By Julie Pelegrin

As reported earlier, the General Assembly recently asked the Colorado Supreme Court to tell them whether, during a statewide public health declared disaster emergency, the General Assembly is allowed to determine the length of the regular legislative session by counting only “working calendar days” rather than consecutive calendar days. Because the General Assembly is currently in a temporary adjournment, this question of how to count the days is key to scheduling the remainder of the 2020 regular legislative session.

Last Wednesday, the Supreme Court published its answer: Only working calendar days, “i.e., calendar days when at least one chamber is in session”, will count in determining the length of the session when the General Assembly is operating under a declared public health disaster emergency.

As we previously explained, the voters amended the provisions of article V, section 7 of the Colorado Constitution (section 7) in 1982 to limit the length of the legislative session in even-numbered years to 140 “calendar days” and in 1988 to limit the length of all regular legislative sessions to 120 “calendar days.” The General Assembly adopted Joint Rule 23 (d) to clarify that “calendar days” are to be counted consecutively and in 2009 adopted Joint Rule 44 (g) to make the very limited exception for counting “calendar days” as only the working calendar days if the General Assembly meets in regular legislative session during a declared public health emergency.

The Supreme Court’s decision was a 4-3 vote, so the answer was by no means a slam dunk. The analysis turned on whether the phrase “calendar days” used in the constitution is ambiguous or whether it plainly requires the calendar days to be counted consecutively from the first day of the legislative session.

Justice Marquez, writing for the majority, concluded that the phrase is ambiguous. The Court considered the plain meaning of calendar days (i.e., days running from midnight to midnight) and the fact that the text of section 7 does not specify that calendar days are to be counted consecutively. It concluded that section 7 “may just as reasonably be construed to allot a sum of days during which the General Assembly may meet in regular session – continuously or not – to complete its work, so long as the total does not exceed 120 calendar days.”

The Court also analyzed Joint Rule 23 (d) and Joint Rule 44 (g), first noting that, like statutes, legislative rules are presumed to be constitutional unless proven to be unconstitutional beyond a reasonable doubt. The Court specifically looked to whether the legislative rules were true to both the text and the purpose of the limitation on the length of the legislative session.

The Court identified the purpose of the limitation as being to both preserve the Colorado tradition of a part-time citizen legislature and ensure sufficient time for the General Assembly to complete the critical work of legislating for the people of the state. The Court then concluded that the legislative rules support these purposes by defaulting to 120 consecutive days in all but the rarest of situations while allowing the General Assembly the necessary flexibility and time to legislate in response to a disaster emergency. Having already found that the text did not require calendar days to be counted consecutively, the Court held that Joint Rule 23 (d) and Joint Rule 44 (g) are consistent with the text and support the purposes of section 7 and, in combination, are a reasonable interpretation of section 7. As such, the rules are constitutional.

As stated previously, this decision was a close call. Three of the seven justices dissented from the majority decision. Although the dissent acknowledges that the state is operating in “unprecedented times”, it cites to precedent stating, “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.”

In the view of Justice Samour, who wrote the dissent, section 7 is not at all ambiguous. By specifying calendar days, the provision can only mean consecutive calendar days. Justice Samour looked to the dictionary definition of “calendar day” as a consecutive 24-hour day running from midnight to midnight, and concluded that 120 calendar days must be equal to a total of 2,880 consecutive hours (120 x 24 = 2,880). The dissent also looked to the use of “calendar days” in the statutes, finding that in every instance it means consecutive calendar days even though the word “consecutive” is not included in most cases. And, when the General Assembly means something other consecutive calendar days, the statute uses another term, such as “business days.”

The dissent also argued that, even if section 7 is ambiguous, by adopting Joint Rule 44 (g), the General Assembly is in essence amending section 7. And the General Assembly cannot by rule or statute amend the constitution; only the people can do that.

Finally, the dissent feared the majority opinion opens a “Pandora’s Box,” setting a precedent that future legislatures may abuse. While concerns about how a future legislature may apply the majority opinion may be well-founded, there is language in the majority opinion that arguably limits how far a future legislature can go in interpreting section 7 as allowing something other than consecutive calendar days.

The majority decision is narrowly written and does not give the General Assembly carte blanche to change the counting of calendar days in any circumstance it chooses. The Court made the point that the very limited conditions under which only working calendar days are counted are outside the control of the General Assembly and specifically stated that “a broader rule untethered to an external event such as a public health crisis or otherwise readily susceptible of legislative manipulation would be less likely to further the purposes of article V, section 7 and could be unconstitutional.”

So, while it is clear that so long as the current public health disaster emergency continues the General Assembly can count only the working calendar days in calculating the 120 calendar days of the 2020 regular session, its ability to do so under different circumstances in the future remains questionable.