Colorado Common Cause v. Bledsoe

Justice LOHR

concurring in the judgment in part and dissenting in part:

The majority holds that the district court did not abuse its discretion when it dismissed Common Cause’s complaint for in-junctive relief against the caucus member legislators but that the court erred in dismissing the complaint for declaratory relief. I conclude that the district court’s dismissal of the entire complaint filed by Common Cause was correct, although I do not agree that the speech-or-debate clause provides the basis for the dismissal. I therefore concur in the judgment in part and dissent in part.

I.

I would hold that the GAVEL amendment, Colo. Const, art. V, § 22a, limits the legislative immunity provided by the speech-or-debate clause, Colo. Const, art. V, § 16. The GAVEL amendment and the speech-or-debate clause are coordinate constitutional provisions addressing the conduct of legislative activity. When several constitutional provisions concern the same subject, we must construe the provisions to harmonize with each other so far as possible. See de’Sha v. Reed, 194 Colo. 367, 371, 572 P.2d 821, 823 (1977). The speech- or-debate clause seeks to prevent interference with legitimate legislative activities and to shield legislators from the cost, inconvenience and distractions of a trial, see Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951), by limiting judicial inquiry into the legislative process, id. at 378, 71 S.Ct. at 789. GAVEL seeks to prevent abuses of the legislative process by prohibiting members of the general assembly from providing or receiving vote commitments during party caucuses and elsewhere. The goal is to promote floor debate so that the debate and vote on bills will reflect an exchange of ideas among different ideologies. See Legislative Council of the Colorado General Assembly, An Analysis of 1988 Ballot Proposals, Research Publ. No. 326, 22 (1988). To this end, GAVEL specifically regulates the conduct of legislative activity. This regulation generates tension with the speech-or-debate clause. To the extent that there is a conflict, GAVEL, the subsequently enacted constitutional amendment, takes precedence. de’Sha, 194 Colo. at 371, 572 P.2d at 823. Moreover, GAVEL specifically prohibits particular vote commitment activity, thereby superseding in part the speech-or-debate clause’s general protection of legislative activity. Id.

The complaint alleges conduct in violation of the GAVEL amendment; any legislative action resulting from such conduct is null and void. Colo. Const, art. V, § 22b. The validity of legislative action, including the enactment of statutes, therefore depends upon legislative compliance with GAVEL. Determination of such validity necessarily requires an inquiry into the caucus activity of the legislators. The trial court, however, ruled that the speech-or-debate clause conferred absolute immunity on legislators. Absolute immunity would prevent examination of legislative compliance with GAVEL. Accordingly, absolute immunity is incompatible with the purposes of GAVEL. The trial court therefore erred by dismissing the petitioners’ complaint on the basis that the speech-or-debate clause grants absolute immunity to legislators with respect to the vote commitment activity alleged in the complaint.

II.

The GAVEL amendment does not contain an enforcement mechanism or discuss specific remedies for violation of its provisions. Colo. Const, art. V, § 22b does provide that “[a]ny action taken in violation of [GAVEL] shall be null and void,” which suggests the availability of judicial invalidation of legis*213lation. However, Common Cause does not seek that remedy. Instead, it requests a declaration that the respondent legislators violated GAVEL and also an injunction against future violations. I believe these requested remedies are inappropriate under the facts alleged in the complaint.

A.

An injunction against future violations does not provide a suitable enforcement mechanism for GAVEL. Injunctions are an extraordinary remedy which the courts should employ sparingly. Compton v. Knuth, 117 Colo. 523, 527, 190 P.2d 117, 118-19 (1948). The injunctive remedy is an especially delicate matter when the courts seek to interfere with the legislative process, City of Louisville v. District Court, 190 Colo. 33, 37, 543 P.2d 67, 70 (1975), and raises serious concerns about the separation of powers. By issuing an injunction, the court constrains the manner by which the legislators may perform their duties; such constraints express a lack of respect due that coordinate branch of government. Cf. Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962) (factors governing the determination of whether a case presents a nonjusticiable political question). The prospective nature of in-junctive relief entangles the judiciary in legislative affairs to a far greater extent than retrospective review. Injunctions prohibiting conduct must be sufficiently precise to enable the enjoined party to conform its conduct to the injunction’s requirements. Colorado Springs Bd. of Realtors, Inc. v. State, 780 P.2d 494, 499 (Colo.1989). GAVEL proscribes only a narrow range of legislative conduct; however, this conduct resembles other legitimate legislative activity such as canvassing. Legislators might forego a significant range of constitutionally protected legislative activity in order to avoid violating an injunction. In this fashion injunctive relief may inhibit legitimate legislative activity, to the detriment of the public interest. Furthermore, an injunction will require judicial supervision of the legislative process, a continuing intrusion into that body’s constitutional autonomy. Judicial enforcement of an injunction, including contempt sanctions, poses a significant risk of disruption of legislative activity. Accordingly, injunctions prohibiting violations of GAVEL entail excessive judicial intervention into the legislative process and are therefore inappropriate.

B.

Contrary to the majority, I believe that this case is also inappropriate for declaratory relief. Declaratory judgment actions are intended “to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations. ...” § 13-51-102, 6A C.R.S. (1987). Community Tele-Communications v. Heather Corp., 677 P.2d 330, 334 (Colo. 1984). The tenor of the original complaint indicates that Common Cause sought declaratory judgment as a predicate to its claim for injunctive relief. Common Cause asserted past violations of the GAVEL amendment with respect to the appropriations and transportation bills. A declaration of past violations would support Common Cause’s assertion of need for injunc-tive relief to prevent future violations when the same legislative subjects arise. However, since injunctive relief is not an appropriate remedy under the facts of this case, the declaratory judgment serves no purpose. Common Cause did not request the invalidation of the appropriations bill, so a declaratory judgment on the validity of the legislators’ actions to provide a predicate for such relief is unnecessary or at least would be premature. Declaratory judgment should not be used to try a controversy piecemeal or try particular issues without settling the controversy. See Lane v. Page, 126 Colo. 560, 563, 251 P.2d 1078, 1080 (1952). A declaration about the alleged GAVEL violations, by itself, does not settle the controversy, prevent future violations, or invalidate legislation. The declaratory judgment will serve only as an advisory opinion. The court should refuse to grant a declaratory judgment because it will not resolve any judicially cognizable controversy. See Heron v. City and County of Denver, 159 Colo. 314, 316, 411 P.2d 314, 315 (1966); Lakewood Fire Pro*214tection Dist. v. City of Lakewood, 710 P.2d 1124, 1126 (Colo.App.1985). Thus, I believe declaratory judgment would be inappropriate based on the facts alleged and relief requested in the complaint.

ERICKSON, J., joins in Parts I and IIA of this concurrence.

KIRSHBAUM, J., joins in this concurrence and dissent.