Cindi MARKWELL, Secretary of the Senate and Leroy M. Garcia, Jr., President of the Senate v. John B. COOKE, Senator Robert S. Gardner, Senator and Chris Holbert, Senate Minority Leader
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Full Opinion
Attorneys for Petitioners: Recht Kornfeld, P.C., Mark G. Grueskin, Marnie C. Adams, Denver, Colorado
Attorneys for Respondents: Jackson Kelly, PLLC, John S. Zakhem, Denver, Colorado
Attorneys for Amicus Curiae Governor Jared Polis: Philip J. Weiser, Attorney General, Eric R. Olson, Solicitor General, Grant T. Sullivan, Assistant Solicitor General, Stephanie Lindquist Scoville, First Assistant Attorney General, Denver, Colorado
En Banc
¶1 Separation of powers among the legislative, executive, and judicial branches of government is the foundation on which our democracy rests and the fount from which our liberties flow. In urging ratification of the U.S. Constitution, James Madison referred to separation of powers as "the sacred maxim of free government." The Federalist No. 47, at 308 (James Madison) (Clinton Rossiter ed., 1961). Indeed, it is difficult to fathom a more central precept to the spirit and genius of America. Respect for this venerable principle requires us to afford a certain berth of deference to the decisions and judgments of our sister branches of government. That deference, however, is not unlimited. Where, as here, the interpretation of a provision in our state constitution is implicated, it is both our prerogative and responsibility to wade into the fray.
¶2 The constitutional axis on which this case revolves is the reading requirement in article V, section 22 : "Every bill shall be read by title when introduced, and at length on two different days in each house; provided, however, any reading at length may be dispensed with upon unanimous consent of the members present." Colo. Const. art. V, § 22. The question before us is whether uploading a bill to multiple computers and using automated software to simultaneously give voice to different portions of the bill at a speed of about 650 words per minute complies with the reading requirement in article V, section 22. We think not.
¶3 There are unquestionably different ways by which the legislature may comply with the reading requirement. But the cacophony generated by the computers here isn't one of them. And while we have no business dictating the specifics of how the legislature might comply with the reading requirement, it is our prerogative and responsibility to declare that the legislature did not comply with that requirement in this case.
¶4 We therefore agree with the district court's determination that the unintelligible sounds produced by the computers did not fulfill the reading requirement. But we affirm in part and reverse in part because we conclude that it was not within the district court's domain to dictate the form or manner by which the legislature may comply with the reading requirement. "[I]n our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with common sense and the public weal." Tenn. Valley Auth. v. Hill , 437 U.S. 153, 195, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (internal quotation marks omitted). By prescribing how the legislature must comply with the reading requirement, the district court trespassed upon the separation-of-powers tenet so essential to our constitutional system of government.
¶5 In late February 2019, House Bill 19-1172 ("HB 1172")—a 2,023-page recodification of Title 12 of the Colorado Revised Statutes ("Professions and Occupations")—passed the Colorado House of Representatives. It was then introduced in the Colorado Senate and assigned to the Senate Committee on the Judiciary. On March 4, 2019, after receiving unanimous approval in that committee, the bill was referred for consideration by the full Senate.
¶6 The events that sparked this litigation occurred on March 11, 2019, when the bill was introduced in the Senate for its second reading. That morning, a member of the Senate asked for unanimous consent to waive the reading of the bill at length. Pursuant to article V, section 22 of the Colorado Constitution, Senator John B. Cooke requested that the bill be read at length.1 Because there wasn't unanimous consent to dispense with an at-length reading of the bill, article V, section 22 required that the bill be read in full. Colo. Const. art. V, § 22. A pair of Senate staffers duly began reading the bill aloud, taking turns reading at a quick, but intelligible pace.2 This continued until the staffers were instructed to stop, approximately three and a half hours after they began reading the bill.
¶7 The Senate Secretary, Cindi Markwell, then directed Senate staff to upload HB 1172 to multiple computers and to use automated software to recite different portions of the bill simultaneously at the maximum rate of about 650 words per minute. It is undisputed that four to six computers were then simultaneously used, each going over a different part of the bill, and that, together, they created a babel of sounds.3
¶8 Through their staff, Senators Cooke and Robert S. Gardner objected to this procedure and asked the Senate Secretary to slow down the computers.4 The Senate Secretary declined to change course, however. Then, at 3:15 p.m., Senate Minority Leader Chris Holbert asked the Senate President, Leroy M. Garcia, Jr., to slow down the computers. But, like the Senate Secretary, the Senate President refused to do so. Thus, between four and six computers continued to churn out unintelligible sounds for approximately four hours until the process completed shortly after 5 p.m.
¶9 The next morning, Senators Cooke, Gardner, and Holbert ("respondents") filed a verified complaint for injunctive relief and declaratory judgment against Senate President Garcia and Senate Secretary Markwell ("petitioners") in Denver District Court. Almost immediately, the court granted a temporary restraining order preventing petitioners from: (1) "refusing to read legislation"—including HB 1172—"in an intelligible fashion" without unanimous consent to dispense with the reading requirement, and (2) passing HB 1172 in violation of article V, section 22 "by failing to read the bill out loud on two consecutive days."
¶10 Respondents then filed a motion for a preliminary injunction. On March 19, 2019, the court held a hearing during which Senator Gardner testified about the unintelligible sounds produced by the computers. After listening to an audio recording of those sounds, the court agreed that they were indecipherable.
¶11 At the end of the hearing, the court granted a preliminary injunction. In a subsequent written order, the court examined whether the issue before it was justiciable, recognizing that it lacked authority to resolve nonjusticiable political questions. The court concluded that "judicial intervention at this juncture in the legislative process [was] appropriate and warranted" because "[w]hen a dispute arises that requires constitutional interpretation[,] it is incumbent upon the courts to resolve the issue." Since respondents' requests for relief required the interpretation of the reading requirement in article V, section 22, the court "[did] not perceive" the case to involve a nonjusticiable political question.
¶12 Having determined that it could hear the case, the court turned to whether the process that unfolded on the Senate floor on March 11, 2019, constituted "read[ing]" for purposes of article V, section 22. The court held that it did not. It reasoned that "using multiple computers to read simultaneously different portions of a bill ... at 650 words per minute [was] not within legitimate limits." The court noted that it could not "discern a single word" from the audio recording.
¶13 Next, the court applied the factors from Rathke v. MacFarlane , 648 P.2d 648, 653–54 (Colo. 1982), to ascertain whether a preliminary injunction was appropriate. As pertinent here, it found that: (1) respondents had a reasonable probability of success on the merits because "using multiple computers to read different portions of the bill at one time, at a speed the mind cannot comprehend, compromises and violates the legislative process"; (2) a preliminary injunction would prevent the real, immediate, and irreparable harm that would flow from a bill being passed in violation of the constitution; and (3) granting a preliminary injunction would protect the public interest by allowing HB 1172 to be read "in a comprehensible fashion." Weighing all the Rathke factors, the court ruled that respondents had met their burden on their request for a preliminary injunction.
¶14 The court thus entered a preliminary injunction, pursuant to C.R.C.P. 65(f), directing the Senate Secretary to comply with the reading requirement by "employ[ing] a methodology that is designed to read legislation in an intelligible and comprehensive manner, and at an understandable speed." The Senate later passed HB 1172, in compliance with this directive, and the Governor ultimately signed the bill into law on April 25, 2019.
¶15 On May 8, 2019, the court made the injunction permanent and granted respondents' request for a declaratory judgment. The court reiterated that: (1) "using five computers reading different portions of [HB 1172] at the same time at an incomprehensible speed" violated the reading requirement in article V, section 22, and (2) the Senate Secretary must read all future legislation "in an intelligible manner and at an understandable speed" upon a member's objection to a request to dispense with the reading requirement.
¶16 Petitioners appealed to the court of appeals. But the parties thereafter filed a joint C.A.R. 50 motion seeking direct review by our court. We granted the motion.5
¶17 This case requires us to consider the interwoven issues of justiciability, constitutional interpretation, and injunctive and declaratory relief. We first discuss the controlling standards of review. We then consider, but ultimately reject, petitioners' contention that, under Baker v. Carr , 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and its Colorado progeny, the question of whether the unintelligible computer sounds complied with the reading requirement is a nonjusticiable political question outside our purview.
¶18 After determining that this dispute is justiciable and properly before us, we draw guidance from established principles of constitutional interpretation and hold that the unintelligible sounds that emanated from the computers did not comply with the reading requirement. But, unlike the district court, we stop short of telling the legislature how to comply with the reading requirement.
¶19 We wrap up our discussion by addressing the district court's permanent injunction and declaratory judgment. Because both forms of relief dictated the specific manner by which the legislature must comply with the reading requirement, we conclude that they went too far. Accordingly, we affirm in part and reverse in part.6
¶20 We begin our analysis on a rare patch of common ground. The parties agree, and we concur, that issues of constitutional interpretation are questions of law that are subject to de novo review. Gessler v. Colo. Common Cause , 2014 CO 44, ¶ 7, 327 P.3d 232, 235.
¶21 In contrast to the interpretation of a constitutional provision, "[t]he grant or denial of a preliminary injunction is a decision which lies within the sound discretion of the trial court." Evans v. Romer , 854 P.2d 1270, 1274 (Colo. 1993) (quoting Rathke , 648 P.2d at 653 ). Likewise, the decision whether to enter a declaratory judgment is within the discretion of the trial court. Saxe v. Bd. of Trs. of Metro. State Coll. of Denver , 179 P.3d 67, 72 (Colo. App. 2007).
¶22 Generally, we show deference to a ruling within the trial court's discretion; only if such a ruling is manifestly unreasonable, arbitrary, or unfair will we overturn it. Evans , 854 P.2d at 1274. "If, however, the issue being reviewed concerns only legal, rather than factual[,] questions," we owe no deference to the trial court's ruling and our review is de novo. State ex rel. Salazar v. Cash Now Store, Inc. , 31 P.3d 161, 164 (Colo. 2001) (); see also Zab, Inc. v. Berenergy Corp. , 136 P.3d 252, 254 (Colo. 2006) ().
¶23 Before getting to the marrow of the matter, we must first address whether this case presents the kind of nonjusticiable political question "the resolution of which should be eschewed by the courts," Colo. Gen. Assembly v. Lamm , 704 P.2d 1371, 1378 (Colo. 1985), in order to honor the doctrine of separation of powers, Colo. Common Cause v. Bledsoe , 810 P.2d 201, 205 (Colo. 1991) (citing Colo. Const. art. III ). Like the district court, we conclude that the issue of whether the legislature complied with the reading requirement on March 11, 2019, requires constitutional interpretation and is thus a prime candidate for judicial resolution. Contrary to petitioners' arguments, this conclusion is supported by both United States Supreme Court jurisprudence and Colorado case law.
¶24 In Baker , the United States Supreme Court identified the characteristics of a nonjusticiable political question, explaining:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
369 U.S. at 217, 82 S.Ct. 691. But the meaningful utility of these characteristics has been questioned by well-respected legal scholars. See, e.g. , Erwin Chemerinsky, Federal Jurisdiction 153 (6th ed. 2007) (expressing the view that the Baker characteristics "seem useless in identifying what constitutes a political question," and observing that "most important constitutional provisions," including those that courts have never hesitated to interpret, "are written in broad, open-textured language and certainly do not include ‘judicially discoverable and manageable standards’ ").
¶25 Helpful or not, the Baker characteristics cannot be mechanically applied here because Colorado district courts, unlike their federal counterparts, are courts of general jurisdiction. Colo. Const. art. VI, § 9 ; Lobato v. State , 218 P.3d 358, 369–70 (Colo. 2009). This critical difference between federal and state judicial authority is widely recognized and has been noted by none other than Baker 's authoring justice. See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights , 90 Harv. L. Rev. 489, 501 (1977) ().
¶26 Even so, we have consistently considered the characteristics outlined in Baker in our previous forays into the realm of justiciability.7 And, importantly, mindful of those characteristics, we have found justiciable a constitutional question similar to the one we confront today. See Bledsoe , 810 P.2d at 206.
¶27 In Bledsoe , we were called upon to determine whether alleged violations of the "Give A Vote to Each Legislator" ("GAVEL") amendment to article V of the Colorado Constitution presented nonjusticiable political questions. Id. at 205. The GAVEL amendment "prohibit[ed] members of the General Assembly from committing themselves, or requiring other members to commit themselves, ‘through a vote in a party caucus or any other similar procedure[ ] to vote in favor of or against any bill ... or other measure or issue pending or proposed to be introduced in the general assembly.’ " Id. at 203 (quoting Colo. Const. art. V, § 22a ). The alleged violations of the GAVEL amendment in Bledsoe were related to voting commitments given by majority caucus members prior to the introduction of an appropriations bill into the General Assembly. Id. at 204.
¶28 Notably, like the reading requirement, the GAVEL amendment was aimed at ensuring the integrity of the enactment of bills. Compare Proceedings of the Constitutional Convention of 1875 725 (1907) ("To afford protection from hasty legislation, it is required that all bills ... shall be read on ... different days in each house before being passed") (emphasis added),8 and In re House Bill No. 250 , 26 Colo. 234, 57 P. 49, 50 (1899) (), with Legislative Council of the Colorado General Assembly, An Analysis of 1988 Ballot Proposals 21 (Aug. 16, 1988) [https://perma.cc/U2N3-G837] ). Our analysis in Bledsoe , then, is of particular relevance.
¶29 Evaluating the concerns raised by the Baker