SUPREME COURT
STATE OF COLORADO

DATE FILED: March 24, 2020 4:13 PM
FILING ID: AE1FB09C274D5
CASE NUMBER: 2020SA100

2 East 14th Avenue
Denver, CO 80203
Original Proceeding Pursuant to Article VI, Section
3 of the Constitution of the State of Colorado
In Re: Interrogatory on House Joint Resolution 201006 Submitted by the Colorado General Assembly.
PHILIP J. WEISER, Attorney General
Natalie Hanlon Leh, Chief Deputy Att’y Gen.,
18824*
Eric R. Olson, Solicitor Gen., 36414*
Kurtis T. Morrison, Deputy Att’y Gen., 45760*
Terry Gill, Deputy Att’y Gen., 22398*
Russell D. Johnson, Sr. Asst. Att’y Gen., 48482*
COURT USE ONLY
Noah C. Patterson, Sr. Asst. Att’y Gen., 42339*
Case No. 2020SA00100
Jefferey D. Riester, Asst. Att’y Gen., 46520*
Elisabeth Mabus, Att’y Gen. Fellow, 53868*
Adam T. Rice, Att’y Gen. Fellow, 53963*
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 10th Floor
Denver, CO 80203
Telephone: 720-508-6351
E-Mail: natalie.hanlonleh@coag.gov;
eric.olson@coag.gov; kurtis.morrison@coag.gov;
terry.gill@coag.gov; russell.johnson@coag.gov;
noah.patterson@coag.gov; jefferey.riester@coag.gov;
elisabeth.mabus@coag.gov; adam.rice@coag.gov
*Counsel of Record
COMBINED BRIEF OF THE GOVERNOR AND THE ATTORNEY
GENERAL OF THE STATE OF COLORADO

 CERTIFICATE OF COMPLIANCE
I hereby certify that this Combined Brief of the Governor and the
Attorney General of the State of Colorado complies with all
requirements of C.A.R. 28 and C.A.R. 32, as reasonably applicable to a
brief submitted in a matter arising under article VI, section 3, including
all formatting requirements set forth in these rules. Specifically, the
undersigned certifies that:
The brief complies with the word limit set in the Court’s
March 16, 2020 Order. It contains 7,466 words (of the 9,500 permitted
under the March 16, 2020 order).
I acknowledge that my brief may be stricken if it fails to
comply with any of the requirements in C.A.R. 28 and C.A.R. 32.

s/ Russell D. Johnson
Signature of attorney or party

 TABLE OF CONTENTS
PAGE

INTERROGATORY PRESENTED................................................................ 1
STATEMENT OF THE CASE AND FACTS ................................................. 1
I. Colorado voters amended the state constitution to preserve the
General Assembly as a part-time, citizen legislature by limiting
the number of days it could meet in regular session. ........................... 3
II. The General Assembly adopted a rule that limits the length of a
regular session with one narrow exception for public health
disasters that make it dangerous for the General Assembly to
meet. ....................................................................................................... 6
III. Colorado faces a public health emergency that makes participation in
the very public and interactive legislative process dangerous. ............ 9
APPLICABLE LEGAL STANDARDS ......................................................... 13
SUMMARY OF THE ARGUMENT ............................................................. 17
ARGUMENT ................................................................................................ 19
I. While Section 7 evinces an intent to limit the legislature’s term,
it is ambiguous because its plain language does not address how
to count the 120 calendar days permitted in a regular session. ......... 19
II. The General Assembly’s interpretation of Section 7 is consistent
with the voters’ intent because it maintains the part-time,
citizen legislature voters intended by adding the 120-day limit
to the constitution. ............................................................................... 22
A. Voters adopted the 120-day limitation to maintain the
General Assembly as a part-time, citizen legislature while
still giving it sufficient time to legislate. ......................................... 23
B. The General Assembly’s rules promote a part-time, citizen
legislature by providing certainty in normal times and
i

 TABLE OF CONTENTS
PAGE
addressing the unique challenges a public health crisis
presents in a way that encourages Coloradans from all walks
of life to serve in legislative office. ................................................... 25
C. Nothing in the information provided to voters demonstrates
that the General Assembly’s rules are unconstitutional
beyond a reasonable doubt............................................................... 29
III. Holding the General Assembly’s interpretation
unconstitutional threatens to cripple government. ............................ 38
CONCLUSION............................................................................................. 42

ii

 TABLE OF AUTHORITIES
PAGE
CASES
Barber v. Ritter, 196 P.3d 238 (Colo. 2008) ................................................. 38
City of Greenwood Vill. v. Petr’s for Proposed City of Centennial, 3
P.3d 427 (Colo. 2000) ......................................................................... 15, 16
Colo. Gen. Assem. v. Lamm, 704 P.2d 1371 (Colo. 1985) ............................ 31
Davidson v. Sandstrom, 83 P.3d 648 (Colo. 2004) ...................................... 14
Denver & R. G. R. Co. v. Moss, 115 P. 696 (Colo. 1911) .............................. 32
Dwyer v. State, 357 P.3d 185 (Colo. 2015) ................................................... 38
Empire Savings, Bldg. & Loan Ass’n v. Otero Savings & Loan Ass’n,
640 P.2d 1151 (Colo. 1982) ...................................................................... 32
Gessler v. Smith, 419 P.3d 964 (Colo. 2018) .......................................... 13, 14
Grossman v. Dean, 80 P.3d 952 (Colo. App. 2003) ...................................... 15
In re Great Outdoors Colo. Tr. Fund, 913 P.2d 533 (Colo. 1996).... 17, 23, 29
In re Opinions of the Justices, 113 So. 621 (Ala. 1927) ............................... 21
In Re S. Res. No. 2 Concerning Constitutionality of House Bill No. 6,
31 P.2d 325 (Colo. 1933) ........................................................ 14, 15, 23, 25
In re Submission of Interrogatories on House Bill 99-1325, 979 P.2d
549 (Colo. 1999) ....................................................................................... 16
People v. Ford, 773 P.2d 1059 (Colo. 1989) ................................................. 15
People v. Roddy, Case No. 2017CA2267 (Order Mar. 16, 2020) ................. 11
White v. Hinton, 30 P. 953 (Wyo. 1892) ................................................. 19, 20
Zaner v. City of Brighton, 917 P.2d 280 (Colo. 1996) ...................... 13, 14, 36
CONSTITUTIONS
COLO. CONST. art. IV, § 20 ........................................................................... 40
iii

 TABLE OF AUTHORITIES
PAGE
COLO. CONST. art. V, § 7 ....................................................................... passim
COLO. CONST. art. V, § 12 ......................................................................... 6, 15
COLO. CONST. art. V, § 22 ............................................................................. 33
COLO. CONST. art. V, § 14 ............................................................................... 8
N.D. CONST. art. IV, § 7 ............................................................................... 21
OKLA. CONST. art. V, § 26 ............................................................................. 22
WASH. CONST. art. II, § 12............................................................................ 21
STATUTES
§ 2-4-108, C.R.S. ........................................................................................... 20
§ 2-4-205, C.R.S. ........................................................................................... 20
Administrative Rule Review, 2019 Colo. Sess. Laws 1896 ......................... 39
RULES
COLO. LEGIS. RULES, JOINT RULES OF THE SEN. & H.R., Rule 23 (Dec.
2019) ................................................................................................ passim
COLO. LEGIS. RULES, JOINT RULES OF THE SEN. & H.R., Rule 44 (Dec.
2019) ................................................................................................ passim
ORDERS
Exec. Order No. D 2020 003, “Declaring a Disaster Emergency due to
the Presence of Coronavirus Disease 2019 in Colorado” (Mar. 11,
2020) (Appendix C) .................................................................................... 9
Exec. Order No. D 2020 007, “Ordering Suspension of Normal InPerson Instruction at All Public and Private Elementary and
Secondary Schools in the State of Colorado Due to the Presence of
COVID-19” (Mar. 18, 2020) (Appendix D) ................................................ 9

iv

 TABLE OF AUTHORITIES
PAGE
Exec. Order No. D 2020 004, Ordering Closure of Downhill Ski
Resorts due to the Presence of COVID-19 in the State of Colorado”
(Mar. 14, 2020) (Appendix E) .................................................................... 9
Am. Pub. Health Order 20-22, “Closing Bars, Restaurants, Theaters,
Gymnasiums, Casinos, Nonessential Personal Services Facilities,
and Horse Track and Off-Track Betting Facilities Statewide,”
COLO. DEP’T OF PUB. HEALTH & ENV’T (Mar. 16, 2020, amend. Mar.
18, 2020) (Appendix F) ............................................................................ 10
Admin. Order 2020-05 (21st Jud. Dist. Mar. 18, 2020) (Appendix G) ........ 10
Admin. Order 2020-01 (2d Jud. Dist. Mar. 16, 2020) (Appendix H)........... 11
Pub. Health Order 20-23, “Implementing Social Distancing
Measures,” COLO. DEP’T OF PUB. HEALTH & ENV’T (Mar. 18, 2020)
(Appendix I) ............................................................................................. 11
Exec. Order No. D 2012-010, “Call for the First Extraordinary
Session of the Sixty-Eighth General Assembly,” (May 10, 2012)
(Appendix J) ...................................................................................... 33, 35
OTHER LEGISLATIVE MATERIALS
An Analysis of 1982 Ballot Proposals, LEGIS. COUNCIL OF THE COLO.
GEN. ASSEM. (Aug. 19, 1982) (excerpts in Appendix A) ............ 3, 4, 23, 31
An Analysis of 1988 Ballot Proposals,” LEGIS. COUNCIL OF THE COLO.
GEN. ASSEM. (Aug. 16, 1988) (excerpts in Appendix B) .................. passim
H. Journal, 68th Gen. Assem., 1st Extraordinary Sess. (Colo. 2012) ........ 35
H.B. 12S-1005, 68th Gen. Assem., 1st Extraordinary Sess. (Colo.
2012) ........................................................................................................ 34
H.R.J. Res. 2020-1006, 72d Gen. Assem., 2d Reg. Sess. (Colo. 2020)......... 12
H.R.J. Res. 2020-1007, 72d Gen. Assem., 2d Reg. Sess. (Colo. 2020)......... 12
H.R.J. Res. No. 1003, 57th Gen. Assem., 1st Reg. Sess. (Colo. 1989)........... 6
v

 TABLE OF AUTHORITIES
PAGE
H.R.J. Res. No. 1014, 54th Gen. Assem., 1st Reg. Sess. (Colo. 1983)........... 6
Hearing on H.B. 12S-1005 Before the H. Comm. on State, Veterans,
and Military Affairs, 68th Gen. Assem., 1st Extraordinary Sess.
(Colo. May 14, 2012) ................................................................................ 34
Hearing on H.B. 12S-1005 Before the S. Comm. on State, Veterans,
and Military Affairs, 68th Gen. Assem., 1st Extraordinary Sess.
(Colo. May 15, 2012) ................................................................................ 34
Hearing on S.B. 12-117 Before the S. Comm. on State, Veterans, and
Military Affairs, 68th Gen. Assem., 2d Reg. Sess. (Colo. Feb. 27,
2012) ........................................................................................................ 34
Introduction and Consideration of S.J.R. 09-004, 67th Gen. Assem.,
1st Reg. Sess. (Colo. H.R. Jan. 9, 2009) .................................................. 16
S. Con. Res. No. 1, 53rd Gen. Assem., 2d Reg. Sess. (Colo. 1982) ............ 3, 4
S. Con. Res. No. 1, 56th Gen. Assem., 2d Reg. Sess. (Colo. 1988) ................ 4
S. Journal, 67th Gen. Assem., 1st Reg. Sess. (Colo. 2009) ......................... 16
S.B. 12-117, 68th Gen. Assem., 2d Reg. Sess. (Colo. 2012)......................... 34
S.J. Res. 2009-004, 67th Gen. Assem., 1st Reg. Sess. (Colo. 2009) ........ 6, 16
OTHER AUTHORITIES
Jesse Paul, Colorado lawmaker tests positive for coronavirus, THE
COLO. SUN (Mar. 23, 2020) ...................................................................... 12
Norman Singer & Shambie Singer, 1 SUTHERLAND STATUTES &
STATUTORY CONSTRUCTION § 6:7 (7th ed. Oct. 2019) .............................. 21
State Capitol Closed to Public Indefinitely,” COLO. STATE CAPITOL
(Mar. 18, 2020) ........................................................................................ 10

vi

 INTERROGATORY PRESENTED
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?
STATEMENT OF THE CASE AND FACTS
In the 1980s, Colorado voters acted to preserve their part-time,
citizen legislature by amending the state constitution to limit a regular
legislative session to 120 “calendar days.” The 120-day provision does
not state whether the days must be counted consecutively. The
provision also does not suggest that voters intended the General
1

 Assembly be deprived of the full 120 calendar days in which it may
legislate when circumstances beyond its control prevent it from meeting
during its regular session.
The General Assembly adopted rules to clarify the constitutional
language. Those rules provide that the Assembly will count days
consecutively from the start of the session to the 120th day with one
exception: if a public health disaster outside of the General Assembly’s
control that causes widespread infections—such as COVID-19—
disrupts the regular session, then the General Assembly only counts
“working calendar days” during that disaster.
This narrow exception—triggered not at the General Assembly’s
discretion but upon the Governor’s declaration of a qualifying disaster
emergency—is consistent with the voters’ intent that the General
Assembly be a part-time, citizen legislature and provides flexibility to
the General Assembly to fulfill its obligations responsibly while the
State is facing a public health crisis.

2

 This Court should hold that for the purpose of operating during a
declared public health disaster emergency, the General Assembly
reasonably gave meaning to section 7 of article V of the state
constitution by allowing it to count only calendar days when at least one
chamber of the General Assembly is in session against the 120calendar-day limit.
I.

Colorado voters amended the state constitution
to preserve the General Assembly as a part-time,
citizen legislature by limiting the number of days
it could meet in regular session.

Prior to 1982, the General Assembly’s operations varied by year.
In odd years, the Assembly held a general session where it set the
agenda. In even years, the Assembly held a more limited session where
the governor determined the agenda. See “An Analysis of 1982 Ballot
Proposals,” LEGIS. COUNCIL OF THE COLO. GEN. ASSEM. 20 (Aug. 19,
1982) (“1982 Blue Book”) (relevant excerpts attached as Appendix A).
In 1982, the Assembly referred a measure to voters to remove the
governor’s authority to set the even-year agenda. S. Con. Res. No. 1,
53rd Gen. Assem., 2d Reg. Sess. (Colo. 1982). The Assembly included a
3

 limit of 140 “calendar days” for even-year sessions in the measure. Id.
§ 1. As explained to voters, the 140-day limit was intended to maintain
the Assembly as a “part-time, citizen legislature.” 1982 Blue Book at 21.
Voters approved the change and amended the constitution.
The 1982 amendment, however, created a situation where evenyear sessions were limited to 140 days, but odd-year sessions had no
limit. The Assembly moved to address this issue in 1988 when it
referred a new measure to voters, asking that the voters limit all
regular sessions to 120 “calendar days.” S. Con. Res. No. 1, 56th Gen.
Assem., 2d Reg. Sess. (Colo. 1988).
As explained to voters, “The proposal [was] necessary to maintain
the ‘citizen legislature’ which has existed since statehood.” “An Analysis
of 1988 Ballot Proposals,” LEGIS. COUNCIL OF THE COLO. GEN. ASSEM. 6
(Aug. 16, 1988) (“1988 Blue Book”) (relevant excerpts attached as
Appendix B). The arguments for the proposal extolled the virtues of
having a diverse set of legislators who represented “[a] variety of
professional and occupational backgrounds, and the social and
4

 demographic composition of the various communities” in Colorado. Id.
The 1988 Blue Book also informed voters that the significant time
commitment of participating in the General Assembly led some
legislators to leave office. Id.
The 120-calendar-day limit was intended to require the General
Assembly to act efficiently without harming its ability to legislate
effectively. As the 1988 Blue Book noted, “State legislatures in other
states of comparable or greater population are in session fewer days per
year than Colorado and appear to meet their responsibilities.” Id. The
expectation was that “critical or important issues” could be dealt with
during the 120 days and emergencies arising after a regular session
ended could be dealt with through a special session. Id.
Voters again agreed, favoring a part-time, citizen legislature and
granting the legislature 120 calendar days in which to legislate. As a
result, the state constitution now reads, “Regular sessions of the
general assembly shall not exceed one hundred twenty calendar days.”
COLO. CONST. art. V, § 7 (“Section 7”).
5

 II.

The General Assembly adopted a rule that limits
the length of a regular session with one narrow
exception for public health disasters that make it
dangerous for the General Assembly to meet.

The Colorado Constitution vests each house of the General
Assembly with the “power to determine the rules of its proceedings.”
COLO. CONST. art. V, § 12. Exercising that authority, the General
Assembly adopted Joint Rules 23(d) and 44. H.R.J. Res. No. 1014, 54th
Gen. Assem., 1st Reg. Sess. (Colo. 1983) (adopting Joint Rule 23(d));
H.R.J. Res. No. 1003, 57th Gen. Assem., 1st Reg. Sess. (Colo. 1989)
(amending Joint Rule 23(d)); S.J. Res. 2009-004, 67th Gen. Assem., 1st
Reg. Sess. (Colo. 2009) (adopting Joint Rule 44). Taken together, these
rules clarify the application of the constitution’s 120-day rule.
Joint Rule 23(d) is the general rule. It provides, “The maximum of
one hundred twenty calendar days … shall be deemed to be one
hundred twenty consecutive calendar days.” COLO. LEGIS. RULES, JOINT

6

 RULES OF THE SEN. & H.R., Rule 23(d) (Dec. 2019) (“Joint Rule 23(d)”).1
Joint Rule 23(d) provides one additional detail not included in Section 7:
days count toward the 120 calendar-day limit consecutively.
Joint Rule 44 allows the General Assembly to deviate from Joint
Rule 23(d)’s consecutive-counting rule only when three conditions—all
of which are beyond the General Assembly’s control—are met:
1. The governor “declares that the state of Colorado is in a state of
disaster emergency”;
2. The emergency is “caused by a public health emergency infecting
or exposing a great number of people to disease, agents, toxins, or
such other threats”; and
3. The governor has activated the Colorado emergency operations
plan.

A complete copy of the Joint Rules is available at
https://www.leg.state.co.us/CLICS/cslFrontPages.nsf/FileAttachVw/201
9Rules/$File/2019CombinedLegislativeRules.pdf (last visited Mar. 24,
2020). Joint Rules 23 and 44 were also provided to the Court with the
General Assembly’s Interrogatory.
1

7

 COLO. LEGIS. RULES, JOINT RULES OF THE SEN. & H.R., Rule 44(a) (Dec.
2019) (stating when Joint Rule 44 applies). If all three conditions are
satisfied, then the General Assembly counts only “working calendar
days” against the 120-day limit instead of consecutive calendar days.
COLO. LEGIS. RULES, JOINT RULES OF THE SEN. & H.R., Rule 44(g) (Dec.
2019) (“Joint Rule 44(g)”). Once the emergency is over, Joint Rule 23(d)
automatically applies again. Id.
Joint Rule 44 has never been triggered before now, and it is easy
to see why. Joint Rule 44’s conditions focus on the rare situation where
it would be dangerous for the General Assembly to meet and conduct
legislative business in session. The danger of holding daily sessions of
the General Assembly during an ongoing public health crisis caused by
a disease infecting large numbers of people is readily apparent,
particularly since, by law, the public must have access to those sessions.
COLO. CONST. art. V, § 14.

8

 III. Colorado faces a public health emergency that
makes participation in the very public and
interactive legislative process dangerous.
COVID-19 represents a public health crisis on a scale unseen
since the 2009 enactment of Joint Rule 44. In response to this crisis, the
Governor issued an executive order declaring a disaster emergency and
activating the state emergency operations plan. Exec. Order No. D 2020
003, “Declaring a Disaster Emergency due to the Presence of
Coronavirus Disease 2019 in Colorado” (Mar. 11, 2020) (Appendix C). In
subsequent orders, the Governor required a wide variety of
organizations and businesses—from schools to ski resorts—to close for
prolonged periods of time to protect public health. Exec. Order No.
D 2020 007, “Ordering Suspension of Normal In-Person Instruction at
All Public and Private Elementary and Secondary Schools in the State
of Colorado Due to the Presence of COVID-19” (Mar. 18, 2020)
(Appendix D); Exec. Order No. D 2020 004, Ordering Closure of
Downhill Ski Resorts due to the Presence of COVID-19 in the State of
Colorado” (Mar. 14, 2020) (Appendix E).
9

 The Colorado Department of Public Health and Environment
similarly issued a sweeping public health order shutting down a wide
variety of facilities. Am. Pub. Health Order 20-22, “Closing Bars,
Restaurants, Theaters, Gymnasiums, Casinos, Nonessential Personal
Services Facilities, and Horse Track and Off-Track Betting Facilities
Statewide,” COLO. DEP’T OF PUB. HEALTH & ENV’T (Mar. 16, 2020,
amend. Mar. 18, 2020) (Appendix F). Even the Colorado State Capitol
has been ordered closed to the general public indefinitely. See “State
Capitol Closed to Public Indefinitely,” COLO. STATE CAPITOL (Mar. 18,
2020).2 Normal daily activities are significantly disrupted.
The disruption has also been felt by the courts. Chief judges
throughout Colorado have issued orders modifying their courts’ normal
procedures. See, e.g., Admin. Order 2020-05 (21st Jud. Dist. Mar. 18,
2020) (Appendix G). Jury trials have been delayed; oral arguments have
been vacated; and hearings are being converted to teleconferences when

Available at https://www.colorado.gov/pacific/capitol/news/statecapitol-closed-public-indefinitely (last visited Mar. 21, 2020).
2

10

 possible. See, e.g., Order of Court, People v. Roddy, Case No.
2017CA2267 (Mar. 16, 2020) (“The Court of Appeals is vacating all oral
arguments scheduled between March 17, 2020 and April 30, 2020.”);
Admin. Order 2020-01 (2d Jud. Dist. Mar. 16, 2020) at 3, 5 (converting
civil division hearings to teleconferences and cancelling jury calls with
return dates between March 17, 2020 and May 15, 2020) (Appendix H).
The General Assembly has also been impacted. The State barred
public gatherings of more than ten people to control the spread of
COVID-19. Pub. Health Order 20-23, “Implementing Social Distancing
Measures,” COLO. DEP’T OF PUB. HEALTH & ENV’T (Mar. 18, 2020)
(Appendix I). But such gatherings in which citizens express their
opinions regarding legislation are a pillar of the democratic process. The
legislators and their staff also represent a substantial number of
people—people who gather in a large group while in session and then
disperse throughout the state, potentially accelerating the spread of
COVID-19 in Colorado. Thus, while the order exempts the General
Assembly, the danger remains. Id. at 3.
11

 To protect the public and its members, on March 14, 2020, the
General Assembly adjourned until March 30, 2020. See H.R.J. Res.
2020-1006, 72d Gen. Assem., 2d Reg. Sess. (Colo. 2020) at 2–3 (stating
why the Assembly would likely adjourn); H.R.J. Res. 2020-1007, 72d
Gen. Assem., 2d Reg. Sess. (Colo. 2020) (adjourning the Assembly until
March 30, 2020). Following that adjournment, one General Assembly
member tested positive for COVID-19, further highlighting the risk to
both legislators and members of the public with whom they interact.
Jesse Paul, Colorado lawmaker tests positive for coronavirus, THE COLO.
SUN (Mar. 23, 2020).3 It remains very possible that the existing
adjournment of the General Assembly will extend well beyond March
30, 2020 and even beyond the 120th consecutive calendar day from the
start of its current session.
Because some have voiced uncertainty over whether the Joint
Rules satisfy the constitution, and a subsequent ruling that they do not

Available at https://coloradosun.com/2020/03/23/jim-smallwoodcoronavirus/ (last visited Mar. 24, 2020).
3

12

 would cast doubt on any work done after May 6, 2020 (the 120th
consecutively counted day from the beginning of the session), the
General Assembly sought the Court’s guidance. The Governor and the
Attorney General are grateful for the Court’s consideration of this issue.
The Court’s answer will significantly impact the General Assembly’s
ability to respond to this emergency, as well as carry out all of its
regular duties.
APPLICABLE LEGAL STANDARDS
Two sets of interpretive principles apply here: (1) the principles
applicable when interpreting constitutional amendments, and (2) the
principles governing constitutional challenges to legislative rules.
Interpretation of a Constitutional Amendment. When interpreting
a constitutional amendment, the Court’s goal is to give effect to the
intent of the electorate that adopted it. Zaner v. City of Brighton, 917
P.2d 280, 283 (Colo. 1996). The Court first looks to the amendment’s
plain language and applies it as written if it is unambiguous. Gessler v.
Smith, 419 P.3d 964, 969 (Colo. 2018). To be unambiguous, the
13

 amendment must be reasonably susceptible to only one interpretation.
Id.
If the plain language is reasonably susceptible to more than one
interpretation, it is ambiguous. Id. Courts interpret ambiguous
amendments “in light of the objective sought to be achieved and the
mischief to be avoided by the amendment.” Zaner, 917 P.2d at 283. To
do so, the Court may examine relevant materials, including the ballot
information booklet (“Blue Book”) provided to voters at the time of the
amendment’s adoption. Davidson v. Sandstrom, 83 P.3d 648, 655 (Colo.
2004) (quoting In Re Submission of Interrogatories on H.B. 99-1325, 979
P.2d 549, 554 (Colo. 1999)). Preceding legislative debates, however, are
not relevant because the Court’s analysis must focus on what the
electorate believed when it adopted the amendment. In Re S. Res. No. 2
Concerning Constitutionality of House Bill No. 6, 31 P.2d 325, 330 (Colo.
1933); see also Davidson, 83 P.3d at 655 (“The intent of the drafters, not
expressed in the language of the amendment, is not relevant to our
inquiry.”).
14

 Constitutionality of Legislative Rules. This Court has repeatedly
recognized that statutes receive a presumption of constitutionality. See,
e.g., People v. Ford, 773 P.2d 1059, 1062 (Colo. 1989). The same logic
supports giving legislative rules the same presumption, as the Court of
Appeals has done. Grossman v. Dean, 80 P.3d 952, 964 (Colo. App.
2003).
The presumption of constitutionality arises from the Court’s
conclusion that legislators act in good faith to uphold their oaths to the
constitution. In re S. Res. No. 2, 31 P.2d 325, 329–30 (Colo. 1933); see
also City of Greenwood Vill. v. Petr’s for Proposed City of Centennial, 3
P.3d 427, 440 (Colo. 2000) (The reason for the presumption is the
“foundational premise” that each branch of government “observe[s] and
effectuate[s] constitutional provisions in exercising their power.”).
Similar to statutes, the General Assembly adopts legislative rules under
a specific grant of constitutional authority and through a formal
process. COLO. CONST. art. V, § 12 (“Each house shall have power to
determine the rules of its proceedings ….”); see, e.g., S.J. Res. 2009-004,
15

 67th Gen. Assem., 1st Reg. Sess. (Colo. 2009) (adopting Joint Rule 44).
Therefore, the presumption of constitutionality applies to legislative
rules. Any person challenging a legislative rule must prove that the rule
is unconstitutional beyond a reasonable doubt for this Court to declare
it void. See Greenwood Vill., 3 P.3d at 440. 4
In addition to the general presumption, the General Assembly is
entitled to clarify ambiguities in the constitution “in a manner
consistent with the terms and underlying purposes of the constitutional

In a previous interrogatory, this Court indicated that the presumption
of constitutionality is inapplicable when “the bill in question has not
been passed and the legislature has certified to us that they are not
certain of its constitutionality.” In re Submission of Interrogatories on
House Bill 99-1325, 979 P.2d 549, 554 (Colo. 1999). That holding does
not apply here because Joint Rule 44 has already been passed. S.J. Res.
2009-004, 67th Gen. Assem., 1st Reg. Sess. (Colo. 2009). Indeed, its
passage appears to have been unanimous. S. Journal at 26, 67th Gen.
Assem., 1st Reg. Sess. (Colo. 2009) (reporting vote of 33 “yes” and 0 “no”
votes with 1 excused); Introduction and Consideration of S.J.R. 09-004,
67th Gen. Assem., 1st Reg. Sess. (Colo. H.R. Jan. 9, 2009) at 6:28–6:46
(recording of voice vote with no audible opposition). Not applying the
presumption would discard the assumption that the legislators that
passed Joint Rule 44 acted in a manner consistent with their oaths of
office. Respect for a co-equal branch of government should stay the
Court’s hand in doing so here.
4

16

 provisions.” In re Great Outdoors Colo. Tr. Fund, 913 P.2d 533, 539
(Colo. 1996). And, “[w]here possible, courts should adopt a construction
of a constitutional provision in keeping with that given by coordinate
branches of government.” Id. at 538. Taken together, these rules place a
heavy burden on a constitutional challenge to a legislative rule.
SUMMARY OF THE ARGUMENT
The Colorado Constitution’s requirement that a regular session of
the General Assembly may not exceed “one hundred twenty calendar
days” is ambiguous because it does not state whether the days must be
counted consecutively or in some other manner. While this language
demonstrates a desire for a limited session, it provides no guidance
regarding what should occur when circumstances outside of the
legislature’s control prevent the General Assembly from meeting.
Exercising its constitutional authority, the General Assembly
adopted rules clarifying the constitutional language and filling this gap.
These rules count the 120 days consecutively except when the Governor
has declared a specific type of public health disaster emergency, in
17

 which case only “working calendar days” count for the duration of the
emergency.
The General Assembly’s rules are consistent with the voters’
intent. Voters adopted the 120-day limit to protect the General
Assembly’s status as a part-time, citizen legislature while still giving it
enough time to legislate. The General Assembly’s rules foster both goals
by making it easier for individuals to serve in legislative office while
reserving time for the General Assembly to legislate when events
entirely out of its control disrupt the regular session.
Rejecting the General Assembly’s rules threatens to cripple
government. It would deprive the General Assembly of much needed
flexibility during a public health crisis and place legislators in the
position of choosing between their families’ and their own personal
safety, and their obligations to their constituents. It would also require
legislators to consider proceeding under circumstances that limit—or
even exclude—the public’s direct access to the legislative process.

18

 The General Assembly’s rules regarding the 120-day limit cannot
be shown to be unconstitutional beyond a reasonable doubt. Indeed,
they are constitutional because they clarify an ambiguity in the
constitution in a manner consistent with the voters’ intent. This Court
should affirm their constitutionality.
ARGUMENT
I.

While Section 7 demonstrates an intent to limit
the legislature’s term, it is ambiguous because its
plain language does not address how to count the
120 calendar days permitted in a regular session.

Section 7 provides, “Regular sessions of the general assembly shall
not exceed one hundred twenty calendar days.” COLO. CONST., art. V,
§ 7. While this language limits a regular session to 120 “calendar days,”
it sheds no light on how the days should be counted.5 It could mean

While the use of “calendar days” avoids the issue of what counts as a
“day,” it does not answer whether the days must be consecutive. For
example, the Wyoming Supreme Court has held that “a day
commencing at noon means a day closing at noon the following day.”
White v. Hinton, 30 P. 953, 955 (Wyo. 1892). “Calendar days” avoids
such an interpretation.
5

19

 consecutive days. It could mean days of the week excluding Saturday,
Sunday, and holidays. It could mean any combination of nonconsecutive days, so long as the total count does not exceed 120
calendar days.6
Indeed, case law from other jurisdictions demonstrates that
referring to a “day” or a “calendar day” does not necessarily mean
consecutive days. For example, the Wyoming Supreme Court has noted,
“Whether the limitation of 40 days means 40 consecutive days, or 40
days of actual legislative session, … is a question upon which there
seems to be some conflict of judicial opinion.” White, 30 P. at 955. And
the Alabama Supreme Court has held that days when both houses of
that State’s legislature are adjourned do not count when determining if
its legislature has been in session for “longer than fifty days,” as
prohibited in the Alabama Constitution. In re Opinions of the Justices,

Section 2-4-108, C.R.S., which uses consecutive days for measuring
periods of time, does not answer the question here because to the extent
it conflicts with Joint Rule 44, the joint rule is the more specific of the
two and would control. § 2-4-205, C.R.S.

6

20

 113 So. 621, 622 (Ala. 1927) (interpreting ALA. CONST. art. IV, § 48)
(citing Moog v. Randolph, 77 Ala. 597, 608 (1884)). 7
Looking at how some other state constitutions determine when
their legislative sessions must end only further demonstrates Section
7’s ambiguity:
• North Dakota: “No regular session of the legislative
assembly may exceed eighty natural days …. Days spent in
regular session need not be consecutive …. As used in this
section, a “natural day” means a period of twenty-four
consecutive hours.” N.D. CONST. art. IV, § 7.
• Washington: “During each odd-numbered year, the regular
session shall not be more than one hundred five consecutive
days.” WASH. CONST. art. II, § 12.

Citing the case law from Alabama and Wyoming, one leading treatise
states, “Where a session is limited to a specified number of days, courts
usually hold the provision to mean legislative working days, rather than
consecutive days.” Norman Singer & Shambie Singer, 1 SUTHERLAND
STATUTES & STATUTORY CONSTRUCTION § 6:7 (7th ed. Oct. 2019)
(emphasis added).
7

21

 • Oklahoma: “[T]he regular session shall be finally adjourned
sine die not later than five o’clock p.m. on the last Friday in
May of each year.” OKLA. CONST. art. V, § 26.
Section 7 lacks this level of clarity, leaving it reasonably susceptible to
at least two relevant interpretations: (1) A regular session of the
General Assembly cannot exceed 120 consecutive calendar days; or (2) A
regular session of the General Assembly is limited to 120 calendar days
and must be completed within 120 consecutive calendar days except
when deviating from consecutively counting days is consistent with the
overarching goal of ensuring a part-time, citizen legislature.
In short, Section 7 is ambiguous.
II.

The General Assembly’s interpretation of Section
7 is consistent with the voters’ intent because it
maintains the part-time, citizen legislature
voters intended by adding the 120-day limit to
the constitution.

Because Section 7 is ambiguous, the question becomes whether
the General Assembly’s rules clarify those ambiguities “in a manner
consistent with the terms and underlying purposes of the constitutional
22

 provisions.” In re Great Outdoors Colo. Tr. Fund, 913 P.2d 533, 539
(Colo. 1996). They do.
A.

Voters adopted the 120-day limitation
to maintain the General Assembly as a
part-time, citizen legislature while still
giving it sufficient time to legislate.

The 1982 and 1988 Blue Books provide the strongest guidance on
why the voters chose to limit the number of days in a regular session
because they provide insight into what voters understood about the
provisions. In Re S. Res. No. 2 Concerning Constitutionality of House
Bill No. 6, 31 P.2d 325, 330 (Colo. 1933). Both Blue Books make clear
that the purpose behind their respective amendments was to maintain
a part-time, citizen legislature while giving the General Assembly
sufficient time to legislate.
For example, the 1982 Blue Book advised voters that the purpose
behind including the then-140-day limit was to “assur[e] continuation of
the part-time, citizen legislature” while providing the General Assembly
enough time “to meet forseeable [sic] workloads.” 1982 Blue Book at 21–
22.
23

 The 1988 Blue Book similarly stated, “The proposal is necessary to
maintain the ‘citizen legislature’ which has existed since statehood.”
1988 Blue Book at 6. It argued that the 120-day limit would require the
legislature to be more efficient but also noted, “State legislatures in
other states of comparable or greater population are in session fewer
days per year than Colorado and appear to meet their responsibilities.
Critical or important issues can be considered and acted upon within
this time limitation.” Id. This language again expresses the concern
that the General Assembly have sufficient time to legislate and
contemplated that the full 120 calendar days would be available for that
purpose.
Thus, as explained to voters, the amendments’ objectives were to
maintain the part-time, citizen legislature Colorado has enjoyed since
statehood in a way that would still provide enough time to legislate.
The General Assembly’s rules are consistent with these goals.8

It is this consistency with the electorate’s goals that prevents Joint
Rule 44 from running afoul of this Court’s admonition that the fact of
24
8

 B.

The General Assembly’s rules promote
a part-time, citizen legislature by
providing certainty in normal times
and addressing the unique challenges a
public health crisis presents in a way
that encourages Coloradans from all
walks of life to serve in legislative
office.

The General Assembly gave effect to the voters’ intent through
Joint Rules 23(d) and 44(g). Joint Rule 23(d) provides that the 120 days
of the legislative session will be counted consecutively. This is the most
conservative approach for counting days and results in the shortest
possible session when compared to other possible interpretations. Joint
Rule 23(d) also provides the greatest level of certainty for legislators
regarding when a session will end, enabling them to order their non-

an emergency does do not itself create exceptions to clear constitutional
language. See In Re S. Res. No. 2, 31 P.2d at 332 (criticizing the United
States Supreme Court for approving “emergency legislation” that would
be considered unconstitutional “in times of prosperity”). Unlike in In Re
Senate Resolution No. 2, the General Assembly’s interpretation of
Section 7 is consistent with the voters’ intent. See id. at 330, 332
(comparing the nature of the bill at issue with “the purpose of the
people in adopting” the relevant constitutional provision).
25

 legislative citizen affairs appropriately and predictably. This promotes
the General Assembly’s status as a part-time, citizen legislature by
providing greater predictability and available time for legislators to
manage their non-legislative responsibilities. This, in turn, makes it
easier for regular citizens to be members of the legislature, as the voters
intended.
Joint Rule 44 similarly promotes the General Assembly’s status as
a part-time, citizen legislature by pausing the consecutive-counting rule
in the rare event of a public health disaster. First, Joint Rule 44 fosters
a citizen legislature by assuring lawmakers that if there is a public
health disaster, they will not have to choose between remaining at the
legislature to represent their constituents or returning home to protect
their health and support their families and communities.
Instead, once the emergency has passed, they can return to the
legislature to finish the session, representing their constituents after
the public health crisis has abated without sacrificing some or all of the
available calendar days remaining under the 120-day limit. Providing
26

 that flexibility makes it more—not less—likely that every-day citizens
from all walks of life can be legislative members.
Second, pausing the consecutive counting of days during a public
health crisis ensures that Colorado will have a functioning legislature if
such a crisis occurs by guaranteeing that the General Assembly receives
the full 120 days voters granted it to exercise its broad authority to
legislate. Without Joint Rule 44, a public health crisis arising early in
the regular session could deprive Coloradans of an effective legislature
in the first instance. One hundred twenty days was the amount of time
voters chose to grant to the General Assembly, believing that was a
sufficient period of time for the Assembly to meet. Joint Rule 44 ensures
that, in times of public health crises, legislators receive that full period
to fulfill their legislative responsibilities.9 In addition, it protects the

To be clear, all that happens when the conditions for Joint Rule 44
exist is that the consecutive counting of days pauses and only working
calendar days count toward the 120-day limit. To use the current
circumstances, every calendar day from the beginning of the session
until the Governor declared a public health disaster emergency would
count. Until the public health disaster emergency ends, only days on
27
9

 legislators’ health by not requiring them to work during a public health
emergency, and it protects the ability of citizens to engage safely in the
legislative process.
Finally, Joint Rule 44 is unlikely to deter anyone from seeking
legislative office because the conditions that satisfy the rule will so
rarely come to pass. Joint Rule 44(a) (governing when Joint Rule 44
applies). This public health crisis represents the first time the rule has
been triggered and likely the first time the conditions the rule requires
have been present in at least 60 years. 10 Thus, the possibility that a
regular session may not end after 120 consecutively counted days in the

which at least one of the General Assembly’s houses meets will count.
And once the public health disaster emergency ends, the General
Assembly must automatically resume counting consecutive calendar
days toward the 120-day limit. Joint Rule 44 does not grant the General
Assembly additional days to conduct official business.
The Federal Emergency Management Agency maintains a database of
all federal disaster declarations since 1953 by state. Given the type of
disaster necessary for Joint Rule 44 to apply, a corresponding disaster
declaration at the federal level would have been likely. No such
declaration appears for Colorado when searching that database.
https://tinyurl.com/tgvq8uz (last visited Mar. 22, 2020).
10

28

 event of a public health crisis does not undermine the goal of having a
part-time, citizen legislature.
In promoting both goals behind the 1982 and 1988 amendments,
the General Assembly’s rules are “consistent with the terms and
underlying purposes of the constitutional provisions.” In re Great
Outdoors Colo. Tr. Fund, 913 P.2d 533, 539 (Colo. 1996). The Court
should affirm their constitutionality.
C.

Nothing in the information provided to
voters demonstrates that the General
Assembly’s rules are unconstitutional
beyond a reasonable doubt.

As explained above, the General Assembly developed joint rules
consistent with the voters’ intent in adopting the 1982 and 1988
amendments. Although some statements in the Blue Book appear, at
first blush, to create some doubt regarding the rules’ constitutionality,
they do nothing of the sort on closer examination. And even if they
raised questions, these statements still would not demonstrate that the
General Assembly’s rules are unconstitutional beyond a reasonable
doubt.
29

 1.

The discussion of a special session
as a response to a crisis occurring
after adjournment has no bearing
on the issue here and would be an
inadequate remedy to the problem
Joint Rule 44 seeks to solve.

In justifying the 120-day limit, the 1988 Blue Book notes, “State
emergencies which may arise in the legislative interim can still be
addressed through special sessions ….” 1988 Blue Book at 6 (emphasis
added). Some might argue that this language supports the use of special
sessions to address emergencies.
But the rules at issue here contemplate a crisis during the regular
session—not the legislative interim. The language from the 1988 Blue
Book does not address the remedy for an interrupted regular session. In
fact, the statements in the Blue Book all presume that the General
Assembly will have full use of the 120 days the amendment allows.
A special session is also an inadequate remedy for an interrupted
regular session for two reasons. First, if the governor calls the special
session, the legislature is bound by whatever subject matter the
governor chooses. COLO. CONST. art. V, § 7 (providing that the Assembly
30

 may only legislate in areas specified by the party calling the special
session). This provision allows the governor to choose the areas in which
the legislature may legislate instead of maintaining the broad authority
the legislature enjoys during a regular session. Colo. Gen. Assem. v.
Lamm, 704 P.2d 1371, 1380 (Colo. 1985) (“In broad outline, it is the
province of the general assembly to enact legislation and the province of
the executive to see that the laws are faithfully executed.”).
Second, the idea that a special session the governor calls could
serve as a remedy is also inconsistent with the primary reason for the
1982 amendment: ending the practice of the governor setting the
legislative agenda in even-year sessions. 1982 Blue Book at 21–22. To
argue that a special session called by the governor is the remedy for
losing the ability to legislate during the regular session is to disregard
the voters’ intent in passing the 1982 amendment. This argument
would also deprive voters of their elected officials’ ability to consider
legislation that may not be aligned with the governor’s call for the
special session.
31

 The General Assembly’s ability to call a special session is also an
inadequate remedy for three reasons. One, the General Assembly would
still be bound by whatever topics it included in the call for a special
session. COLO. CONST. art. V, § 7 Although the Assembly could attempt
to write the topics broadly, uncertainty remains regarding how broad
the scope of a special session may be before running afoul of the
constitution. Denver & R. G. R. Co. v. Moss, 115 P. 696, 697 (Colo. 1911)
(holding unconstitutional legislation enacted under broadly phrased
special session); but see Empire Savings, Bldg. & Loan Ass’n v. Otero
Savings & Loan Ass’n, 640 P.2d 1151, 1156 n. 8 (Colo. 1982) (criticizing
Moss in dicta).
Two, two-thirds of both houses must agree to call a special session.
COLO. CONST. art. V, § 7. Because legislators will know the kinds of
legislation to be introduced in the special session based on the
legislation that was at issue before the regular session was disrupted,
they may choose to withhold their support for a special session unless
particular topics are expressly excluded or included in the special
32

 session’s “call” for topics to be addressed.11 This essentially imposes a
super-majority requirement on the lawmaking process that undermines
the constitution’s directive that bills pass on a majority vote. COLO.
CONST. art. V, § 22.
Three, presuming that a special session’s “call” allows for bill
subjects to be considered that were terminated during the regular
session and would have otherwise been enacted, a special session—
called by either the governor or the General Assembly—would reset the
legislative process for those bills. If the General Assembly were forced
to start anew with a special session, the 355 bills pending in the current
regular session would either be limited from introduction by the special

The “call” is a term used to refer to the document that delineates the
specific topics to be considered at a special session. See, e.g., Exec. Order
No. D 2012-010, “Call for the First Extraordinary Session of the SixtyEighth General Assembly,” (May 10, 2012) (Appendix J) (“EO 2012010”). The 2012 call demonstrates the governor’s authority to limit the
session to those topics the governor believes the General Assembly
should consider. Id. at 1–2.
11

33

 session “call”; or, if allowed under the “call,” subject to reintroduction at
the initial starting point of the legislative process.
Starting the process over because of an intervening public health
crisis places unnecessary burdens on Coloradans and undermines the
intent behind the 120-day limit. Members of the public who already
testified regarding a bill during the interrupted session would need to
attend new hearings during the special session to ensure their voices
were heard. 12 If the bill followed the same committee process, they

For example, in the 2012 special session, at least ten people attended
two separate hearings on two separate days on a bill dealing with
penalties for driving under the influence that had been part of the 2012
regular session. Hearing on H.B. 12S-1005 Before the H. Comm. on
State, Veterans, and Military Affairs, 68th Gen. Assem., 1st
Extraordinary Sess. (Colo. May 14, 2012); Hearing on H.B. 12S-1005
Before the S. Comm. on State, Veterans, and Military Affairs, 68th Gen.
Assem., 1st Extraordinary Sess. (Colo. May 15, 2012); compare S.B. 12117, 68th Gen. Assem., 2d Reg. Sess. (Colo. 2012) and H.B. 12S-1005,
68th Gen. Assem., 1st Extraordinary Sess. (Colo. 2012). At least some of
these individuals had already testified on the bill in the regular session.
Compare Hearing on H.B. 12S-1005 Before the H. Comm. on State,
Veterans, and Military Affairs, 68th Gen. Assem., 1st Extraordinary
Sess. (Colo. May 14, 2012) and Hearing on S.B. 12-117 Before the S.
Comm. on State, Veterans, and Military Affairs, 68th Gen. Assem., 2d
Reg. Sess. (Colo. Feb. 27, 2012)
12

34

 would even be making the same arguments on the same bills to the
same legislators. This is a considerable burden, particularly for
Coloradans living outside the Denver metropolitan area. Moreover,
starting over would require substantial additional time to repeat
procedures for those bills that are well underway, requiring the
legislature to remain in session for a longer period of time—or to shortcircuit the process for evaluating complex legislation. 13 In either case,
starting the process over undercuts the goal of a part-time, citizen
legislature that produces effective results for the people of Colorado.
In short, a special session is an inadequate remedy for an
interrupted regular session.

It would be tempting to point to the 2012 special session, which lasted
three days, to argue that a special session would not necessarily result
in either of these problems. H. Journal at 7, 26, 68th Gen. Assem., 1st
Extraordinary Sess. (Colo. 2012) (noting ready for business on May 14,
2012 and adjournment sine die on May 16, 2012)). But the 2012 special
session was limited to issues that had been thoroughly vetted by the
General Assembly in the regular session. EO 2012-010 at 1-2. It did not
include bills that had never been subjected to the full legislative
evaluation process, as would be the case with a special session called to
compensate for a public health disaster.
13

35

 2.

The desire to prevent changes to
the 120-day limit by statute or rule
does not invalidate the General
Assembly’s rules.

The 1988 Blue Book also explained that by placing the 120-day
limitation in the constitution, “the limitation cannot be changed by
statute or legislative rule.” 1988 Blue Book at 6. This is true to the
extent it means that the General Assembly has no power to change the
120-day limit to 200 days, for example. Indeed, it appears to have been
related to the argument against the proposal that there may be years
when 120 days is insufficient and locking the requirement into the
constitution would deprive the General Assembly of the ability to
modify the length of the session to handle those issues. Id.
But the General Assembly’s rules do not modify the 120-day limit.
They reasonably clarify the limit the voters put in place.
To the extent the voters intended to prevent legislative
manipulation of the 120-day limit, that concern does not arise here. See
Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo. 1996) (explaining
courts should consider the “mischief” to be prevented in interpreting a
36

 constitutional amendment). The General Assembly’s rules do not vest it
with the discretion to avoid the 120-day limit. Indeed, the conditions to
trigger Joint Rule 44 rarely occur, are entirely outside of the
legislature’s control, and are subject to the governor’s declaration of a
public health disaster, removing any possible specter of legislative
manipulation.14 The same is true regarding when Joint Rule 44 ceases
to operate. Once the disaster emergency is over, Joint Rule 23(d)
automatically applies again.
The General Assembly’s rules clarify the application of the 120day limit in a way that supports the voters’ desire to maintain a parttime, citizen legislature. The rules are consistent with the
constitution—and at the very least not unconstitutional beyond a
reasonable doubt—and the Court should uphold them.

Indeed, a rule that was open to legislative manipulation would likely
be inconsistent with the voters’ intent in adopting the 1988 amendment.
Such a rule could not pass constitutional muster.
14

37

 III. Holding the General Assembly’s interpretation
unconstitutional threatens to cripple
government.
In cases involving a different constitutional amendment that
places some limitations on government, this Court has applied the
principle that it will not interpret constitutional amendments in a way
that cripples government. Barber v. Ritter, 196 P.3d 238, 248 (Colo.
2008) (applying this principle in context of article X, section 20
(“TABOR”)); see also Dwyer v. State, 357 P.3d 185, 196 (Colo. 2015)
(Márquez, J., dissenting) (applying the same principle in context of
article IX, § 17). Here too, voters intended to place some limits on the
General Assembly, but they did not intend to cripple the government’s
ability to function.
That is exactly what would happen if Section 7 were read to
require that days be counted consecutively without exception. Requiring
consecutive counting in all situations would deprive the General
Assembly of flexibility at the exact moment it needs it most.

38

 During a public health crisis the General Assembly may not have
sufficient time to plan around it and prioritize legislation as it could
with other emergencies. Such a crisis may also make it unsafe for the
General Assembly to meet and consider bills that need to pass—as
happened here—or to meet under circumstances that would limit public
access to the legislative process. Beyond certain obvious candidates
such as passage of the annual Long Appropriations Act, School Finance
Act, and rule review bill,15 any number of regulatory regimes may need
to be reauthorized as part of a sunset review. Yet, in a strict
consecutive-only approach, the General Assembly may not be able to act
unless it can later convince the governor to call a special session or
obtain the super majority needed to call its own special session. That
may not always be possible.

The annual rule review bill approves new agency rules unless the
rules are specifically listed as expiring in the bill. See, e.g.,
Administrative Rule Review, 2019 Colo. Sess. Laws 1896. Failing to
pass the rule review bill would cause substantial harm to
administrative agencies.
15

39

 Further, a strict, consecutive-only interpretation places the
General Assembly in a very challenging situation. Its members can
forgo the opportunity to legislate on matters important to their
constituents; or they can stay in session but receive limited or no public
comment because the disaster forces citizens to avoid the State Capitol,
making the process much less democratic; or they could remain in
regular session and place themselves and their constituents in the
position of either participating in the democratic process or protecting
their health. The recent example of a legislator contracting COVID-19,
which could spread to other General Assembly members or members of
the public, only highlights the risk.
It is also unclear how a consecutive-only approach would be
consistent with section 20 of article IV of the state constitution, which
requires that every bill referred to committee be considered on its
merits. During a public health crisis, the General Assembly may not be
able to return by the end of a consecutive 120-day period to hold
hearings on every bill referred to committee. Consequently, all pending
40

 bills remaining on the House and Senate calendars, including those not
having yet met the constitution’s requirement of consideration on the
merits, will be terminated upon adjournment sine die. And even if the
General Assembly is able to return before the 120th consecutive day,
there may not be enough time for a vote and consideration on the merits
of all of the previously pending bills.
A strict consecutive-only approach could require the General
Assembly to either violate the constitution’s requirement that all bills
receive a vote and consideration on the merits or to return within the
120-day period—but before it is actually safe to do so—solely to comply
with this requirement. That cannot be what the constitution requires.
By contrast, Joint Rules 23(d) and 44 avoid all of these issues in
the event of a public health crisis. They safeguard the health of the
public and lawmakers, promote democratic engagement, and allow the
General Assembly to uphold its constitutional obligations. And they do
so in a way that furthers the voters’ overall intent in adopting the 120day limit. The General Assembly’s rules permissibly clarify the
41

 application of the 120-day limit, and this Court should affirm their
constitutionality.
CONCLUSION
The General Assembly has reasonably interpreted Section 7’s
requirement that regular legislative sessions may not exceed 120
calendar days. The Court should hold that in a declared disaster
emergency, as contemplated in Joint Rule 44, the 120-day limitation
applies only to calendar days on which the Senate or the House of
Representatives, or both, convene in regular legislative session.
Respectfully submitted this 24th day of March 2020,
By:

/s/Russell D. Johnson
Natalie Hanlon Leh, Chief Deputy Att’y Gen.,
18824*
Eric R. Olson, Solicitor Gen., 36414*
Kurtis Morrison, Deputy Att’y Gen., 45760*
Terry Gill, Deputy Att’y Gen., 22398*
Russell D. Johnson, Sr. Asst. Att’y Gen., 48482*
Noah C. Patterson, Sr. Asst. Att’y Gen., 42339*
Jefferey D. Riester, Asst. Att’y Gen., 46520*
Elisabeth Mabus, Att’y Gen. Fellow, 53868*
Adam T. Rice, Att’y Gen. Fellow, 53963
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 10th Floor
42

 Denver, CO 80203
Telephone: 720-508-6351
natalie.hanlonleh@coag.gov
eric.olson@coag.gov
kurtis.morrison@coag.gov
terry.gill@coag.gov
russell.johnson@coag.gov
noah.patterson@coag.gov
jefferey.riester@coag.gov
elisabeth.mabus@coag.gov
adam.rice@coag.gov
Attorneys for the Governor and Attorney General
of the State of Colorado

43

 CERTIFICATE OF SERVICE
This is to certify that I have duly served the within COMBINED
BRIEF OF THE GOVERNOR AND THE ATTORNEY GENERAL
OF THE STATE OF COLORADO upon all parties listed below by
Colorado Courts E-Filing or by depositing copies of same in the United
States mail, first-class postage prepaid, at Denver, Colorado, this 24th
day of March, 2020, addressed as follows:
Jason Andrew Gelender

John F. Walsh
Ken Salazar
Michael J.P. Hazel
Matthew Worthington
Mairead K. Dolan
Heidi K. Ruckriegle
WILMER CUTLER PICKERING HALE
AND DORR LLP

Attorney for Interrogatory
Served via e-service

Matthew Fritz-Mauer
THE KELMAN BUESCHER FIRM

Attorneys for Colorado General
Assembly
Served via e-service

Attorney for Colorado Association
of Local Public Health Officials
Served via e-service
Scott E. Gessler
Gessler Law LLC

Troy A. Eid
Josiah E. Beamish
GREENBERG TRAURIG LLP
Attorneys for 40 Individual
Members of the Colo. Gen. Assem.
Served via e-service

Attorney for Chris Paulson
Served via e-service

/s/Andrea DeHart _________________
Andrea DeHart
44