Colorado LegiSource

An informational and educational resource for the Colorado General Assembly by the Office of Legislative Legal Services.

Month: September 2015

  • Supreme Court Uses Negative Factor to Provide Tutorial on Constitutional Interpretation

    by Julie Pelegrin

    This week, the Colorado Supreme Court handed down its opinion in Dwyer v. State of Colorado, holding that the negative factor, which is applied in calculating funding for school districts, does not violate section 17 of article IX of the Colorado constitution – commonly referred to as Amendment 23. Reviewing the Dwyer opinion presents an excellent opportunity to observe some of the presumptions and rules of statutory and constitutional interpretation in action.

    Facts and Issue
    For a discussion of the facts and issues in the Dwyer case, see this LegiSource article posted last April. For now, suffice it to say that in 2010, the General Assembly created the negative factor, which reduces school district funding to ensure that the state’s funding responsibility for public P-12 education doesn’t exceed the state’s available resources. In 2014, a group of parents, school districts, and education organizations sued the state claiming that the negative factor violates Amendment 23 which requires annual minimum increases to “the statewide base per pupil funding, as defined by the Public School Finance Act of 1994, article 54 of title 22, Colorado Revised Statutes….”

    gavel 5-8The persons suing the state – we’ll call them the parents – claimed that the negative factor that the state imposes violates Amendment 23 because, when the amendment refers to “statewide base per pupil funding,” it really means the total funding for public education. When Amendment 23 passed, applying the formula to a higher base automatically resulted in an increase in the total funding. So that’s what the voters must have intended. With the negative factor, however, even though the base increases by inflation, the amount of overall funding for public education does not increase by inflation.

    The state argued that it has fully complied with the requirements of Amendment 23. When the amendment refers to “statewide base per pupil funding,” that’s what it means. And the state has increased the statewide base per pupil funding by at least the required amount every year since Amendment 23 passed.

    Chief Justice Nancy Rice, writing for the Court, summed up the issue like this:

    Legally speaking…Plaintiffs’ challenge to the negative factor presents a surprisingly straightforward question of constitutional interpretation. Quite simply, this case is about one thing: the meaning of the term “base.”

    Statutes presumed constitutional: §2-4-201, C.R.S.
    The opinion starts with the bedrock presumption that the statute that creates the negative factor is constitutional, and a person who claims otherwise must prove it beyond a reasonable doubt. Avid LegiSource followers may recall our discussion of the presumption of constitutionality in an article published earlier this summer.

    Plain meaning rule
    The Court then moved straight to the most commonly applied rule of statutory construction: The plain meaning rule.

    As explained in a previous LegiSource article, the plain meaning rule says that a court must give words their ordinary and popular meaning, and if the language of a statute – or in this case a constitutional provision – is clear and unambiguous, then it must be enforced as written. The Court also recognized that, just as legislators are presumed to know the current state of the law when they vote to change it, voters who vote for an initiative “are presumed to know the existing law at the time they amend or clarify that law.”

    The Court then held that Amendment 23 requires increases only “to statewide base per pupil funding, not total per pupil funding. We know that this is what Amendment 23 means, because this is exactly what Amendment 23 says.” (Emphasis in the original). Having found that Amendment 23 very clearly and intentionally uses the phrase “statewide base per pupil funding,” as defined by the Public School Finance Act of 1994, the Court refused to consider whether the voters actually intended to require annual increases to total funding for public education, deciding that “[i]f voters had wished to increase ‘total’ per pupil funding rather than ‘base’ per pupil funding, they would have said so.”

    The parents argued that the explanation of Amendment 23 in the 2000 Blue Book – the explanation of ballot measures prepared for voters by the Legislative Council – suggests that voters intended to ensure an annual increase in the total funding for public education. But the Court said that “only where the amendment’s language ‘is susceptible to multiple interpretations’ do we look beyond it to ascertain the voters’ intent.” Since the Court found that the language can be interpreted only one way, it did not consider any evidence of voter intent.

    In the alternative, the parents argued that the state has not in reality increased the statewide base per pupil funding amount as required by the plain meaning of Amendment 23. The parents claimed that the actual dollar amount set in statute for statewide base per pupil funding is meaningless because the negative factor actually reduces the statewide base per pupil funding. The parents provided a complicated mathematical demonstration to support their argument. But, the Court found the mathematical argument to be a “red herring,” holding that “the result of the reduction – that is, whether the State has reduced any district’s per pupil funding below the base level set by Amendment 23 – is all that matters.” (Emphasis in original). And the undisputed facts show that, in each year since the General Assembly created the negative factor, each school district received a per pupil amount that was greater than the statewide base per pupil funding amount set for that year.

    Court must avoid an interpretation that has an absurd result
    The parents also raised another standard rule of constitutional interpretation: Implementation of a constitutional provision is intended to be just and reasonable, and an unjust, absurd, or unreasonable result should be avoided when construing a constitutional provision. The parents argued that interpreting Amendment 23 to require an increase in statewide base per pupil funding but to allow a decrease in total education funding produces an absurd result.

    But the Court found that

    …it was perfectly rational, not absurd, for voters to insist that the State annually increase base per pupil funding (which is uniform across all school districts) while simultaneously affording the General Assembly discretion to modify factor funding (which is specific to each individual district).

    Conclusion: Still subject to interpretation?
    Having applied the standard principles of constitutional interpretation and interpreted the term “statewide base per pupil funding” according to its plain and statutorily defined meaning, the Court held that “the negative factor has not reduced the base below its constitutional minimum and thus does not violate Amendment 23.” And reading the Court’s opinion suggests that the rules of statutory and constitutional interpretation are clear and easily applied.

    But, remember, the Court’s holding was a 4-3 decision. Three of the justices who applied the rules of statutory and constitutional interpretation decided that the meaning of Amendment 23 was not all that plain and that the parents should be able to present their arguments at trial.

    It appears that the rules of interpretation are subject to…interpretation.


    Correction, Oct. 6, 2015: The headline of this article was changed for clarity.

  • The Uniform Law Process Takes its Time

    by Patti Dahlberg and Thomas Morris

    Editor’s Note: This article is the second in a series on the Uniform Law Commission. The first article was posted on August 6, 2015.

    The Uniform Law Commission (ULC), formerly known as the National Conference of Commissioners on Uniform State Laws (NCCUSL), was created as an offshoot of the American Bar Association in 1892. Since its inception, ULC commissioners have drafted more than 300 uniform and model acts. The ULC process is intentionally deliberative and open and designed to include many opportunities to question and discuss each proposed law — long before the law is considered ready for proposal to state legislatures across the country.

    The ULC’s procedures are meant to ensure the meticulous and transparent consideration of each uniform and model act. Generally, each uniform and model act requires at least four years of development before the ULC adopts it, and it is not unusual for the work to take longer. After a proposal is studied for at least a year and approved for drafting, a Drafting Committee spends at least one year, and often two years, drafting and redrafting. Then the full ULC must consider the draft at a minimum of two annual meetings. The ULC draws on its commissioners’ expertise throughout the drafting process and welcomes input from legal experts, advisors, and observers representing the views of other legal organizations or interests.

    The ULC process
    The process for developing uniform and model acts starts with the ULC Scope and Program committee, which considers proposals and suggestions for new uniform or model acts from a variety of sources. Past sources have included bar associations, state government entities, private interest groups, uniform law commissioners, and private individuals. The Committee on Scope and Program may assign a suggested topic to a Study Committee, which then researches, reviews, and reports back on the proposal. The Committee on Scope and Program reviews all Study Committee recommendations and then makes final recommendations to the ULC’s Executive Committee regarding which proposals may be desirable and feasible to become uniform or model acts.

    If the Executive Committee approves a recommendation to create or amend a uniform or model act, a Drafting Committee is formed from the roughly 400 ULC commissioners from around the country and a reporter-drafter – an expert in the field – is hired to assist the committee. In addition, advisors from the American Bar Association and other participating observers are solicited to assist every Drafting Committee.

    Each draft act receives a minimum of two years of consideration. Drafting Committees meet throughout that period to use the expertise of the state-appointed commissioners, stakeholders, and other legal experts and observers. The Drafting Committee rewrites and reconsiders the draft as often as needed before the committee decides to bring the draft to the annual meeting of commissioners. Tentative drafts are not submitted to the entire ULC until they have received extensive committee consideration.

    How does an act receive final ULC approval?
    Draft acts are submitted for initial debate by the entire ULC at one of its annual conferences, usually held in July. Each act must be considered section by section, at no fewer than two annual meetings, by all commissioners sitting as a Committee of the Whole. With hundreds of trained eyes probing every concept and word, few drafts leave an annual meeting in the same form as initially presented.

    Uniform statement of policy-1Once the Committee of the Whole approves an act, it still must pass a “vote by the states” to be officially approved as a uniform or model act. Each of the 53 state and territorial delegations polls its members and then casts one vote per delegation. To pass this vote, the proposed act must be approved by either 20 delegations or a majority of the states and territories present at the conference, whichever is greater.

    Once the act passes the final vote of the states, the act is considered finalized and ready for consideration by the states and territories. The ULC urges legislatures to adopt a uniform act exactly as written to promote uniformity in the law among the jurisdictions choosing to adopt the act. Model acts, however, are designed to serve as guidelines for legislation that states and territories can borrow from or adapt to suit their individual needs and conditions.

    In addition to legislatures, the ULC usually presents ULC-approved acts to the House of Delegates of the American Bar Association for its endorsement.

    ULC information about uniform acts, drafting projects, committees, and meetings and legislation information is available on the ULC website.

    For information on Colorado’s ULC connection, visit the Colorado Commission on Uniform State Laws (CCUSL) website.

    The CCUSL is scheduled to meet on October 20, 2015, to continue discussing potential legislation for the 2016 session. CCUSL meeting schedules and agendas are available on the CCUSL website.

  • An Update on Special License Plates

    By Jery Payne

    Editor’s note: This article is an update to “So You Want A New Special License Plate,” posted September 15, 2011.

    An issue emerged during the 2014 legislative session. Some legislators — of both parties — began to question whether fund-raising special license plates violate section 25 of article V of the Colorado Constitution:

          Section 25. Special legislation prohibited. The general assembly shall not pass local or special laws in any of the following enumerated cases, that is to say; … granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever. …

    This prohibits something that is commonly called “special legislation,” which is legislation that gives a named person or group a special right that other groups don’t have. Now, laws reward and punish people all the time, but the law is considered fair if people have an opportunity to enter or exit the rewarded or punished group. For example, people who graduate from medical school are eligible for the reward of a license to practice medicine. Although not everybody can get into medical school, the law doesn’t make that decision, so we say that the group isn’t closed. It’s up to the person to figure out how to get into the group. Imagine, if instead, doctors were licensed breast cancer plateonly by being named in a bill. A lot of medical-school graduates might never be licensed, so we would say the group is closed.

    Arguably, fund-raising special license plates violate the rule against special legislation. Most of these plates require a person to make a donation to a group — usually a charity — before the state will issue the plate. In return, the charity gives the donor a receipt. To get the plate, a person must show this receipt. Otherwise, the state won’t issue the plate.

    The issue is that the statute typically names a specific group. Other charities might help the same folks and have the same qualifications, but they can’t receive plate donations unless they get a bill passed also.

    Originally, legislators tried to avoid this issue by not having the state collect the money. But other legislators began to question whether this really avoids the issue. The group is still closed, they argue, so it doesn’t matter ifdonate life the state touches the money.

    Now, we don’t actually have any case law that deals specifically with this issue. So until a court rules on this issue, we can’t be sure if these plate statutes would be overturned. But quite a few legislators have said they will vote against any license-plate bill that specifically names a group.

    There is, however, a way to avoid this issue altogether: Don’t name the group. Instead, describe the characteristics that make the group deserving of donations. This approach was used last year in House Bill 15-1313 to describe a group that is dedicated to helping the Rocky Mountain National Park:

          42-3-249. Special plate – Rocky Mountain National Park. (3) (a) At least once every five years, the department shall designate an organization to qualify applicants to be issued the Rocky Mountain National Park license plate. The organization must:

    (I) Be based in Colorado;
    (II) Have been in existence for at least ten years;
    (III) Manage a conservation program for the benefit of the park;
    (IV) Help promote the stewardship of the park;
    (V) Fund trail building and maintenance within the park;
    (VI) Provide interns or volunteers to staff visitor centers or deliver education programs to visitors; and
    (VII) Have provided at least five hundred thousand dollars’ worth of support annually to the park for the last five years.

    This approach may avoid trouble.

     

  • Emily Griffith: Our Lady of Education

    by Darren Thornberry

    It is said that Emily Griffith winks at passersby from her stained glass window outside the Old Supreme Court Chambers. Who knew the pensive lady in purple had a playful side!

    Emily Griffith Stained Glass Window
    Courtesy of Kristal Kraft

    Emily Griffith made indelible contributions to education in Colorado, founded the Opportunity School in downtown Denver, and is beloved to this day for her work with adult and low-income students. In acknowledgement, Senate Resolution 16 adopted during the 1974 session and Senate Resolution 12 adopted during the 1975 session honored Emily Griffith by dedicating a stained glass window portrait of her, which hung in the Senate until 1985.

    It was decided that year to honor longtime Colorado legislator Ruth Stockton with a stained glass window in the Senate. To make space for it, a group of senators chose to move the Griffith window to its current location. In 2000, Mayor Wellington Webb honored Griffith with a posthumous Millennium Award, honoring individuals and organizations that have made significant and lasting contributions to the City of Denver since its founding.

    Though the year of her birth is disputed*, Emily Griffith was born in Cincinnati, Ohio, the eldest of four children. By age 14, she was teaching in a sod schoolhouse in Broken Bow, Nebraska. She soon learned that many of her students’ immigrant parents could neither read nor write in English and didn’t know how to manage their money. These problems struck a chord in the young educator and led her to the idea of a school for adults with a flexible schedule and a wide variety of subjects. In 1895, the Griffith family moved to Denver, and Emily was hired by Denver Public Schools. She taught as both a substitute and full-time teacher and in 1904 became the Deputy State Superintendent of Schools, a position she held for six years.

    In 1915, Griffith shared her hopes for a school with Denver Post writer Frances “Pinky” Wayne, who immediately began to write about it. Within a matter of months, the Denver Board of Education gave Griffith the condemned Longfellow School at 13th and Welton streets. The Opportunity School had a home, and Griffith was there to greet 1,400 students on opening day – Sept. 9, 1916. English, typing, and telegraphy were among the free classes available in those days when the school was open five days a week, 13 hours a day. Griffith was a caring educator, giving away food and money for the streetcar and visiting sick students.

    The function of the school has changed to meet the needs of the public over the years. In World War I, the school Emily Griffith Teachingtrained soldiers and civilians alike. In World War II, for a time, it operated around the clock, training more than 24,000 people in defense work. These days, the renamed Emily Griffith Technical College serves 10,000 students, day and night, with programs ranging from Culinary Arts to Sheetmetal Worker Apprenticeship. The school has assisted more than 1.6 million students in reaching their educational goals since its inception.

    Emily Griffith retired from Denver Public Schools in 1933. Tragically, she and her invalid sister, Florence, were found shot to death at their cabin in Pinecliffe, Co., in June 1947. An associate, Fred Lundy, who committed suicide a few weeks later, has long been suspected in their murders. Still, what really happened remains a mystery.

    Griffith’s legacy of helping people, regardless of age, race, or education level, is honored by the 150 instructors who work at her school today. In addition to being commemorated in stained glass, Griffith is seen in the “Women’s Gold” tapestry, which honors 19 pioneering Colorado women, on the Capitol’s first floor.

    * “Our Colorado Immortals in Stained Glass” by Elaine Abrams Clearfield lists Griffith’s birth year as 1880, Emilygriffith.edu states she was born “in the 1860s,” and Historycolorado.org shows her birth year as 1868.