By Jerry Kopel

6/16/06

 

A special legislative session might happen shortly to deal with immigration issues. One other issue is whether restrictions on the governor in calling a special session also apply to  the legislature calling itself back into session.

 

Article 5, Section 7 of the constitution states: "The general assembly shall meet at other times when convened in special session by the governor pursuant to section 9 of article IV of this constitution or by written request by two-thirds of the members of each house to the presiding office of each house to consider only subjects specified in such request."

 

Article 4, Section 9 restricts what happens at a special session called by the governor:

 

"The governor may, on extraordinary occasions convene the general assembly by proclamation, stating therein the purpose for which it is to assemble; but at such special session no business shall be transacted other than that specially named in the proclamation..."

 

Notice the difference: Extraordinary occasions only applies to the governor. "Subjects specified" (legislature) vs. "specially named" (governor).

 

What I am stating is that Article 4, Section 9 trumps what the governor can do, but not what the legislature can do.

 

The governor's power to call a special session was in the original constitution of 1876. The power of the legislature to call itself into special session did not occur until a constitutional amendment 98 years later, in the 1974 general election.

 

Senate Concurrent Resolution No. 1, by Sen. Joe Schieffelin (R) and Rep. John Buechner (R) amended Articles 4, 5, and 12 of the constitution. I was one of the co-sponsors.

 

This was a constitutional amendment put on the ballot by the legislature, so there was an opportunity to copy language inserted in 1876 regarding a call for a special session by the governor. The legislature chose NOT to do so: No "extraordinary occasion" and no "specially named".

 

The governor's  hand is pretty well tied by Supreme Court decisions since there have been many special sessions called by the governor after 1876. Like Goldilocks, the subject matter cannot be too broad or too specific. It has to be "just right", and that decision is eventually determined by the Supreme Court in litigation after the legislature acts on the "call".

 

If the legislature calls itself back into special session, the wiser approach would be to limit "subjects specified" to the same restrictions that presently apply to the governor.

 

But since the language of the two is different, and since the legislature has NEVER called itself into session, no one knows how the court will rule if the limitations on the governor are not applied to the legislature.

 

There is no limitation on the number of times the governor or the legislature can "call" a special session.

 

(Jerry Kopel served 22 years in the Colorado House.)