unlike in Walker, however, the Constitution already
provides viable alternatives to the unconstitutional Rule 44(g) to address the most
recent declared emergency.
IV.

THE CONSTITUTION ALREADY PROVIDES ALTERNATIVE
MEANS FOR ENSURING LEGISLATIVE ACTION DURING A
DECLARED DISASTER EMERGENCY, INCLUDING THE
AUTHORITY OF BOTH THE GOVERNOR AND THE GENERAL
ASSEMBLY TO CONVENE IN SPECIAL SESSION AFTER THE
120-DAY REGULAR SESSION ADJOURNS SINE DIE ON MAY 6,
2020
When the Legislature reconvenes on March 30, 2020, there will be 38

calendar days remaining in the regular session.6 After this year’s regular session
adjourns sine die on May 6th, any additional legislation that might be passed by the
General Assembly in reliance on Rule 44(g) should, as with the unconstitutional
                                                            
6

On March 14, 2020, the General Assembly passed House Joint Resolution 201007, "Concerning a Temporary Adjournment of the Second Regular Session of
the Seventy-Second General Assembly to a Day Certain." According to that
resolution, the Legislature has temporarily adjourned from that date until March
30, 2020. H.R.J. Res. 20-1007, 72nd Leg., 2d Sess. (Colo. 2020).
23

 taxes challenged in Walker, be considered null and void. Fortunately, the
constitution already allows both the Governor and the General Assembly to
reconvene in special session. This has been done many times before, including
during the Great Depression as in Walker, and is the constitutional way to proceed
given the current declared public health emergency.
More specifically, the Governor may call a special legislative session under
section 9 of article IV of the state constitution:
The governor may, on extraordinary occasions convene the general
assembly, by proclamation, stating therein the purpose for which it is
to assemble; but at such special session no business shall be transacted
other than that specially named in the proclamation. He may by
proclamation, convene the senate in extraordinary session for the
transaction of executive business.
COLO. CONST. art. IV, § 9. The General Assembly, by a two-thirds vote by both
houses, may also call itself into special session as provided in section 7 of article V
of the state constitution, which states in pertinent part:
The general assembly shall meet at other times when convened in
special session by the governor pursuant to section 9 of article IV of
this constitution or by written request by two-thirds of the members of
each house to the presiding officer of each house to consider only
those subjects specified in such request.
COLO. CONST. art. V, § 7. The concept of convening one or more special sessions
is time-tested and familiar to Coloradans. Just since the September 11, 2001
24

 terrorist attacks against the United States, the General Assembly has met in special
session on at least five separate occasions:
1. 2017 First Special Session, October 2–4, 2017, Governor Hickenlooper
called the special session to allow the General Assembly to restore authority
to special districts to tax recreational marijuana. See “Session Laws from
the 2017 Extraordinary Session,” Office of Legislative Legal Services, at
https://leg.colorado.gov/sessionlaws?field_sessions_target_id=27016&sort_
bef_combine=field_page_value%20ASC.
2. 2012 First Special Session, May 14–16, 2012, Governor Hickenlooper called
the special session to allow the General Assembly to act on approximately
30 bills, including civil unions. See “Prior Legislative Information” at
http://www.leg.state.co.us/clics/cslFrontPages.nsf/PrevSessionInfo?OpenFor
m.
3. 2006 First Special Session, July 6–10, 2006, Governor Owens called the
special session to allow the General Assembly to address immigration. See
“Prior Legislative Information” at http://www.leg.state.co.us/clics/
cslFrontPages.nsf/PrevSessionInfo?OpenForm
4. 2002 First Special Session, July 8–11, 2002, Governor Owens called the
special session to allow the General Assembly to address several issues,
including capital punishment. The General Assembly passed legislation
only in response to wildfires and drought. See “Prior Legislative
Information” at
http://www.leg.state.co.us/clics/cslFrontPages.nsf/PrevSessionInfo?OpenFor
m; see also “Session Laws 2002,” Office of Legislative Legal Services, at
https://leg.colorado.gov/agencies/office-legislative-legal-services/sessionlaws-2002.

25

 5. 2001 Second Special Session, September 20 – October 9, 2001, Governor
Owens called the Second Special Session to allow the General Assembly to
address 14 matters including – representation in the U.S. Congress; master
plans; sales and use tax transfers to the Highway Users Tax Fund; driving
under the influence penalties; and use of Tobacco Program Fund monies to
implement the Breast and Cervical Cancer Act. See Executive Order
D01101: Call for the Second Extraordinary Session of the Sixty-Third
General Assembly, Sept. 10, 2001 at https://www.colorado.gov/pacific/sites
/default/files/d01101.pdf.
As the framers of the constitution envisioned, the special session provides an
effective way to address matters of public interest and concern outside of the
regular session.7 There is no reason why the Governor and/or the General
Assembly could not convene one or more special sessions after May 6th. Indeed,
special sessions have been declared for matters less urgent than the current
declared public health disaster emergency, yet also – as in Walker – for farreaching crises of the most pressing public importance. Circumstances may yet
prove that working through, rather than against, the dictates of our constitution is

                                                            
7

Ironically, it is at least questionable whether the General Assembly has
effectively adjourned. On information and belief, its members are apparently still
accumulating per-diem payments, which by statute are provided to legislators for
each “legislative day” they are in session. See § 2-2-317(1)(a), C.R.S. (2019).
This may indicate that the General Assembly is still operating as if in regular
session, based on how “legislative day” is defined. See § 2-2-317(3), C.R.S. (2019)
(“‘legislative day’ means any day during the legislative session, including legal
holidays, primary election days, and Saturdays and Sundays.”).  
26

 the most appropriate way to preserve its protections over individual life, liberty and
property.
CONCLUSION
For the foregoing reasons, the elected Senators and Representatives of the
Colorado General Assembly listed below respectfully ask this Court to invalidate
Joint Rule 44(g) by affirming the plain language of section 7 of article 5 of the
Colorado constitution, which reflects the will of the voters who enacted it, as well
as the succeeding generation of Coloradans who have consistently interpreted it to
limit the regular session of the General Assembly to 120 consecutive calendar
days.
Respectfully submitted this 24th day of March, 2020.
GREENBERG TRAURIG, LLP
s/ Troy A. Eid
__________
Troy A. Eid, #21164
Josiah E. Beamish, #52445
ATTORNEYS FOR
SENATOR ROBERT S. GARDNER
SENATOR JOHN COOKE
SENATOR DON CORAM
SENATOR LARRY CROWDER
SENATOR OWEN HILL
SENATOR DENNIS HISEY
SENATOR CHRIS HOLBERT
SENATOR PAUL LUNDEEN
SENATOR VICKI MARBLE
27

 SENATOR KEVIN PRIOLA
SENATOR BOB RANKIN
SENATOR RAY SCOTT
SENATOR JIM SMALLWOOD
SENATOR JERRY SONNENBERG
SENATOR JACK TATE
SENATOR ROB WOODWARD
REPRESENTATIVE MARK BAISLEY
REPRESENTATIVE ROD BOCKENFELD
REPRESENTATIVE MARC CATLIN
REPRESENTATIVE PERRY BUCK
REPRESENTATIVE TERRI CARVER
REPRESENTATIVE RICHARD CHAMPION
REPRESENTATIVE TIMOTHY GEITNER
REPRESENTATIVE RICHARD HOLTORF
REPRESENTATIVE STEVE HUMPHREY
REPRESENTATIVE LOIS LANDGRAF
REPRESENTATIVE COLIN LARSON
REPRESENTATIVE LARRY LISTON
REPRESENTATIVE HUGH MCKEAN
REPRESENTATIVE PATRICK NEVILLE
REPRESENTATIVE ROD PELTON
REPRESENTATIVE KIM RANSOM
REPRESENTATIVE JANICE RICH
REPRESENTATIVE LORI SAINE
REPRESENTATIVE SHANE SANDRIDGE
REPRESENTATIVE MATT SOPER
REPRESENTATIVE KEVIN VAN WINKLE
REPRESENTATIVE PERRY WILL
REPRESENTATIVE DAVE WILLIAMS
REPRESENTATIVE JIM WILSON

28

 CERTIFICATE OF SERVICE
I hereby certify that on this 24th day of March, 2020, a true and correct copy
of the foregoing BRIEF OF 40 INDIVIDUAL MEMBERS OF THE
COLORADO GENERAL ASSEMBLY was served on the below-listed counsel
of record via Colorado Courts E-Filing e-service or USPS as noted:
Jacqueline Cooper Melmed – via USPS
Colorado Governor’s Office
200 E. Colfax Ave
Denver, CO 80203
Attorney for Respondent Governor Jared Polis
Jason Andrew Gelender – via e-service
Attorney for Interrogatory – Party Suppressed
Hon. Philip Jacob Weiser – via USPS
1300 Broadway
Denver, CO 80203
Attorney for Respondent Philip Weiser
s/ M. Hope Watkins
M. Hope Watkins
(Original on file at offices of
Greenberg Traurig, LLP, pursuant to
C.R.C.P. 121, § 1-26)

29