Month: October 2015

  • Old Supreme Court Windows Honor Ethnic and Racial Group History in Colorado

    by Melanie Pawlyszyn

    How often have you sat in the Old Supreme Court Chambers and wondered, “Who are those people in the windows?” As it turns out, each window honors persons who played a significant role in the history of various ethnic and racial groups in Colorado.

    The Heritage Windows on the north wall of the old Supreme Court chambers were a gift from the committee that organized the centennial celebration for Colorado in 1976 to honor four ethnic and racial groups – Hispanics, Native Americans, African Americans, and Chinese and Japanese. Members from each group designed the stained glass windows, and the Elysian Glass Company manufactured each window for about $6,000. The windows honoring the African American and Hispanic communities were presented to the state on January 7, 1977, and those honoring Native Americans and Chinese and Japanese communities were dedicated on February 18, 1977.

    Hispanics

    photo by Melanie Pawlyszyn
    photo by Melanie Pawlyszyn

    Don Miera y Pacheco (1721-1785), Father Francisco Atanasio Dominguez, and Father Silverstre Velez de Escalante
    Dominguez and Escalante were Franciscan monks who led an expedition through the uncharted West in 1776. The expedition’s cartographer, Don Miera y Pacheco, is the dominant figure in the window. Pacheco drew up maps and kept a detailed diary of the Dominguez-Escalante expedition that started in Santa Fe, New Mexico, and traveled up through southwestern Colorado to the Great Salt Lake in Utah, and southwest to Monterey, California. The expedition explored more unknown territory than Daniel Boone or Lewis and Clark, though it never met its objective of finding a new route from Santa Fe to Monterey.

    Carlotta Espinosa designed this window, located on the far left-hand side as you face into the Old Supreme Court Chambers.

    Native Americans

    photo by Melanie Pawlyszyn
    photo by Melanie Pawlyszyn

    Chief Jack House (1892-1971)
    The upper half of the window honors Chief Jack House, the last hereditary chief of the Ute Mountain Ute tribe. In his over 30 years of leadership, Chief Jack House worked to secure essential water rights for his tribe, fought for the tribe’s right of self-determination, pushed for improvements of their living conditions, and lobbied for their causes. He helped establish the tribal council, the Ute Mountain Tribal Office, and the blueprints for the tribal constitution.

    Norman Lansing of the Ute Mountain Ute tribe designed this portion of the window, located directly left of the center window.

    Chief Buckskin Charlie (1840-1936)
    The lower half of the window depicts Chief Buckskin Charlie, the last hereditary chief of the southern Ute tribe. Chief Buckskin Charlie, often called “Charlie Buck,” was known as a pacifist leader who mediated peaceful negotiations between the Native Americans of Colorado and the Native American Agency and arranged peace talks in Washington alongside his predecessor, Chief Ouray.

    Before becoming chief of the southern Ute tribe in 1880, Charlie Buck was stationed with the Federal troops at Fort Junior and was honorably discharged. As a Ute chief, he carried out Ute traditions and ceremonies and introduced new methods of farming, education, and health care to his people.

    Eugene Naranjo of the southern Ute tribe designed this portion of the window.

    photo by Melanie Pawlyszyn
    photo by Melanie Pawlyszyn

    Alexander Hunt and Chief Ouray
    The center window in the Chambers is not one of the Heritage Windows. It was a gift from a descendant of Alexander Hunt, the Fifth Territorial Governor of Colorado. Governor Hunt negotiated various peace treaties with Colorado’s Native American tribes, including the Ute Treaty of 1868 with Chief Ouray of the Ute Mountain Ute tribe. In the window, the two leaders share a peace pipe, a symbol of the efforts to establish peace between the white settlers of Colorado and the Native Americans.

    Senate Joint Resolution 76-32 authorized the installation of the window, which replaced a window portrait of Chief Justice Robert Wilbur Steele.

    Aunt Clara Brown
    photo by Melanie Pawlyszyn

    African Americans

    Aunt Clara Brown (1800-1882)
    Clara Brown was sold into slavery at the age of three and was married and gave birth to four children at age 18. She and her children were sold and separated in Kentucky. Brown was emancipated in 1856, after which she sought to find her children. She worked as a cook in St. Louis and then washed and cooked for 25 men to pay for her transport to Colorado in 1959, where the gold rush gave prospects of wealth.

    Brown settled in Central City, where her home became a hospital, hotel, and refuge for all. She helped organize Methodist Sunday school classes at the First Methodist Church in Central City as well as in Georgetown and Denver and aided other African Americans in making their way to the West with the money she earned. She also worked in various ways to help the miners of Central City.

    After saving up $10,000, Brown went back to Kentucky in 1866 to find her children. She found her daughters Margaret and Eliza Jane. She could not find her son Richard, and her third daughter Palina Ann had died at age three.

    Vernon Rowlette designed this window, located directly right of the center window in the Chambers.

    Chinese and Japanese

    photo by Melanie Pawlyszyn
    photo by Melanie Pawlyszyn

    Chin Lin Sou (1837-1894)
    The upper half of the window on the far right of the Chambers depicts Chin Lin Sou, a labor contractor responsible for bringing the first Chinese laborers to the United States for construction work. Chin Lin Sou, nicknamed “Willie Chin,” came to the United States from Canton, China, at age 22 to work on the Kansas Pacific Railroad. He supervised the work of Chinese laborers on the Central Pacific and Union Pacific railroads as well as over 300 Chinese miners in Gilpin County. Willie Chin was one of the founders of the Six Companies and the Chinese Trading and Insurance Companies, which sold supplies to his workers.

    In 1870, Willie Chin became the first mayor of Denver’s Chinatown, Hop Alley, which was razed in 1950 and no longer exists. He helped his people get jobs and establish businesses and defended them against tremendous hostility, including the anti-Chinese riot in Denver on October 30, 1880.

    Chen Ting-Shih designed the window.

    Naoichi Hokazono (1873-1927)
    The lower half of the window depicts Naoichi “Harry” Hokazono, a labor contractor who brought Japanese workers to build much of Colorado’s agriculture, mining, and construction industries. His first venture was to bring 70 Japanese laborers from Wyoming to cultivate sugar beets in Colorado. Eventually, he hired 2,000 men in agriculture, mining, and constructing dams and high-tension transmission lines.

    Hokazono came to San Francisco from Kyushu, Japan, at age 11, and arrived in Colorado in 1898 at age 25. He served as president of the Japanese Association of Colorado, the Japanese Businessmen’s Association, and a printing company that published a Japanese-language newspaper.

    The window was designed by Yuri Noda, a Denver resident who was born in Japan.

    Information in this article can be found in “Memorials and Art In and Around the Colorado State Capitol” by the Colorado Legislative Council (June 1992) and “Our Colorado Immortals in Stained Glass” by Elaine Abrams Clearfield (June 1986).

  • When is it the Government’s Speech: A Tale of Two Messages

    by Jery Payne

    Some folks in Gilbert, Arizona, wanted to use signs to advertise upcoming events and posted these signs on private property. The town had rules limiting the size of event signs and the times they could be posted. These signs were up too long, so the town’s sign police busted the sign folks. The citizens became indignant and took the town to court. The case was appealed all the way to the United States Supreme Court, who held that the town’s rules violated the First Amendment to the United States Constitution because the town had stricter rules for event signs than for other signs.

    Sandwich Board SignThe court reasoned that the sign police had to read the sign to know it was an event sign, so the rules were “content” based — that is, the rules were based on what the signs said. Although the town never intended to discriminate against a viewpoint and merely regulated the signs, these rules were unconstitutional.

    Some other folks in Texas wanted to use license plates to advertise their group and put these plates on their private vehicles. The state had rules requiring special license plates to be approved by a state board. The license plate police decided it didn’t like the message portrayed on the plates, so it did not approve them. The citizens became indignant and took the state to court. The case was appealed all the way to the United States Supreme Court, who held that these rules didn’t violate the First Amendment.

    The Court reasoned that it was okay for the license plate police to discriminate based on a viewpoint because they intended to control the content — that is, the license plate police made decisions based on what the plates said.

    How do we harmonize these two decisions? They were handed down by the same court in the same session. In the Gilbert case, the Court explained that a government “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” In the Texas case, the court explained that Texas may discriminate based on viewpoint because “Texas maintains direct control over the messages conveyed on its specialty plates.” Isn’t this a contradiction?

    In a part of the opinion that consoles Gilbert for losing the case, the Court explains that “on public property, the Town may go a long way towards entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner.” But if Gilbert can’t even control content on public property, why can Texas control content on license plates affixed to private vehicles?

    The difference between these polar-opposite decisions is the notion that license plates are government speech and that the government may enter the public forum and advocate for its ideals. In which case, the Court held it shouldn’t be hampered by not being able to take sides.

    Some of you may be wondering how a private group trying to get a license plate results in government speech. Who is really advocating under these circumstances—the private group or the government? Among the special license plates are these slogans:

    • Get it Sold with RE/MAX
    • I’d Rather Be Golfing
    • University of Oklahoma

    The dissent pointed out it seemed a little strange to argue that the State of Texas had decided that RE/MAX was their realtor of choice or that it’s better to be golfing than working or even playing football. Speaking of football, it may be well-nigh treason in the Lone Star State to endorse the University of Oklahoma given its deep rivalry with the University of Texas. To the dissent, special license plates display the speech of the car owners who choose them, not of Texas.2012_Texas_License_Plate

    The majority, however, believed that the messages on license plates are different than other speech, because putting a message on a license plate implies that the state endorses it: “[A] person who displays a message on a Texas license plate likely intends to convey to the public that the state endorsed the message. If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate.” Although the speech itself originates from citizens, putting it on a license plate implies that the government endorses it.

    It’s not often that the Supreme Court decides cases based on factual distinctions. And given that they don’t find facts, it’s even rarer that the Court would overturn two lower decisions based on the facts. But I don’t see how else you can understand this decision. The facts of this case are in a grey area; special license plates may be reasonably seen both as private speech and government speech. So a line had to be drawn, and the Court drew it just this side of license plates because license plates are issued by the government. And people may think the government is endorsing the message on the plate.

  • Bill Requests – Fact or Fiction?

    by Patti Dahlberg

    The 2016 legislative session is only about two and a half months away, and that means the bill drafting season is quickly heating up. This seems like a good time to address a few items regarding bills and bill requests that may have gotten a little “lost in translation” here and there over the years. . .

    fact or fictionThe legislator who submits the first bill request on a subject gets first ‘dibs’ on bill requests in that subject area and can prevent other legislators from submitting a similar bill request.
    Fiction. The Office of Legislative Legal Services (OLLS) records each bill request into a bill tracking system as a legislator submits it and then assigns the request to a drafter according to the subject of the request. The OLLS attempts to assign seemingly similar bill requests to the same drafter. This helps in identifying potentially duplicate bill requests, which in turn helps the office avoid duplicating bill drafting efforts by different drafters. If potential bill duplicates are identified, the OLLS will also try to notify the affected sponsors so that sponsors can decide whether they wish to introduce duplicate bills. But the office will not refuse a bill request on the grounds that it may be the same as another legislator’s request.

    Because of confidentiality concerns, the sponsors of the duplicate bill requests will need to agree to allow the drafter to share some information about their bill requests during this notification process. See Ask OLLS column “What happens if I make the same bill request as another legislator?”, posted on September 22, 2011, for more information on duplicate bill requests.

    When a legislator puts in a bill request, he or she is also “pulling a bill title” or otherwise deciding on the bill’s final title.
    Fiction. The OLLS considers the information it receives at the time of the bill request to be a starting point for the bill request. This information enables the Office to describe the subject of the bill request in order to enter it into the bill tracking database, assign a tracking number, and assign a drafter. Practicality dictates that the bill request will be referred to in some manner during the drafting process, but it is important for all to understand that whatever a bill is referred to during drafting is not the bill’s title. A bill’s title is the official, legal title of the bill, which must be a single subject. The drafter and bill sponsor will make the bill title decision later in the drafting process to ensure that the title accurately reflects the contents of the introduced bill. See Ask OLLS column “Why is the title of a bill so important?”, posted October 13, 2011, for more details.

    Being a joint prime sponsor on a bill will only count as half a bill request.
    Fiction. Joint prime (or co-prime) sponsorship occurs when two legislators in the same house decide to jointly and equally sponsor a bill as it moves through the legislative process in that house. On the bill itself, joint prime sponsorship is indicated by the word “and” between the first two names listed on the bill. The rules concerning joint prime sponsorship are similar in the House (House Rule 27A) and Senate (Senate Rule 24A) and both state:

    (3) For purposes of any limitations on the number of bills that a member may request or introduce, bills with joint prime sponsors shall be counted as being requested and sponsored by both the prime sponsor and the joint prime sponsor. If either the prime sponsor or the joint prime sponsor has already requested or introduced the total number of bills authorized within any bill limitation, such sponsor shall obtain permission from the delayed bill committee to exceed such limits prior to requesting or introducing such a bill. (Emphasis added)

    In other words, the joint prime sponsored bill counts as one of each legislator’s five bill requests. For additional information regarding joint prime sponsorship, see “To Prime or to Joint Prime”, posted December 22, 2011.

    Are there any facts regarding bill requests?

    Facts2As a matter of fact, yes!
    • The first bill request deadline is December 1. The second bill request deadline is the seventh day of session — Tuesday, January 19, for the 2016 Session.
    • Joint Rule 24(b)(1)(A) limits legislators to five bill requests each session. These five bill requests are in addition to any appropriation, committee-approved, or sunset bill requests that a legislator may choose to carry. A legislator can also ask permission from the House or Senate Committee on Delayed Bills to submit additional bill requests or to waive a bill request deadline.
    • Because Joint Rule 24(b)(1)(A) allows a legislator to submit only two bill requests after the December deadline, legislators are encouraged to submit more than three bill requests before that deadline. Submitting more than three requests by Dec. 1 may allow the legislator the flexibility to replace a bill request if he or she later withdraws a request. If a legislator submits fewer than three bill requests by the December deadline, he or she forfeits those requests.
    • To request the five bills allowed by rule, a legislator must meet the bill request deadlines listed in Joint Rule 23(a)(1). Basically, three requests by the December deadline and two requests in by the January deadline.

    For additional information on making and keeping bill requests, see “Bill Requests – Making and keeping the five allowed by rule”, posted September 1, 2011. Please disregard any references in the 9/1/11 article to specific session dates.

    Bill Requests 2

  • What Happens to a Statute Declared to Be Unconstitutional

    by Jennifer Gilroy and Michele Brown

    UnconstitutionalA librarian at the Sturm College of Law (at the University of Denver) recently called our office to ask what happens to a statute when it is declared by an appellate court to be unconstitutional. Perhaps he figured the revisor of statutes would simply and unceremoniously strike it from the books. Or maybe he thought that the legislature would automatically know and run a bill to repeal the offending provision of law. But it doesn’t exactly work that way. In fact, Colorado has several “unconstitutional” laws still on the books. Say what?

    To understand the reason for this phenomenon, it’s necessary to go back to basic 8th grade American Government class. State government, like the federal government, is split into three branches: The executive branch, the judicial branch, and the legislative branch. One cannot do the work of the others. While the executive branch may enforce the law and the judicial branch interpret the law, only the legislative branch may write the law or, in this case, repeal it. Therefore, despite the fact that the highest court in the land may have determined that a Colorado statute (or a section of the state constitution) is unconstitutional, only the legislature may take the statute off the books by bill. The constitution may only be amended—even if the amendment is to remove a provision declared to be unconstitutional—if the change is approved by a majority of voters voting on a ballot measure or on a measure referred to the voters by the General Assembly. The court cannot require the repeal.

    Legislators in the Colorado General Assembly may introduce only five bills during each regular legislative session. (See Joint Rule 24 (b)(1)(A)). As a result, many legislators who have so many things they want to accomplish during their brief, term-limited tenure at the state capitol do not want to “spend” one of their five bills on a housekeeping matter, as it were. Are you starting to see why some of these laws linger on the books long after they should? In fact, in Colorado dozens of statutory and constitutional provisions that have been held to be unconstitutional still linger on the books.

    How does the average reader of our laws, then, know whether a statute (or constitutional provision) is really “good law?” The General Assembly’s legal staff at the Office of Legislative Legal Services vigilantly reads all of the appellate opinions issued by the Colorado Court of Appeals, the Colorado Supreme Court, the United States District Court for the 10th Circuit, and the United States Supreme Court looking for opinions construing Colorado’s law and, in particular, opinions declaring any provision of Colorado law unconstitutional. The Office’s legislative lawyers and legislative editors write brief summaries of every court’s holding that interprets a provision of Colorado law. These “annotations,” as they are called, are then published in the official Colorado Revised Statutes (also found online) immediately following the section of law that is the subject of the court’s ruling.

    If the court has actually determined that the provision of law is unconstitutional, the Legal Services staff will include a special editor’s note to that effect, which the reader will see immediately following the source note at the end of the section of law. The editor’s note notifies the reader that this provision has been held to be unconstitutional and provides the citation to the case so construing the law. The staff will also include an editor’s note if, for example, the U.S. Supreme Court has determined another state’s statute to be unconstitutional and that state’s statute is substantially similar to a Colorado statute. [For an example, see the editor’s note regarding an Arizona statute after §18-1.3-1201]

    But unless it’s reported in the news, how does a legislator know that one of Colorado’s laws has been found to be unconstitutional? Well, in addition to writing annotations and editor’s notes regarding the court’s holding, the Legal Services staff also provides the members of the state legislature with a quarterly report of recent judicial opinions of note. The Notice of Judicial Opinions provides the members with information about recently issued appellate court opinions construing Colorado law and, if any opinion addresses the constitutionality of a state law, it is highlighted in the report. From this report, members of the legislature are notified that an appellate court has determined that a law on the books is unconstitutional and is therefore “ripe” for repeal. Finally, Legal Services staff also tweets about significant court rulings when they are released.

    The decision whether to sponsor a bill that would repeal an unconstitutional law is ultimately the decision of each individual legislator. Nevertheless, so long as an unconstitutional law remains on the books, the editor’s notes and the annotations will notify the reader of the court’s decision.

  • Court Rules No Public Aid to Sectarian Schools…for Now

    by Brita Darling

    The Colorado Supreme Court added another case to the growing body of school choice law across the nation with its recent decision in Taxpayers for Public Education v. Douglas County School District. In a divided decision, the Court reinstated a permanent injunction against the Douglas County School District’s Choice Scholarship Pilot Program (the CSP), reversing a big win for the CSP in the Colorado Court of Appeals.

    As explained in a previous Legisource post, the CSP was designed to distribute tuition scholarships, using state per pupil funding, to students in elementary, middle, and high school who attend qualifying private schools. The majority of the schools are religious, and in the 2011-12 school year, 93% of scholarship recipients were enrolled in religious schools.

    On appeal to the Colorado Supreme Court, the Petitioners (Taxpayers) alleged the CSP violated both the “Public School Finance Act of 1994” (the Act) and the Colorado Constitution.

    With respect to the constitutional claims, the case ultimately turned on the interpretation of article IX, section 7 of the Colorado Constitution (section 7) and the definition of some key terms in that section. Section 7 states, in part:

    Neither the general assembly, nor any . . . school district. . . shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school . . . controlled by any church or sectarian denominations whatsoever . . . .

    What does “sectarian” mean in section 7? Chief Justice Rice’s opinion leaves no doubt that the term “sectarian” is synonymous with “religious”–a conclusion, the Chief Justice wrote, that is reinforced by its pairing with the word “church” in two places in the text of the constitutional provision. “Therefore,” she wrote, “this stark constitutional provision makes one thing clear: A school district may not aid religious schools.”

    According to Chief Justice Rice’s opinion, the CSP provides aid to religious schools by essentially functioning as a “recruitment program, teaming with various religious schools . . . and encouraging students to attend those schools via the inducement of scholarships.” While the aid checks go to parents who then endorse them to the religious schools, “section 7’s prohibitions are not limited to direct funding.” Given that private schools rely on students’ attendance and corresponding tuition to support and sustain the school, “the CSP’s facilitation of such attendance necessarily constitutes aid ‘to support and sustain’ those schools.”

    In her dissenting opinion, Justice Eid, joined by Justices Coats and Boatright, argues that federal First Amendment Establishment Clause cases, including Zelman v. Simmons-Harris and the Court’s own decision in Americans United for Separation of Church & State Fund, Inc., v. State dictate a different result in this case.

    In Zelman, the U.S. Supreme Court recognized that, for purposes of the federal Establishment Clause, the “circuit between government and religion has been broken” when the aid reaches religious schools “only as a result of the genuine and independent choices of private individuals.” Moreover, the dissent argues, in Americans United, the Colorado Supreme Court upheld a program under section 7 that awards grants to college students who attend private sectarian higher education institutions. And, the dissent cautions, a ruling that the CSP violates section 7 calls into question the legality of numerous other public-private partnerships in the state that indirectly or incidentally benefit sectarian societies or churches.

    However, of greater concern to the dissent is the Court’s refusal to consider the constitutionality of section 7 as a so-called “Blaine amendment.” Named after James Blaine, a 19th century Speaker of the U.S. House of Representatives from Maine, “Blaine amendments” prohibit aid to sectarian schools. Although Congress defeated the actual Blaine amendment, which he proposed to the federal constitution, similar language made its way into approximately three dozen state constitutions in the latter part of the 19th century.

    Critics argue that these amendments were motivated by anti-Catholic bigotry in an effort to prohibit tax fund assistance to Catholic schools. Against the backdrop of federal constitutional law generally, the dissent argues that there are circumstances that require a court to “go behind the words” of the constitutional provision, and the religious animus behind section 7 is one of those circumstances.

    Whether these state constitutional provisions are in fact borne solely from anti-Catholic sentiment is a question of significant study and disagreement among public school historians. Many of the state provisions predate Blaine’s amendment and are seen as strengthening the separation of church and state, thereby ameliorating volatile religious issues of the day. Chief Justice Rice, however, declined to “wade into the history of section 7’s adoption and declare that the framers created section 7 in a vulgar display of anti-Catholic animus.” Instead, Rice opted to declare and enforce section 7 as written, finding its language “plain” and its meaning “clear.”

    With respect to the statutory claims made by the Taxpayers, a majority of the Court held that there was no private right of action to sue under the Act and that the doctrine of “taxpayer standing” could not be employed to create such a right.

    Justice Marquez, the lone dissenter, could perceive “no principled basis in our case law to limit taxpayer standing” and would have reinstated the injunction on statutory grounds. For this reason, she did not reach a decision on the Taxpayers’ constitutional claims, thereby setting the stage for the constitutional issues to play out in the future.

    If you’re keeping score, Chief Justice Rice’s en banc opinion has a vote from Justice Marquez as to the judgment only—reinstating the permanent injunction against the CSP. Along with Justice Hobbs—who has since retired and been replaced by Justice Gabriel—and Justice Hood, that’s only three votes in favor of the Court’s holding that the CSP violates article IX, section 7 of the Colorado Constitution. Lined up on the other side are also three votes: Justice Eid, with Justices Coats and Boatright joining in the dissent.

    This means the Court’s interpretation of the constitutional prohibition on aid to sectarian schools is persuasive but not binding authority. The constitutionality of the CSP is resolved, but there is clearly a deep divide in the Colorado Supreme Court with respect to the interpretation of section 7, and it is difficult to predict how the Court may rule on any future program that allows public money to be paid to a sectarian school.

    In response to the decision, the Douglas County School District is planning to rework and reinstate the CSP in conformance with the decision. But it will also file a petition for certiorari asking the U.S. Supreme Court to review the Colorado Supreme Court’s decision. The District will likely ask the highest court in the land to strike down section 7 because it is a “Blaine amendment” and, the District argues, repugnant to the First Amendment of the U.S. Constitution.