Colorado LegiSource

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

Author: olls

  • The Committee on Legal Services

    by Patti Dahlberg

    This week LegiSource continues its series on the statutory committees that oversee the legislative staff agencies. So far the series has looked at the Legislative Council and the Audit Committee. This week, we review the history and duties of the Committee on Legal Services.

    The Committee on Legal Services is one of four joint “standing” or year-round legislative committees of the Colorado General Assembly charged with the oversight of a legislative staff agency.  The Committee on Legal Services has oversight responsibilities regarding review of executive branch agency rules, legislation review, publication of the Colorado Revised Statutes, and the general operations of the Office of Legislative Legal Services. In addition, the Committee also introduces several key statutorily required bills related to its oversight responsibilities and key responsibilities regarding state government.

    The Office of Legislative Legal Services (OLLS) and the Committee on Legal Services (Committee) were created in 1968 in Senate Bill 1 – an act “Concerning the Administrative Reorganization of State Government.” Section 178 of the bill established a Legislative Drafting Office as part of the legislative department “in order to promote the careful consideration of bills before their presentation to the general assembly by making the best technical advice and information readily available to legislators . . .”.  Prior to this date, employees of the attorney general’s office in the executive branch drafted the bills. Although renamed, repealed, and reenacted, the OLLS and its purpose remains the same. [Section 2-3-501, Colorado Revised Statutes (C.R.S.)]

    The General Assembly created the Committee, originally called the Legislative Drafting Committee, to supervise and direct the operation of the newly created drafting office. Again, there was a new name, some new wording, but still the same purpose. See also, “Legislature Passes the Laws – But Executive Branch Used to Write Them” (November 3, 2016) and “Revisor of Statutes Ensures Access to Colorado’s Laws” (November 17, 2016).

    Committee basics. Pursuant to section 2-3-502, C.R.S., the Committee consists of 10 members of the Colorado General Assembly. Committee members include the chairs of the House and Senate Judiciary Committees, or their respective designees, four members appointed from the House of Representatives, and four members appointed from the Senate. There must be two members appointed from each major political party, and at least one member from each party in each chamber must be an attorney, if there is an attorney in that party and chamber. The Speaker of the House, the President of the Senate, and the minority leaders of each chamber, appoint the Committee members from their respective parties and chambers, subject to the approval of a majority of the members in each respective chamber,  within the first 10 days after a first regular session convenes. The Committee selects its own chair and vice-chair. The Committee may meet as often as necessary, but is required to meet at least twice in each calendar year.

    The Committee has the following statutory duties:

    • Supervision and direction of Office of Legislative Legal Services. Pursuant to section 2-3-502 (1), C.R.S., the Committee is to “supervise and direct operations of the Office of Legislative Legal Services.” One of six legislative staff agencies, the OLLS is the nonpartisan, in-house counsel for the Colorado General Assembly and drafts legislation and produces the statutes in addition to its other statutory duties. In its supervisory role, the Committee recommends to the Executive Committee the appointment of a director for the OLLS and approves the OLLS’s annual budget.
    • Overseeing the review of executive branch agency rules by the OLLS staff. Under section 24-4-103 (8)(c)(I), C.R.S., all rules adopted or amended by state agencies during a one-year period that begins November 1 and continues through the following October 31 automatically expire the following May 15 unless the General Assembly passes a specific bill to postpone this expiration date. A “rule” is a formal written statement of law that a state agency adopts to carry out statutory policies and administer programs. The General Assembly authorizes an agency to make rules and then reviews and, if necessary, invalidates any rules that are not within the agency’s statutory authority or that conflict with state law. The OLLS staff review each rule and bring any rule issue they cannot resolve with an agency to the Committee for a rule hearing. At the hearing, the Committee decides whether to recommend expiration or extension of the rule. The Committee annually sponsors the Rule Review Bill that contains the Committee’s rule recommendations. See also, “The Legislature’s Role in the Review of Administrative Rules” (September 1, 2011) and “Legislative Oversight of State Agency Rule-making” (September 4, 2014).
    • Overseeing Legislation Review. Pursuant to section 24-4-108 (7), C.R.S., the Committee has established procedures for the annual review of newly adopted legislation and its impact on agency rules. After the legislative session ends each year, the OLLS staff identifies legislation that affects rules or requires or permits agencies to adopt rules. The OLLS staff sends a letter to each principal department listing bills that affect that department’s rule-making authority. In addition, the OLLS staff is directed by section 24-4-103 (8)(e), C.R.S., to notify bill sponsors, co-sponsors, and committees of reference when the OLLS receives rules that implement newly enacted legislation. The OLLS staff sends these notices by e-mail.
    • Litigation involving the General Assembly or its members. Pursuant to section 2-3-1001, C.R.S., the Committee may retain legal counsel to represent the General Assembly as a whole, the House, the Senate, a legislative committee, an individual member of the General Assembly, or a legislative staff agency or employee of the General Assembly in all actions and legal proceedings that arise from the performance of  legislative duties.
    • Supervising the preparation, printing, and distribution of the Colorado Revised Statutes. The Revisor of Statutes must perform numerous duties related to revising and compiling the Colorado Revised Statutes and Session Laws, all under the supervision and direction of the Committee (sections 2-3-701 to 2-3-705, C.R.S.). Section 2-5-104, C.R.S., authorizes the Committee to introduce one or more Revisor’s Bills each year, which may address “amendments or repeals of obsolete, inoperative, imperfect, obscure, or doubtful laws as the Revisor of Statutes considers necessary to improve the clarity and certainty of the statutes.” The Committee also sponsors an annual bill to enact the legislation adopted at the previous legislative session as the statutory law of Colorado. The Committee must contract through a bidding process for the printing, binding, and packaging of softbound volumes of the Colorado Revised Statutes and Session Laws. In addition, as part of its publication responsibilities, the Committee is overseeing the implementation of the “Uniform Electronic Legal Material Act” (section 24-71.5-101, C.R.S., et. seq.) as it relates to the electronic publication of the statutes and other legal materials.

  • Audit Committee Created to Boost Oversight of Public Money

    by Julie Pelegrin

    This week LegiSource continues its series on the statutory committees that oversee the legislative staff agencies. Last week, the series looked at the Legislative Council. This week, we review the history and duties of the Audit Committee.

    By the 1960s, the Colorado General Assembly, like many other state legislatures, was starting to consider ways to increase the efficiency and effectiveness of state government. To that end, they created a legislative interim study committee that met each interim starting in 1961 and continuing through the early 1970s.  Each year, the committee took up different aspects of state government to study. By the end of the legislative interim, they published a report, which usually included findings and recommendations for constitutional and statutory changes.

    In the legislative interim of 1963, one of the study topics was the state auditing function. At that time, the State Auditor was a constitutional officer in the executive branch elected to a four-year term. The constitution prohibited both the state treasurer and the state auditor from running for consecutive terms, so it sometimes worked out that the same two persons would swap offices at each election. The State Auditor’s only constitutional duty in 1963 was to serve on the State Board of Equalization, which reviews valuations for property tax assessments and approves property tax manuals and appraisal procedures. The State Auditor’s two main statutory duties were conducting post-audits of all state agencies in Colorado and reviewing the audits made of local governments.

    At that time, state auditing occurred in three areas, all housed in the executive branch: Pre-auditing by the state controller’s office, post-auditing by the State Auditor, and internal auditing within each state agency. A post-audit consisted of determining whether:

    • Revenues were collected in compliance with the law;
    • Money was expended in accordance with legislative intent and sound financial practice;
    • The executive branch was carrying out only the activities authorized by the legislature; and
    • The assets of the state were safeguarded and used properly.

    The General Assembly received the findings and recommendations generated by the post-audits, but the post-audits were conducted by an executive branch official.

    By the 1960s, almost half of the states had adopted the position that the post-audit function should be housed in the legislative branch and conducted independent of the executive branch, because the legislative branch was considered to be the guardian of the public money.

    Based on their studies, the committee recommended that the General Assembly refer a constitutional amendment to the ballot to move the State Auditor and the functions of the State Auditor to the legislative branch “where the post-audit function properly belongs.” The recommended constitutional amendment created section 49 of article V of the Colorado Constitution, which authorizes the General Assembly to appoint a state auditor, without regard to political affiliation, who must be a certified public accountant. The State Auditor’s term would be five years, a person would be limited to serving no more than two consecutive terms, and the General Assembly would be able to remove the State Auditor from office for cause with the approval of 2/3 of the legislators in both houses.

    The committee also recommended that, regardless of whether the constitutional amendment was adopted, the General Assembly should create a joint legislative audit review committee to assist in carrying out the post-audit program in the state.

    In November of 1964, voters passed Senate Concurrent Resolution No. 3, adopting the committee’s recommended constitutional changes.[1] During the 1965 regular legislative session, the General Assembly adopted House Bill No. 1051. The bill enacted section 2-3-101, C.R.S., which created the Legislative Audit Committee consisting of eight members: Four appointed from each chamber, with two each appointed by the President and minority leader of the Senate and the Speaker and minority leader of the House of Representatives. All of the appointments must be approved by a majority vote of the legislators elected to the chamber from which the committee members are appointed, but an appointing authority may temporarily replace one of his or her appointments with a different legislator without the approval of the chamber.

    Legislative Audit Committee members are appointed every two years at the beginning of the first legislative session of each general assembly, and a legislator may be appointed to multiple terms on the committee so long as he or she remains in the General Assembly. The committee selects its chair and vice-chair from among the committee membership and sets its own rules of procedure. The committee may also appoint subcommittees to help it complete its duties, which may include legislators who are not members of the committee and other persons.

    The Legislative Audit Committee must meet at least quarterly each year and has the following major duties:

    • Examining the qualifications and abilities, without regard to political affiliation, of persons who apply for the position of State Auditor and, after consulting with the executive committee, nominating the most qualified person or persons for the General Assembly to select as State Auditor;
    • Reviewing the State Auditor’s activities and post-audit reports of all departments, state institutions of higher education, agencies of state government, and other public agencies including local governments and submitting its recommendations to the General Assembly, the Governor, and other interested officials;
    • Reviewing the performance audits that the State Auditor is required to conduct;
    • Reviewing the enterprise designations of the auxiliary facilities of the state institutions of higher education and the enterprise designation of the student loan division to ensure compliance with the statute and with the constitution and to determine whether any of the designations should be allowed to expire; and
    • After receiving a report involving retaliation against a state employee for disclosing information concerning waste of public funds or mismanagement of a state agency, directing the auditor to investigate and determine whether a fiscal audit, performance audit, or management study of the issue is necessary. Based on the investigation report, the committee will direct the State Auditor to immediately conduct a special audit or a management study or it may direct the State Auditor to wait until the regularly scheduled audit.

    You can access the committee’s schedule and agenda, as well as recently released audits, through the Legislative Audit Committee page on the General Assembly website. The committee’s next meeting is scheduled for October 30.

    [1] Section 49 of Article V of the Colorado constitution was amended in 1974 to allow a person to serve unlimited consecutive terms as State Auditor.

  • Legislative Council Provides Crucial Oversight and Guidance to the General Assembly

    By Darren Thornberry

    Editor’s Note: Currently, there are four statutory committees whose duties include overseeing the operations of four of the legislative staff agencies. It appears that the General Assembly created each of these committees with the goal of increasing the effectiveness of the General Assembly, improving its ability to pass well-considered legislation, and improving its ability to provide independent oversight of the use of public money.

    Over the next four weeks, we will look at each of these committees – the Legislative Council, the Audit Committee, the Committee on Legal Services, and the Joint Budget Committee – why they were created, how they operate, and their current duties.

    The Colorado General Assembly’s Legislative Council is one of its most vital committees, at times mistaken for the state’s hard-working Legislative Council staff for which it provides oversight. The public might be more familiar with interim study committees, which often receive testimony from Colorado citizens on a variety of subjects, but the Legislative Council committee also takes up a number of important tasks.

    Colorado’s Legislative Council was statutorily created in the 1953 legislative session. At the time, legislatures usually met for much shorter sessions than they do today, which caused some legislators to feel that the body wasn’t functioning as well as it should or that its role was being usurped by governors while they were not in session. Echoing the sentiment of other state legislatures of the time, Colorado’s Legislative Council was seen as a means to help legislators address problems that would otherwise not be seeing legislative solutions. The Council was designed to meet during the legislative interim to study issues of interest and provide policy recommendations to the General Assembly.

    When it created the Legislative Council, the General Assembly immediately realized that it would need staff support. The first Legislative Council staff director came and went so fast that his name has all but been erased, but the second director, Shelby Harper, started in November 1953. With a single assistant and a $12,000 appropriation, the work of serving legislators began. Harper moved on to another career pursuit in the winter of 1957 and was succeeded by Lyle Kyle, who served as director until 1985. In the 1967 legislative session, the Legislative Council staff was comprised of enough people to staff, for the first time, the three busiest committees in each house: Judiciary, State Affairs, and Business Affairs.

    One of four statutory legislative committees that oversee legislative staff agencies, the Council is a joint standing committee, created in section 2-3-301 of the Colorado Revised Statutes. Section 2-3-301 (1), C.R.S., reads in part:

    There is hereby created a legislative council, referred to in this part 3 as the ‘council’, which consists of an executive committee, six senators with majority party members appointed by the president of the senate and minority party members appointed by the minority leader of the senate, with the approval of a majority vote of the members elected to the senate, and six representatives with majority party members appointed by the speaker of the house of representatives and minority party members appointed by the minority leader of the house of representatives, with the approval of a majority vote of the members elected to the house of representatives.

    Today, within the Legislative Council, the Executive Committee consists of the President, Majority Leader, and Minority Leader of the Senate and the Speaker, Majority Leader, and Minority Leader of the House of Representatives. The Speaker of the House of Representatives and the President of the Senate alternately serve one-year terms as the chair and vice-chair of the Executive Committee. In 2017, President Kevin Grantham has served as chair. In 2018, Speaker Crisanta Duran will assume the chairmanship.

    The remaining members of the Council are appointed no later than 10 days after the first regular session of each General Assembly convenes. Membership on the Council terminates with the appointment of a member’s successor or upon the termination of a member’s term of office in the General Assembly, whichever occurs first. A member may be appointed to succeed himself or herself.

    In 2016, Senate Bill 16-156 changed the authority of the President, the Speaker, and the minority leaders to make temporary appointments. Now, any of these appointing authorities may temporarily appoint a member to replace a current committee member without the approval of a majority of the members elected to the applicable body.

    What Does the Committee Do?
    The Legislative Council meets quarterly (twice during session), to review and approve the Legislative Council staff budget and to review letters or bills that request creation of new interim study committees. The Council’s other important duties (2-3-303 C.R.S.) are to:

    • Approve bills recommended by interim legislative council committees or other committees created by statute or resolution, which operate during the interim, no later than October 15 in odd-numbered years and November 15 in even-numbered years;
    • Approve the Colorado Blue Book, which provides information on statewide measures and on the judges who are on the ballot for retention during an election;
    • At times, review modifications to state implementation plans relating to air quality;
    • Collect information concerning the government and general welfare of the state;
    • Consider important issues of public policy and questions of statewide interest;
    • Prepare for presentation to the members and various sessions of the general assembly such reports, bills, or otherwise, as the welfare of the state may require; and
    • Examine the effects of constitutional provisions and statutes and recommend desirable alterations.

    The Executive Committee of the Legislative Council meets separately, and its duties include oversight of the legislative service agencies and their directors, establishment of policies regarding legislative management and legislative procedures, and introduction of an annual legislative appropriation bill. The Executive Committee is responsible for approving the Legislative Council staff budget reviewed by the Legislative Council, along with the budget requests of the House and Senate and other legislative staff agencies. The Executive Committee also exercises legislative management functions when the General Assembly is not in session and may set the date for the convening of the next regular session of the General Assembly.

    The Legislative Council is scheduled to meet at 10 a.m. on November 15 in Committee Room 271 at the Colorado State Capitol to review interim committee legislation. At the time of this posting, the agenda has not been released.

  • Maximum Reserve

    by Ed DeCecco

    Sadly, “Maximum Reserve” is not the name of the next Jerry Bruckheimer summer blockbuster. Nor is it even an oft used term. By last count, it appears in a measly .0000003% of sampled books. That makes your odds of randomly picking up a book with this phrase about the same as winning the lottery.  Unless, that is, your book shelf possesses three feet of handsome red volumes, known as the Colorado Revised Statutes. Then this is indeed your lucky day because “maximum reserve” is a defined term in section 24-75-402, C.R.S., and is at the heart of the statutory limit on the uncommitted reserves in a cash fund.

    The “maximum reserve”[1] is defined as “sixteen and five-tenths percent of the amount expended from a cash fund during the fiscal year” and is used to create a limit on the uncommitted reserves in a cash fund at the end of a fiscal year. So, if a state agency spends $1,000,000 from a cash fund during a fiscal year, then the maximum amount that can be left in the cash fund at the end of the year is $165,000, which is roughly equal to two months of its spending.

    Except if it is not. Sometimes an alternative limit is appropriate. To address this, the General Assembly created the cleverly named “alternative maximum reserve,”—side note: also a good name for the movie sequel—which is a maximum reserve balance established in the constitution, by law, or Joint Budget Committee (JBC) waiver (more on that later) that is different from 16.5% of the amount expended. For example, the General Assembly could establish an alternative maximum reserve of 25% of the amount expended or even a specific dollar amount.

    If a state agency exceeds the applicable reserve limit for a fiscal year, then it is required to reduce the fees the agency collects in the next year so that it won’t do so again. The agency may subsequently raise a fee, but only if doing so won’t cause it to have excess uncommitted reserves. And if there are excess uncommitted reserves for three or more years, then the agency must deliver a hostage to the State Controller’s office until it complies. (Sorry, I’ve been binge watching Game of Thrones.) The real penalty is that the State Controller will restrict the amount of money available to be spent from the cash fund.

    Now, a statutory requirement without exceptions is like an Elvis impersonator without a sequin jumpsuit, and the limitations on uncommitted reserves are replete with them. The limit only applies to a “cash fund,” which in this context means “any fund that is established in law for a specific program or purpose and that includes moneys from fees,” but excluding the state general fund, any federal fund, and a fund used by a state institution of higher education. So, you’ll be happy to know that the state is free to have a general fund surplus that exceeds the maximum reserve.

    In addition, a cash fund is a depository for “fees,” which, for purposes of the maximum reserve, are any money collected or received by an entity but excluding, among other things:

    • Revenue that is not state fiscal year spending;
    • Fines or other criminal penalties;
    • Money transferred from the state general fund;
    • Non-discretionary charges or assessments;
    • Interest and income; and
    • Gifts or donations. (Everybody loves gifts. C’mon, who would want a cap on those?)

    So if a cash fund consists entirely of non-fee revenue, then the maximum reserve does not apply, and if a cash fund is a mix of fee and non-fee revenue, then the non-fee revenue is proportionally excluded from the uncommitted reserves.

    But wait! That’s not all! The limit on uncommitted reserves also doesn’t apply to cash funds established to fund capital construction, cash funds with uncommitted reserves that are less than $200,000, cash funds only used for a program that is less than two years old, and a bunch of cash funds that are expressly excluded from the limit.

    Finally, a state agency can solicit the JBC for a waiver from the maximum reserve based on specific circumstances. The JBC can, for up to three years, grant an exemption or establish an alternative maximum reserve for the agency. Given that state agencies sometimes have perfectly good reasons to exceed the maximum reserve, this seems like an efficient alternative to enacting legislation to specifically exempt a single cash fund. And fewer bills to be drafted means fewer bill drafters…hey, wait a minute!

    Admittedly, there are numerous exceptions. But considering that there are scads of cash funds,[2] it still has a broad application. Plus, these exceptions can be better understood when viewed in light of the avowed purpose of the limit on uncommitted reserves. Because fees contribute to the TABOR fiscal year spending limit, it is necessary to keep them in check by establishing a reasonable reserve derived from fee revenue.

    And don’t think that the limit on uncommitted reserves was created and then immediately forgotten—like this legislative staff blog article, for example. The State Controller is required to annually prepare a report to be delivered to the JBC and the Office of State Planning and Budgeting identifying the uncommitted reserves for each state cash fund, and the State Auditor is required to audit the report.

    Well, that’s probably about all you want to read about limits on uncommitted reserves for cash funds, and I need to start work on my screenplays for the “Maximum Reserve!” movie franchise, so I bid you adieu.

     

    [1] The “maximum reserve” was formerly known as the “target reserve,” which gave the misimpression that state agencies should aspire to have that amount in reserve at the end of each year. Thanks to Alfredo Kemm, Joint Budget Committee Staff, for suggesting the sensible rebranding.

    [2] Perhaps, too many? See “A Legislator’s Guide to Creating Cash Funds.”

  • U.S. Supreme Court Holds Prohibition on Disparaging Trademarks Unconstitutional

    by Jery Payne

    A while back I wrote about event signs, license plates, and government speech. That post covered Walker v. Texas Div., Sons of Confederate Veterans, Inc., in which the U.S. Supreme Court held that Texas could deny an application for special license plates because it didn’t like the message expressed on the plates. This bit of content discrimination did not fall afoul of the Free Speech Clause of the First Amendment because the Court decided that the content of special license plates is government speech.

    Now the Court has ruled on another case where the federal government discriminated based on content. In this case involving trademark registration, the government relied heavily on the Walker case, arguing this bit of content discrimination is also government speech. But the Court struck down the law anyway.

    Although people are calling it the “Slants case,” the actual case name is “Matal v. Tam.” The Slants are a pop-rock band whose members are of East Asian descent, so the band chose the name to “reclaim” and “take ownership” of stereotypes about people of East Asian ethnicity. The band filed for trademark registration of the band name, “Slants.”

    By Gage Skidmore, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=54532298

    Federal law, however, forbids the registration of a trademark that “[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute….” The term “slants” has been used as a disparaging term for East Asians, so the trademark examiner refused to register the trademark.

    The band took the examiner to court. The case wended its way to the Supreme Court, where the government defended the statute based on the Walker decision. They argued that trademark registration is government speech. And you can see why because the two cases have a lot in common. The messages in both cases are:

    (1) Benefiting from a government program;

    (2) Intended for private use, which often means for commercial use;

    (3) Placed on privately owned property; and

    (4) Originating from private citizens.

    Despite coming from private citizens, the court held in Walker that the messages on special license plates are government speech. But when you take seriously the notion that these messages come from the government, the messages conveyed are often contradictory and frequently weird or even nonsensical. The license plates in the Walker case included the state of Texas celebrating Oklahoma football, advising that you can “get it sold” with RE/MAX, or saying “I’d rather be golfing.” Can a state government golf?

    The Court pointed out in the Matal case that considering trademarks government speech is just as weird:

    [W]hat does the Government have in mind when it advises Americans to “make.believe” (Sony), “Think different” (Apple), or “Have it your way” (Burger King)?

    The Matal case, like the Walker case, involves speech that comes from a private citizen but seeks to benefit from a government program. In other words, the facts of both cases exist in a gray area between what is clearly government speech that doesn’t fall under the Free Speech Clause and what is clearly private speech that does fall under the Free Speech Clause. In the Matal case, the Court explained the difference:

    This brings us to the case on which the Government relies most heavily, Walker, which likely marks the outer bounds of the government-speech doctrine. Holding that the messages on Texas specialty license plates are government speech, the Walker Court cited three[1] factors … First, license plates have long been used by the States to convey state messages. … Second, license plates ‘are often closely identified in the public mind’ with the State, since they are manufactured and owned by the State, generally designed by the State, and serve as a form of ‘government ID.’ … [N]one of these factors are present in this case.

    So the Court decided that (1) Walker “likely marks the outer bounds of the government-speech doctrine,” (2) the mere fact that a message may benefit from a government program does not make it government speech, and (3) the messages must be closely identified with the state “in the public mind” to constitute government speech. Trademarks are meant to identify businesses, and most people think of a business, not a government, when they see a trademark; there isn’t the same likelihood that people will think the government is sending the message.

    In deciding these cases, the Court shrunk the area of uncertainty between government speech and private speech. The license-plate case had the potential to take a large bite out of First Amendment protections. Copyright law also provides a government benefit to private speech, and the government relied heavily on this idea in the Matal case. Copyright applies to virtually all books, magazines, and blogs. If the Court had determined that simply granting a benefit gives the government the ability to regulate content, then the government could regulate the content of most writings. But instead, the Court made it clear that merely bestowing a government benefit on a “speaker” does not give the government the ability to regulate the content of the speech.

    [1] The third factor isn’t relevant to this article.

  • Teachers’ Loyalty Oaths and the Constitution

    by Julie Pelegrin

    Last week, we discovered that teachers and professors must take an oath to uphold the federal and state constitutions and to faithfully perform their duties. Originally, however, they also had to swear to “teach … respect for the flags of the United States and of the State of Colorado, reverence for law and order and undivided allegiance to the government of one country, the United States of America.”

    Several states adopted similar requirements generally starting in the 1920s and continuing into the 1950s. During this period, many people were concerned about the possibility of subversive elements within the government, including the public schools. By the 1960s, teachers and professors were concerned that taking these oaths violated their constitutional rights. So they started suing.

    One of the first cases was Baggett v. Bullitt out of Washington. In 1931, the state of Washington passed a law requiring teachers to take an oath that was almost verbatim the same as the oath adopted in 1921 in Colorado. In the early 1960s, a group of faculty, staff, and students at the University of Washington sued, claiming the oath was unconstitutionally vague. Generally, courts have held that a law that forbids or requires conduct in terms so vague that persons of common intelligence have to guess what it means is unconstitutional because it violates due process.

    The plaintiffs lost at the trial court level, so Baggett v. Bullitt ended up in front of the U.S. Supreme Court in 1964 where the Court held that the oath was too vague. The Court recognized that there are many activities that could be interpreted as violating a promise to promote respect for the flag, including refusing to salute for religious reasons.

    The Court also found that it would be difficult to predict what actions could be interpreted as violating a promise to “promote … undivided allegiance to the … United States of America.” The Court found that

    It would not be unreasonable for the serious-minded oath taker to conclude that he should dispense with lectures voicing far-reaching criticism of any old or new policy followed by the Government of the United States. He could find it questionable under this language to ally himself with any interest group dedicated to opposing any current public policy or law of the Federal Government, for if he did, he might well be accused of placing loyalty to the group above allegiance to the United States.

    Despite the Baggett decision, the Colorado statute remained on the books. Then in 1967, University of Colorado Professor Alan Gallagher refused to take the oath and sued the president of the university—Joseph Smiley— and the Board of Regents. Professor Gallagher claimed the oath violated his constitutional rights because it was vague and overly broad. The federal district court for Colorado agreed. They followed the Baggett decision and issued an injunction prohibiting CU from requiring its professors to take the statutory oath.

    But before the court ruled, the CU Board of Regents in February of 1967 had adopted a resolution requiring CU professors to take a different oath:

    I solemnly swear or affirm that I will support the Constitution of the State of Colorado and of the United States of America and the laws of the State of Colorado and of the United States.

    Professor Gallagher’s case did not challenge the Board of Regents’ new oath, and the court did not consider whether it was constitutional. So, the court’s injunction prohibited CU from requiring the statutory oath, but faculty still had to take the Regents’ oath.

    A few months later in the fall of 1967, a group of CU professors and employees, this time led by Professor Elizabeth Hosack, sued claiming the Regents’ oath was also unconstitutionally vague and that it violated their First Amendment rights to freedom of expression.

    The United States District Court for the District of Colorado found that the Regents’ oath was not unconstitutionally vague, but “plain, straight-forward, and unequivocal. A person taking it is not left in doubt as to his undertaking. The obligation assumed is one of simple recognition that ours is a government of laws and not of men.”

    The panel also found that the oath did not infringe on the professors’ and employees’ freedom of expression.

    Recognition of and respect for law in no way prevents the right to dissent and question repugnant laws. Nor does it limit the right to seek through lawful means the repeal or amendment of state or federal laws with which the oath taker is in disagreement. Support for the constitutions and laws of the nation and state does not call for blind subservience.

    This opinion came out in December of 1967, and in 1969 the General Assembly passed House Bill No. 1194, which changed the wording of the statutory oath to what we have today:

    I solemnly (swear) (affirm) that I will uphold the constitution of the United States and the constitution of the state of Colorado, and I will faithfully perform the duties of the position upon which I am about to enter.

    The statutory oath is similar to the Regents’ oath; the teacher or professor is promising to uphold the federal and state constitutions and to faithfully perform his or her duties. Further, there is no mention of respect for the flags, reverence for law and order, or undivided allegiance.

    In the fall of 1969, a group of Denver Public School teachers and professors from several Colorado universities and colleges sued in federal court to prevent implementation of the new oath. Again, they were claiming that the oath was unconstitutionally vague and deprived them of their First Amendment rights. And again, the federal district court disagreed, upholding the statute as constitutional.

    The three-judge panel followed the decision in the Hosack case, finding that there was nothing vague about promising to uphold the federal and state constitutions. The plaintiffs then claimed that the promise to faithfully perform their duties was too vague. The judges disagreed. “The state can reasonably ask teachers in state schools to subscribe to professional competence and dedication. This portion of the oath…imposes no restrictions on a teacher’s political expressions. It is certain that there is no right to be unfaithful in the performance of duties…. ”

    At the end of its decision, the panel of judges admitted that they were puzzled as to why the plaintiffs found the taking of an oath so “obnoxious.” While the court understood that the plaintiffs felt that they didn’t know what they were promising and had reservations about what the significance of the oath was, the court refused to find these reservations as a basis for holding the oath invalid. “The decision as to [the] worth or value [of the oath] is for the legislature, and we are not prepared to say that it does not serve a purpose any more than we could say that the constitution itself is valueless.”

    The loyalty oath for teachers and professors remains in the Colorado Revised Statutes. Presumably the General Assembly continues to find that it serves a purpose.

  • Teachers Required to Pledge Their Loyalty…Still

    Teachers Required to Pledge Their Loyalty…Still

    by Julie Pelegrin

    Since 1921, the law has required elementary, junior, and high school teachers and college and university professors to take what’s called a “loyalty oath” affirming their loyalty to both the country and the state. The wording of the oath has changed over the years and been challenged a couple of times in court, but it’s still on the books as a requirement for licensed teachers or for employment as faculty in a public postsecondary institution.

    Oaths to uphold the constitution are common for elected officials. Since 1876, the Colorado Constitution has required every legislator and every other elected officer to take an oath to uphold the U.S. and Colorado constitutions and to “faithfully perform the duties of his office according to the best of his ability.”

    But in 1921, the General Assembly passed S.B. No. 123, by Senator Alexander R. Young and Representatives Mabel Ruth Baker and Charles C. Sackmann, entitled “An act to provide for an oath or affirmation of allegiance to be taken by all persons who are teaching or who may hereafter be employed to teach in public, private or parochial schools or other institutions of learning in the state of Colorado.”

    Why then? And why teachers?

    Think back to your American and world history classes. The United States helped broker the armistice that ended World War I—the “war to end all wars”— in 1918. Also, the Russian Revolution, which eventually resulted in the Bolsheviks taking over the government and installing the Communist regime, occurred in 1917.

    According to the Fort Collins Courier, in an editorial titled “Teachers Must Swear Loyalty,” published August 23, 1919, during the war, “a number of cases came to light of teachers who openly or by clever insinuation tried to undermine the children’s belief in their country, its cause and in the fundamental ideals of honest democracy. Although such cases were not common, they were numerous enough to create a real menace.” The Steamboat Pilot (“Gossip of State Capital” Feb. 16, 1921), also noted that “[d]uring the World war many disloyal teachers were uncovered, especially in Denver.”

    The Courier was in favor of a new law passed by Ohio that required all teachers in public, private, and parochial schools to take an oath of allegiance to the United States, at least for elementary, middle, and high schools. However, with regard to colleges and universities, the Courier thought “application of the law to be of dubious wisdom.” They didn’t want the law to cut off the benefits of having exchange professors who explained the viewpoints of their respective countries. They recognized that lectures by professors visiting from other countries could “bring about a pleasanter relationship based on mutual understanding.” But they also noted that the law “would of course keep out the propagandist and the man with dangerous alien doctrines.”

    Support for the bill was not unanimous across the state, however. The Leadville Herald Democrat opposed the bill in February of 1921, noting that the governor of Montana had vetoed a similar bill and urging Governor Shoup of Colorado to do the same once the bill landed on his desk. The Herald Democrat noted that requiring a teacher to declare his or her belief in the “‘American form’ of government” was supposed to “minister to a sort of super-patriotic sentiment” and keep “dangerous radicals” from putting the wrong ideas into students’ heads. But the effect of this requirement is actually to put “powerful weapons in the hands of the political heresy hunters, a phrase that [the Montana] governor uses….” It concluded with the remark: “The state needs good teachers, not automatons.” (Leadville Herald Democrat, “A False Political Test” February 6, 1921.)

    Despite the Herald Democrat‘s misgivings, the bill sailed through the legislature. It was introduced in the Senate on January 13 and passed on third reading in the House on February 7 without amendment. On February 15, 1921, Governor Shoup signed it into law.

    In June, the Herald Democrat was still railing against it. “The truth is that these and kindred measures are after-war reactions, based on the theory that the country is full of radicalism, revolution and strange doctrine.” The article notes that in the most recent election, “radical parties were almost wiped off the slate” and argues that the real threat to “the structure of Americanism” is “the introduction of too much of the Prussian system of state worship…” (Leadville Herald Democrat, “The Oath of a Teacher” June 4, 1921.)

    That fall, the American Legion held its national convention in Kansas City from October 31 to November 2. The Routt County Sentinel reported the convention highlights, including a list of items included in the Legion’s platform. Among other issues, the American Legion included these planks:

    Education in citizenship is the keynote of Americanism.

    That American history and civil government be taught more thoroughly in our public schools.

    Favoring state laws requiring every teacher to take an oath of allegiance to uphold the constitution and the conciliation of certificates of those teachers found disloyal to the American government.

     (Routt County Sentinel, “High Lights on Legion’s National Convention” Nov. 25, 1921.)

    Based on the newspaper coverage, we can deduce that the teacher loyalty oath statute arose out of the support for “Americanism” that was engendered by World War I and the threat, real or perceived, of anti-American, anarchist, and possibly Communist elements in society. So starting in the fall of 1921 and each year thereafter, all new teachers and professors were required to solemnly swear or affirm:

    [T]hat I will support the constitution of the State of Colorado and of the United States of America and the laws of the State of Colorado and of the United States, and will teach, by precept and example, respect for the flags of the United States and of the State of Colorado, reverence for law and order and undivided allegiance to the government of one country, the United States of America.

    Until 1969, that is. That year, the General Assembly amended the oath to its current form:

    I solemnly (swear) (affirm) that I will uphold the constitution of the United States and the constitution of the state of Colorado, and I will faithfully perform the duties of the position upon which I am about to enter.

    Why the change? And why then?

    We’ll talk about that next week. Hint: The answers lie with the judicial branch.

  • Statutory Revision Committee: Looking Back, Looking Ahead

    by Kate Meyer

    As we informed you last year, the General Assembly recreated the Statutory Revision Committee (SRC) through legislation enacted in 2016. Generally, the SRC makes an ongoing examination of the Colorado Revised Statutes (C.R.S.) to discover and—via legislation—rectify defects and anachronisms in the law. The SRC recommenced meeting during the 2016 interim and has had a very productive year.

    2017 session
    In the 2017 legislative session, the SRC recommended for introduction 26 bills, all of which the General Assembly passed and the Governor signed into law.  By way of comparison, this figure falls within the range of bills previously recommended by the SRC’s predecessor entity (also known as the “Statutory Revision Committee,” this entity existed from 1977-1985), which annually recommended between 12 and 39 bills.

    The majority (i.e., 18 of the 26) of the SRC’s 2017 bills conformed existing reporting requirements with the language in section 24-1-136 (11)(a)(I), C.R.S., which imposes an automatic three-year repeal of reports to the General Assembly from executive branch agencies and the judicial branch. In consultation with the reporting entities and the Joint Budget Committee, the SRC bills aligned statutory reporting requirements with the automatic repeal. In some cases, the SRC bills repealed reports that were no longer necessary due to lack of funding, expired programs, lack of information to report, redundant information included in other reports, etc.

    Other SRC-sponsored bills:

    • Eliminated out-of-date and unintelligible descriptions of congressional and state House and Senate boundaries (HB17-1074 and HB17-1025, respectively);
    • Removed redundant sections in Title 25, C.R.S., that resulted from an incorrect technical amending clause contained in a 2016 bill (SB17-018);
    • Updated various obsolete and outdated laws relating to the state auditor’s office (HB17-1005);
    • Relocated the Commission on Family Medicine laws to a more appropriate title of the C.R.S. (HB17-1024);
    • Repealed an antiquated duty of the state treasurer and controller to physically post lists of all uncashed warrants and uncashed checks (SB17-046);
    • Rectified incorrect references in Title 22, C.R.S. (SB17-052); and
    • Corrected out-of-date references to American National Standards Institute standards for accessible housing (HB17-1067).

    Overall, more than 30 pages of statutory text were repealed or modernized through SRC-recommended legislation.

    Current committee composition and activity
    The committee consists of four legislators (two appointees from the majority and minority leaderships in each house) and two nonlegislator, nonvoting attorneys appointed by the Committee on Legal Services. The current appointees are: Senator Beth Martinez Humenik (Chair), Senator Dominick Moreno (Vice-Chair), Representative Jeni James Arndt, Representative Edie Hooton, Representative Dan Nordberg, Senator Jack Tate, Representative Dan Thurlow, Senator Rachel Zenzinger, Patrice Bernadette Collins, and Brad Ramming.

    The SRC met in June 2017 and requested staff to draft two bills: One to reorganize without substantive change the state sales tax exemption for certain drugs and medical and therapeutic devices; and one to repeal the odometer reading requirement for VIN verifications. The committee meets again on Monday, August 21, 2017, to decide whether to recommend those bills, which requires an affirmative vote from at least five of the legislative committee members, and to hear staff presentations on another 13 potential bills. The items slated to be addressed during the August 21 meeting encompass a wide breadth of subjects, including:

    • An apparent statutory conflict over whether deputy sheriffs must be certified by the Peace Officers’ Standards and Training (P.O.S.T.) Board;
    • Various laws held to be unconstitutional relating to sexually explicit materials harmful to children, same-sex marriage, interest on damages in § 13-21-101 (1), C.R.S., and per-signature pay of ballot issue petition circulators;
    • Antiquated or ambiguous terms, such as “pauper,” “husband and wife,” or “mother and father;” and, with respect to children, “legitimate/illegitimate;”
    • Unfunded department of human services programs; and
    • Outdated and inconsistent state officials’ bonds and oaths requirements.

    The bill drafts, memoranda, and assorted documents for the August 21 meeting are all available through this link: http://leg.colorado.gov/publications/meeting-agenda-statutory-revision-committee-20170821 and the audio from the meeting can be live-streamed here: http://leg.colorado.gov/committee/granicus/933566.

    The SRC expects to meet in October 2017 as well—date to be determined.

    Know of any antiquated, redundant, or contradictory laws? Please feel free to contact SRC staff via email: StatutoryRevision.ga@coleg.gov.

  • Pardon Our Dust: Interim Renovations at the Capitol

    by Darren Thornberry

    Imagine climbing this!

    The sine die gavel was still ringing in our ears when construction projects began anew this spring at the Colorado state capitol building. Much like the laws in our state, the building where those laws are made is itself a work in progress. Over the past two years, the interim (mid-May through late December) has seen tremendous restoration work completed in the people’s house. The Senate and House chambers and their magnificent chandeliers were restored to former glory, and the Senate committee rooms received a welcome face-lift.

    In 2017, the House committee rooms in the basement are undergoing a significant renovation and various ongoing projects are underway on the roof of the building. Kudos to the architects, engineers, construction workers, capitol staff, and everyone else involved in beautifying and restoring this grand old building. Stay safe out there!

    House Committee Rooms

    Keep out! (for now)

    Marilyn Eddins, Chief Clerk of the House of Representatives, recently gave LegiSource a sneak peek of the renovations happening in the basement committee rooms. “No more high school classrooms,” she said with a smile as we walked and talked about the updates underway on the ground floor.

    In the lobby of the committee rooms, where legislators, staff, and the public converge, brick and egg-and-dart crown molding that have not seen the light of day in decades have been uncovered by the construction crew. The crown molding will be on display once again upon completion of the renovation, and a portion of the brick might remain.

    Exposed brick and egg-and-dart crown moulding in the lobby.

    The tiny “Doc of the Day” room – 106 – is being repurposed as a small committee room with a table for 12. Room 107 is very exciting. Gone is the vertigo-inducing diagonal table. In its stead will be a straightforward, beautiful marble table. The St. Louis Antique Lighting Company, which restored the chandeliers in the House and Senate chambers, is custom-making two gorgeous lamps that will hearken back to those that hung in the room more than a hundred years ago. At that time, the room hosted a mining collection that boasted dozens of cabinets overflowing with stone and minerals including quartz, onyx, copper, silver, and gold (The Colorado State Capitol, Everett, p. 83). The renovation has already revealed an archway in Room 107 that once led outside the building. Hopefully, the room’s new look will showcase that unique architectural design after the renovation’s complete.

    The rediscovered archway

    On the left as you walk into the lobby, rooms 111 and 112 will be combined into one large room to mirror the design of matching senate conference rooms on the third floor. In 112, the renovations have revealed interior windows facing the lobby that were covered up long ago. There will be windows in this wall once again; however, they will be glazed so that light may pass but the inhabitants of the committee room won’t feel like zoo animals.

    Coming in 2018: Glazed windows in this spot!

    Finally, at the rear of the lobby, a double egress will now lead to a vestibule and another exit from the house committee rooms to the ground floor.

    Facing the rear of the lobby, where a new exit is being built

    On the Roof

    Lance Shepherd, manager of Capitol Complex Architects, provided his notes on what’s going on over our heads:

    “At the peaked ends of the roof, we are removing the tile roofing and replacing it with gray slate, which was the original roofing material. The asphalt shingle locations were originally slate, but due to the low slope the original slate failed. At these areas we are installing a zinc-coated copper to go with slate on the ends of the building. We are installing new skylights over the preserved original skylight frames.

    Toward Colfax and Lincoln

    “The scaffolding that has surrounded the building is for the gutter replacement. The gutters were originally lined with asbestos and copper. Over the years additional layers of material had been added as the gutters leaked. We are going back to the original look by removing the old gutter materials, abating the asbestos and installing new copper gutters.

    “The iron rain leaders for the roof were lined with a plastic pipe sometime in the past, reducing the capacity of the drains by 50 percent. We are removing the plastic pipes and lining the original rain leaders with fiberglass and returning the capacity to the original design.

    “The flag pole has been replaced with a new pole with detailing from the original drawings.

    “The original chimneys for the steam boiler and the bathroom vents were removed sometime in the past. We are recreating them from the original plans and old photographs.

    Hats off to the construction crew!

    “Beneath the roof, in the attic, we have been dealing with asbestos fibers that remained behind from an earlier project when asbestos was not a material of concern. Due to the disturbance on the roof from both removing old materials to adding new materials, the asbestos has been [treated with a sealant material to prevent the release of fibers].

    “We are currently scheduled to complete the project by February of next year, depending on the weather.”

    The replacement of many of the building’s exterior windows and granite cleanup could be blog posts in themselves, but it’s plain to see there’s a lot happening inside and outside of the state capitol. Of course, the public is still welcome to visit and tours are happening daily. Pardon our dust!

  • US Supreme Court Resolves a Playground Fight

    by Brita Darling

    In a recent LegiSource article, “Missouri Tires – Colorado Schools,” I described the nexus between the then-pending United States Supreme Court case Trinity Lutheran Church of Columbia, Inc. v. Pauley, concerning a “playground dispute” over scrap tire grants, and a Douglas County School District scholarship program that would provide public school funding for tuition at private religious schools. In that post I opined, along with interested persons filing hundreds, if not thousands, of pages of briefing in the case, that, with the Trinity Lutheran decision, the Court could reconsider its decision in Locke v. Davey, an important decision interpreting the Free Exercise Clause of the First Amendment to the United States Constitution. Some also suggested that the Court could use its decision in Trinity Lutheran to find Colorado’s so-called “Blaine Amendment” or “super-establishment clause” unconstitutional. Officially known as article IX, section 7 of the Colorado constitution, this provision prohibits the state from using public funds in aid of a church, or for a sectarian purpose, or to help support or sustain a church school. As it turns out, the Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer,[1] doesn’t reconsider Locke v. Davey or even opine on the constitutionality of 26 states’ Blaine Amendments.

    The Trinity Lutheran decision     

    The Supreme Court’s June 26, 2017, 7-2 decision[2] reversed the Eighth Circuit Court of Appeals, holding that the State of Missouri cannot deny the otherwise-qualified Trinity Lutheran Church (church), simply because of its status as a church, the right to participate in the Missouri Scrap Tire Program, which provides reimbursement grants for pour-in-rubber playground resurfacing made from recycled scrap tires. Denying a neutral, generally available public benefit because of who the grantee is—a nonprofit, church-affiliated preschool program—rather than what the grant is used for—safe playground surface material for children—is not okay when the grantee is otherwise qualified under the neutral grant program criteria.

    The Supreme Court compared the Trinity Lutheran facts with the case of McDaniel v. Paty, involving the constitutionality of a Tennessee law disqualifying ministers from serving as delegates to the state’s constitutional convention. In that case, the Supreme Court held that the statute discriminated against McDaniel by denying him a benefit solely because of his “status as a minister,” thereby effectively penalizing the free exercise of his constitutional liberties. In the Trinity Lutheran case, the church would have had to expressly renounce its religious character or status as a church to participate in the grant program: “The rule [for the grant program] is simple:  No churches need apply.” The Court reaffirmed that laws that target religious persons or entities for “special disabilities” or on the basis of “religious status” are subject to the strictest scrutiny and can be justified only by a state interest “of the highest order”.

    But what about Missouri’s state constitution “no aid” provision?

    The Court then found that simply complying with a state constitutional provision, such as the Blaine Amendment, does not by itself constitute a state interest of the highest order. The Court held that Missouri’s preference for “skating as far as possible from religious establishment concerns” does not qualify as compelling. And the state’s ability to comply with its “super establishment clause” is limited by the federal Free Exercise Clause. The state’s pursuit of its preferred policy to the point of denying a qualified religious entity a public benefit solely because of its religious character “goes too far” for the Court and violates the Free Exercise Clause. That’s it. But what if the public benefit would do more than just prevent bloody knees?

    How broad is this ruling?

    The relatively “easy” (7-2) decision in the case was probably due to the specific facts of the case and the type of public benefit denied the church preschool. Justice Sotomayor, joined by Justice Ginsburg, argued in her dissent that this playground dispute was actually about whether Missouri could decline to fund “improvements to facilities the Church uses to practice and spread its religious views,” and whether the federal constitution requires a state to provide public money directly to a church. But several of the justices were not persuaded. They supported a simpler characterization of the legal issue: A case of improper, express religious identity discrimination that is not supported by a compelling state interest in a neutral grant program with a secular purpose.

    The opinion includes a very interesting footnote, which arguably limits the decision’s impact to the facts in the case. Footnote 3 states:

     3This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.

    Similarly, while agreeing with much of the majority’s opinion, Justice Breyer concurred in the judgment only, emphasizing the “particular nature” of the public benefit at issue. He noted that “public benefits come in many shapes and sizes,” and saw denying a grant to the church under a program designed to make playgrounds safer as akin to denying police or fire protection for church schools, which the Court has previously held is “obviously not the purpose of the First Amendment.”  As to the reach of the Court’s decision, Justice Breyer “would leave the application of the Free Exercise Clause to other kinds of public benefits for another day,” apparently echoing the sentiment of the justices who support footnote 3.

    Notably Chief Justice Roberts, who wrote the opinion for the court, and Justices Thomas and Gorsuch do not support footnote 3.

    So what does this mean for Colorado?

    As you may recall, last spring the U.S. Supreme Court heard oral arguments in the Colorado case, Taxpayers for Public Education v. Douglas County School District, in which the Colorado Supreme Court relied on Colorado’s Blaine Amendment to strike down the Douglas County scholarship program that allowed public school funding to flow to religious schools. Following its opinion in Trinity Lutheran, the Supreme Court vacated the Douglas County decision and instructed the Colorado Supreme Court to reconsider Douglas County’s scholarship program in light of the Trinity Lutheran decision.

    How will the Colorado justices decide? Stay tuned for Part III in LegiSource. All I know for sure is that within days after the Trinity Lutheran decision, people on both sides of the school voucher debate were writing about the case’s potential impact, or lack thereof, on school voucher programs. Despite the opportunity to do so, the Court did not declare Missouri’s Blaine Amendment unconstitutional. In fact, Blaine Amendments were not even mentioned in the majority’s 15-page opinion. However, it’s safe to say that in the Douglas County case, the Colorado Supreme Court will have to wrestle with issues of status and use and ensure that any impediment to the free exercise of religion is supported by a state interest of the “highest order,” which, based on the Trinity Lutheran decision, would appear to require something more than a simple commitment to complying with Colorado’s Blaine Amendment.

    [1] Appeal was granted under the case name Trinity Lutheran Church of Columbia, Inc. v. Pauley. The case name was changed to Comer during the pendency of appeal when the new director of the Missouri Department of Natural Resources was appointed.  

    [2] Justice Roberts delivered the opinion of the Court, except as to footnote 3; Justice Thomas, with whom Justice Gorsuch joined, concurred in part; Justice Gorsuch, with whom Justice Thomas joined, concurred in part; Justice Breyer, concurred in the judgment; and Justice Sotomayer, with whom Justice Ginsburg joined, dissented.