Money & the Law: Bill-reading requirement can be stalling tactic - Colorado Springs Gazette

It probably won’t surprise you to learn that members of the minority party in the Colorado General Assembly, not unlike members of the minority party in the U.S. Congress, have been known to use stalling as a tactic to impede the passage of legislation they don’t like.

One tool facilitating this tactic in Colorado comes from Article V, Section 22, of the state constitution: “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.”

This section of the constitution was the focus of a recent (and unusual) decision by the Colorado Supreme Court in the case of Markwell v. Cooke. The case arose out of events occurring in the Colorado Senate on March 11, 2019. On that date, Republican Sen. John Cooke refused to join in a resolution to skip the reading of House Bill 19-1122, a bill to recodify (basically, renumber) Chapter 12 of the Colorado Revised Statutes dealing with professions and occupations. So, in the absence of a unanimous vote to dispense with the reading, reading had to occur and, well, House Bill 19-1122 was 2,023 pages long. (During Supreme Court oral arguments, Cooke’s lawyer admitted that Cooke’s motive was to stall other legislation.)

After Cooke’s refusal to waive the reading of the bill, two Senate staff members began the reading. But, after three-plus hours of this, the secretary of the Senate, Cindi Markwell (a Democrat), decided this was wasting precious legislative time. She therefore put five computers to work reading parts of the bill simultaneously, at a speed of 650 words a minute. As the Supreme Court majority stated in its opinion, what the computer reading produced was an incomprehensible “noisy mishmash.”

The next morning, March 12, Cooke filed a lawsuit asking a District Court judge to rule that the computer reading of the bill violated the constitution. After a hearing, the District Court judge agreed and issued an injunction, prohibiting the computer reading of House Bill 19-1122 (and, by implication, any other bill). The judge’s order went on to say Article V, Section 22 required that pending legislation must be read in “an intelligible and comprehensible manner, and at an understandable speed.” The Senate eventually complied with the judge’s order and the bill was passed. However, Cooke’s lawsuit marched on to the Supreme Court.

The Supreme Court, in a 4-3 decision, agreed with the District Court judge that the computer reading of House Bill 19-1122 did not satisfy the reading requirement in the constitution. The Supreme Court, however, also ruled that the District Court judge had gone too far in telling the Legislature what it had to do to comply with the constitution. As the opinion noted, under the doctrine of separation of powers, courts, except in the rarest of cases, can’t be telling a co-equal branch of government — the Legislature — how to conduct its own affairs. One of the dissenting justices added to this by saying, if a court can’t tell the Legislature what it must do, it additionally can’t tell the Legislature what it can’t do. That, however, is what the Supreme Court did in ruling that the computer reading of House Bill 19-1122 was unacceptable.

This dissenting justice also pointed out that the bill-reading requirement in Colorado’s Constitution (and the constitutions of several other states) has roots going all the way back to the 16th century, when many legislators were illiterate and printing was primitive. This dissenting justice additionally noted that, as recently as 2017, Colorado’s bill-reading requirement had been addressed by having a dozen staff members read separate portions of a bill simultaneously. Apparently, however, that did not lead to the filing of a lawsuit.

Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. You can contact him at moneylaw@jtflynn.com.

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Money & the Law: Bill-reading requirement can be stalling tactic - Colorado Springs Gazette
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