Colorado Supreme Court rules legislature may extend its lawmaking term after coronavirus pause

The Colorado Supreme Court ruled Wednesday that the state legislature may extend its lawmaking term after taking a pause because of the coronavirus pandemic, breathing new life into Democrats’ policy plans and ending ambiguity swirling for weeks at the Capitol.

The Colorado General Assembly was originally supposed to adjourn on May 6, but after temporarily recessing on March 14 because of the new coronavirus outbreak, Democratic lawmakers wanted to use an emergency rule allowing them to continue past their planned end date.

Republicans challenged the rule — Joint Rule 44(g) — and said legislative sessions must end after 120 consecutive days under a constitutional amendment approved by voters in the 1980s. The rule was unanimously adopted in 2009 in the wake of the H1N1 flu epidemic and is triggered when the governor declares an emergency because of a health crisis.

But in a narrow, 4-3 decision handed down Wednesday afternoon, the Colorado Supreme Court ruled that the amendment is ambiguous and the legislature therefore can meet after May 6 to make up days it has missed because of the coronavirus.

In making its decision, the Supreme Court cited the flexibility needed by a part-time, citizen legislature in times of crisis. Extensions of Colorado lawmaking terms are necessary, the majority said, so that “citizen legislators do not have to choose between representing their constituents in the General Assembly and supporting their communities through the crisis at home.”

The court cited a Colorado Sun story that published earlier Wednesday about state Rep. Kyle Mullica, a Northglenn Democrat, who has returned to his job as an emergency room nurse during the lawmaking pause to treat coronavirus patients. 

“Joint Rule 44(g) permits, rather than stifles, members’ abilities to attend to these non-legislative obligations,” Justice Monica M. Márquez wrote in the majority’s opinion. 

MORE: A lawmaker returns to frontlines of the coronavirus fight as an ER nurse: “You can see a tsunami coming”

The court also rejected the notion that Gov. Jared Polis or the legislature could simply call a special lawmaking term to fill the void if the legislative session had to end on May 6. 

“Some have argued that the ability of the legislature to convene in a special session sufficiently addresses the challenges posed by an interrupted regular session,” Márquez wrote. “We disagree.”

Márquez was joined by Justices Richard L. Gabriel, Melissa Hart and William W. Hood in the majority.

“I thank the court in reaching this common-sense conclusion,” said Senate Majority Leader Steve Fenberg, a Boulder Democrat. “This ruling means when we return to the Capitol, we’ll have time to pass legislation to get Colorado’s families, businesses and economy back on their feet.”

Not only will Democrats now be able to pursue some of their largest agenda items — including a public health insurance option, a paid family and parental leave program, and stricter gun laws — but they also have some flexibility in when to resume the lawmaking term. Democrats in the Senate and House have been battling with each other in recent days on how to proceed.

Lawmakers must pass a budget before July, however, so they cannot drag the recess on for too long. But they will likely wait as long as possible given the economic uncertainty created by the coronavirus.

The lack of funds could also siginificantly hamper Democrats’ policy plans.

Legislative leadership has given no hint about when they might return. One lawmaker has already tested positive for COVID-19, the disease caused by the new coronavirus, and Colorado is under a statewide shelter-in-place order until at least April 11.

The coronavirus could be raging in Colorado through July, public health officials warned on Wednesday. The state has more than 3,300 confirmed cases of the disease, which has also killed more than 80 people.

“We will continue looking at the data and talking to public health experts to determine when it is safe to come back to the Capitol,” House Speaker KC Becker, a Boulder Democrat, said in a written statement. “Once we do return, we’ll need everyone at the table to solve our most difficult challenges.”

Justice Carlos A. Samour Jr., in writing a dissent for the minority, said voters were not ambiguous when they passed a constitutional amendment limiting the legislature to 120 calendar days. 

“I acknowledge that these are unprecedented times — we are in the throes of a worldwide pandemic precipitated by COVID-19,” Samour wrote. “But neither COVID-19 nor any other imaginable emergency allows our legislature to amend the state constitution through a statute, let alone a legislative rule like Joint Rule 44(g). … The people of Colorado should be extremely concerned about Rule 44(g) and its implications for the future of our wonderful state.” 

Samour said the rule is an excuse to “usurp Coloradans’ exclusive right to amend their constitution.” That, essentially, was the argument of Republican state lawmakers, too.

GOP state Sen. Bob Gardner, of Colorado Springs, has argued that the legislature is abdicating its responsibility by recessing during the coronavirus crisis. He has advocated for lawmakers to return to the Capitol with social distancing measures.

Chief Justice Nathan Coats and Justice Brian Boatright joined Samour in the dissent.

Joint Rule 44(g) had never before been triggered.