Markwell v. Cooke

Decision Date15 March 2021
Docket NumberSupreme Court Case No. 20SC585
Parties Cindi MARKWELL, Secretary of the Senate; and Leroy M. Garcia, Jr., President of the Senate, Petitioners, v. John B. COOKE, Senator; Robert S. Gardner, Senator; and Chris Holbert, Senate Minority Leader, Respondents.
CourtColorado Supreme Court

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

JUSTICE SAMOUR delivered the Opinion of the Court.

¶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.

I. Facts and Procedural History

¶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


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    • United States
    • Colorado Court of Appeals
    • November 10, 2021
    ...Saine and Williams have standing.¶ 5 We hold, largely on the basis of the Colorado Supreme Court's recent decision in Markwell v. Cooke , 2021 CO 17, 482 P.3d 422, that the plaintiffs’ challenge to the Red Flag law under the Reading Clause doesn't present a nonjusticiable political question......
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    • Colorado Court of Appeals
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    ...executive branch, we must tread lightly to avoid the potential separation of powers concerns voiced by the district court. See Markwell v. Cooke , 2021 CO 17, ¶¶ 3-4, 482 P.3d 422. And we certainly understand the district court's reluctance to interfere with the "statutorily mandated duties......
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    • United States
    • Colorado Bar Association Colorado Lawyer No. 50-8, September 2021
    • Invalid date
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