Author: olls

“Why Don’t We Fix the Radiator?”: How a Broken Appliance Led to a Dazzling Restoration at the Colorado Capitol

by Darren Thornberry

When the chambers of the Colorado Senate and House of Representatives were built in 1894, they were adorned with gold filigree stenciling over red and green paint, respectively, that was the work of Denver artist Manuel Hill. It’s hard to imagine now, but Hill’s beautiful work fell out of favor over the decades, and in 1954 the walls and ceilings of both chambers were covered in acoustic tiles in a décor scandal we now refer to as TileGate.

The tiles were removed in 2013 and tested for lead and asbestos as part of a multiyear project to restore both chambers to their “historic and regal condition,” as former House Speaker Frank McNulty told The Denver Post.

It was Speaker McNulty who unintentionally spearheaded the renovations. See, he wanted a tilted radiator in the House gallery fixed. And then, as it turned out, a peek behind the tiles wouldn’t hurt anything, either. After all, black and white photos of the stenciling had tantalized state architects, though no one knew what condition it was in. As the project commenced in 2013, and workers began peeling back the tiles, they were astonished by what they saw.

A photo of the original stenciling underneath the acoustic tiles in the Senate Chambers. Photo shared by Chief Clerk Marilyn Eddins.

Thus began a huge renovation, funded by the Senate and House budgets and also the state’s capitol construction fund, which included painstakingly recreating the ornate stenciling and restoring the chandeliers in both chambers. Speaker McNulty would ultimately pass the project baton to his successor as House Speaker, Mark Ferrandino.

On January 6th, more than a half century after it disappeared, the artistry hidden under those infamous acoustic tiles on the ceiling of the House of Representatives was again on display. That day, House Speaker Dickey Lee Hullinghorst officially declared the chamber open, and capitol staffers were invited to see not just the stenciled ceiling but also the restored chandelier in all its glory.

Many of us walked the planks and braved the ceiling coffer (officially the “lay light space”) in the weeks prior to the reveal, both in the House and the Senate. Who recalls wondering if the scaffolding would really keep you from falling into the Well? (This writer does.) Both the coffer’s flat glass surface and the skylight in the roof above date to the 1890s.

A view of the ceiling coffer in the House of Representatives Chamber prior to the reveal. Photo credit: Ashley Zimmerman

St. Louis Antique Lighting restored the immense House chandelier to its turn-of-the-20th-century glow. They recreated the top tiers and the top escutcheon plate based on photos and the original chandelier that is still in place in the Supreme Court Chambers. The Senate chandelier is due to be restored during the interim this year.

Here is an incredible time-lapse film of the House of Representatives restoration process, courtesy of Rocket House Pictures, LLC.

Replica “Edison” bulbs were installed at the perimeter and ceiling of the House in favor of the originals. Replacing the old cloth-wrapped wiring in the originals, to light them up once again, was simply one project too many.

During the ceiling restoration process, it was discovered that prior to the most recent stencil pattern found, there was an earlier set of stencils and paintings. In the House, there were shields, eagles, and Greek or Roman profiles. In the Senate, similar profiles were found, as well as what appears to be a portrait of President Lincoln on the back east wall and another portrait on the back west wall. The west side portrait could not be identified due to the glue dobs (to hold the tiles in place) that had been placed over the face on the eyes.

The Denver Art Museum brought in equipment used to look under paintings to help document the earlier stencils/paintings. State architect Lance Shepherd states that he believes the early stencils/paintings were installed just before legislators moved into the chambers and were meant to be temporary. Likely soon afterward, the stencils now seen in both chambers, and for which there is photographic documentation, were created.

The recreated stenciling on the ceiling is based on photographs of the original design. A water-based paint was used all those years ago, probably to save money, and most of the ceiling stenciling had been washed away prior to the installation of the acoustic tiles.

Our House of Representatives and Senate chambers surely are among the most beautiful working legislative spaces in the country, thanks to their restorers’ hard work and attention to detail. May we all work as diligently this session as they did during the interim!

Author’s Note: Thanks to Lance Shepherd, manager of design and construction programs for the DPA’s Office of the State Architect, for his invaluable contributions to this article.

February 26, 2016
Statutory Construction: Severing Statutes and Resolving Conflicts
by Julie Pelegrin

Editor’s Note: This week’s article is the seventh in our series on statutory construction. For previous installments, click on “statutory interpretation” in the tag cloud.

In addition to presumptions and tools for discerning legislative intent, the statutes on construction of statutes provide specific guidance for when a court can salvage part of an otherwise unconstitutional statute and how a court should decide which statute to apply when two statutes conflict.

Statutory Salvage Operations: Severability

Suppose a court interprets a statute and finds that part of that statute is unconstitutional. Does that mean the entire statute is unconstitutional, or can some portions of the statute survive?
The answer turns on the concept of severability. Section 2-4-204, C.R.S., says that, if a court finds part of a statute to be unconstitutional, the remaining constitutional parts of the statute are valid, unless the court finds that those remaining parts are:
- So essential to the unconstitutional part, that the General Assembly would not have passed the constitutional part without the unconstitutional part; or
- So incomplete that they cannot be implemented without the unconstitutional portion.
To illustrate, let’s consider a hypothetical situation: Assume there’s a statute that regulates caterpillar breeders. Under this statute, a caterpillar breeder cannot have more than 1,000 caterpillars at a time and the caterpillar breeder cannot advertise her caterpillar breeding business. A caterpillar breeder sues the state claiming that the statute is unconstitutional because limiting the number of caterpillars and prohibiting advertising restricts her freedom of commercial speech. The court agrees that the prohibition on advertising is unconstitutional and cannot be enforced. However, the court finds that the limit on the number of caterpillars has nothing to do with commercial speech and is constitutional. The court will find that the statute is severable because the limit on the number of caterpillars is not directly related to the prohibition on advertising and can be implemented even though the prohibition on advertising is not enforced.

When Statutes Collide Part I: Specific Controls Over the General…Usually

Sometimes a statute will state a general requirement that is intended to apply in a variety of situations. But another statute may impose a different requirement in a specific situation. How is a court supposed to apply both of these statutes?

Section 2-4-205, C.R.S., directs a court to read the statutes together and give effect to both of them if possible. If the two requirements conflict and they cannot both apply, the court must apply the specific requirement instead of the general requirement. But, if the General Assembly passed the general requirement after it passed the specific requirement and made it clear that the general requirement was intended to replace the specific one, then the court will apply the general requirement, not the specific requirement.

Another illustrative hypothetical: Assume there’s a statute that says applications for a professional license must be filed in triplicate with the appropriate licensing agency. But, the statute for licensing professional caterpillar breeders says a caterpillar breeder may submit a single copy of the license application with the professional caterpillar breeders board. Obviously, a court could not apply both of these statutes; one must prevail. The court would allow the caterpillar breeder to file a single copy of the license application with the board, unless the statute that requires the application in triplicate was passed after the caterpillar breeders’ statute, and the bill for the general licensing statute included a statement of legislative intent that it is imperative to good government that all licensing applications be filed in triplicate.

When Statutes Collide Part II: Later In Time Controls

Sometimes two statutes conflict, not because one is general and the other is specific, but because one prohibits what the other allows or requires. As in other cases, the court will first try to reconcile the differences and give effect to both sections. But, under section 2-4-206, C.R.S., if the differences are irreconcilable – there is a true conflict – the statute that has the latest effective date is the one the court will apply. If both statutes were passed in the same legislative session with the same effective date, the statute that has the latest date of passage will apply.

Again, to illustrate: A caterpillar breeder loses his license because he does not post his license in the front window of the breeding building, as required by House Bill 1705. But, the caterpillar breeder argues to the court that he should keep his license because, under Senate Bill 923, a person who posts anything in the window of an insect breeding facility commits the crime of insect cruelty (papers in the window block the sunlight). The court cannot reconcile the conflict between the two statutes, so it looks to the effective dates of the bills. House Bill 1705 had an effective date clause that said it took effect July 1, 2009. Senate Bill 923 passed in 2009 without an effective date clause and without a safety clause – so it took effect August 5, 2009. Senate Bill 923 took effect last, so it controls. The caterpillar breeder does not have to post his license.

If House Bill 1705 and Senate Bill 923 had both passed without a safety clause and without an effective date clause, they would have both taken effect on August 5, 2009. In that case, the court would look for the date on which the Governor signed each of the bills. If the Governor signed House Bill 1705 on May 3, 2009, and signed Senate Bill 923 on May 4, 2009, the court would apply Senate Bill 923.
February 19, 2016
Ensuring Decorum and Civility in the Legislative Committee Hearing Process
by Dan Cartin

If you attend a legislative committee meeting at the State Capitol, you will see this sign posted in the Senate and House committee room hallways:

Maintaining decorum and civility during the course of legislative committee meetings is the cornerstone of a productive hearing on the bills before that committee. Persons who come to testify on legislation and those who attend a committee hearing to peacefully observe and listen to the proceedings often travel long distances to the Capitol on the day of the hearing. Everyone attending can reasonably expect that the meeting will proceed in an environment of mutual respect among the legislators, witnesses, and audience that is free from disruptions. One commentator has observed that “[p]reventing disturbances at public meetings is essential to achieving the dual goals of fostering citizen participation and ensuring the efficient accomplishment of public business.” (“Civility in Government Meetings: Balancing First Amendment, Reputational Interests, and Efficiency.” 10 First Amend. L. Rev. 51 (2011)) The right to attend and participate in a committee meeting is necessarily balanced with the committee’s right to ensure that its proceedings are not disrupted.

But legislative committee meetings are occasionally disrupted by verbal outbursts, such as cheering, booing, shouting, or applauding, by persons attending the meeting. Signs, clothing, or distracting electronic or photographic equipment may have a similar, if less audible, disruptive effect on the ability of persons to freely testify on legislation. These distractions illustrate the need to balance the public’s right to freedom of speech and to petition the government with the right of the legislative branch and committee witnesses to engage in a process that ensures decorum and civility.

The Colorado constitution, state statutes, and legislative rules all authorize the General Assembly to preserve decorum generally and in legislative committee meetings specifically. Article V, section 12 of the constitution authorizes each house to adopt rules that address disorderly behavior and enforce obedience to its process.

State statute authorizes the Senate and House to adopt rules or joint rules or to authorize the Senate President or the Speaker to adopt regulations protecting the safety of legislators, staff, and the general public. The rules must be “consistent with public convenience, the public’s right of freedom of expression and to peaceably assemble and petition government, and the established democratic concepts of the openness of the legislative process.” This includes the ability to adopt rules:
- Regulating admission to legislative areas;
- Prohibiting signs, banners, placards, and similar display materials without authorization;
- Restricting the placement of television and photographic equipment;
- Authorizing the sergeants-at-arms to clear the committee rooms and the chamber galleries if there is a disturbance that disrupts legislative proceedings or endangers legislators, staff, or the public; and
- Addressing any other matters that may be appropriate for the orderly conduct of the General Assembly’s affairs and protection of the health, safety, and welfare of all the participants in the legislative process.
Senate Rules 22A and 31 and House Rules 23 and 25 address decorum in the chambers and committee rooms. House committee chairpersons are specifically authorized to have a sergeant-at-arms remove persons who impede, disrupt, or hinder a meeting or endanger the meeting’s participants. The Senate does not have a similar rule, but Mason’s Manual of Legislative Procedure, section 805, suggests that Senate committee chairpersons also have this authority. Fortunately, removing a person or persons from a committee hearing for disruptive behavior occurs very rarely.

Before 2013, the Chief Clerk of the House of Representatives and the Secretary of the Senate each developed policies for the use of committee rooms. Each policy prohibits signs, placards, and banners, as well as clothing with words, pins, or buttons that express support or opposition to issues before a legislative committee. During the 2013 legislative session, Senate and House leadership directed staff to post the “Welcome to the Colorado General Assembly” signs in the hallways outside of the Senate and House committee rooms.

Legislative staff have also created a “Guide to Public Hearings” to supplement the signs. It’s available under “General Legislative Information” on the General Assembly’s website.

So, welcome to the Colorado General Assembly! Hopefully, the information in this article will help ensure that, whether you are coming to the Capitol to testify on a bill or just watch a committee meeting, your experience will be respectful, civil, and free from disruption.
February 11, 2016
Statutory Construction: What was the General Assembly Thinking?
by Julie Pelegrin

Editor’s Note: This week’s article is the sixth in our series on statutory construction. For previous installments, click on “statutory construction” in the tag cloud.

If the language of a statute is not plain, the court will try to interpret it by applying various presumptions: The statute is intended to be constitutional; the interpretation should lead to a just and reasonable, not absurd, result; every word matters and should be read in context; the interpretation should not require an impossible task; and the interpretation should benefit the public interest.

Taking all of these presumptions into consideration, the court will next look to the legislative intent: What did the General Assembly intend to accomplish by passing the statute?

Section 2-4-203, C.R.S., specifies several items the court may consider in trying to interpret an ambiguous statute:

Legislative History

In Colorado, the legislative history is somewhat sparse. The General Assembly does not generate long committee reports that explain the intent and research behind each bill as Congress does. In Colorado, the legislative history consists of the various versions of the bill and the amendments considered in committee and on second and third reading. Legislative history also includes the testimony offered on the bill in committee and the debates on the bill. The court may consider witnesses’ and the bill sponsor’s explanations of a bill and what the bill is intended to accomplish.

Legislative Intent

In interpreting an ambiguous statute, the court may also consider the General Assembly’s intent in passing the statute. To understand legislative intent, the court looks to any legislative declarations or statements of legislative intent that were passed with the statute. Although legislative declarations are not binding on a court, they do provide some indication of what the statute is supposed to mean and how it should be applied.

The court may also consider the title of the bill that created or amended the ambiguous statute. In interpreting a workers’ compensation provision, the Colorado Supreme Court held that the statute should be read the same way that certain recommendations by a national commission on workers’ compensation laws were read, because the title of the bill that amended the statute was “Concerning Workmen’s Compensation, and Providing Extended Coverage Necessary to Conform to Essential Recommendations of the National Commission on State Workmen’s Compensation Laws….”

A court may also consider later legislation that amends the underlying statute the court is trying to interpret, but only if the later legislation passes. If the General Assembly introduces a bill to clarify a statute, but the bill doesn’t pass, the court does not consider the intended clarification in interpreting the statute. If the bill does pass, however, it is entitled to “great weight” in construing the original statute.

Circumstances of Legislation

A court may also look to the circumstances that surrounded the adoption of the statute. This is similar to considering the legislative history in that the court considers the explanation a sponsor provides for why he or she introduced a bill. The court may also look at who testified for or against a bill as some indication of the persons the bill was intended to affect. For example, in Gleason v. Becker-Johnson Associates, the court found that a statute was intended to apply to the persons involved in constructing a building, not persons who later inspected the finished building, partly because all of the witnesses were builders, architects, and engineers.

Interpretation by an Administrative Agency

The court will consider how an administrative agency interprets legislation. If an administrative agency is responsible for implementing a statute, and the agency adopts rules or policies that define terms or explain how the agency will apply the statute, a court will give deference to the agency’s interpretation in deciding what the statute means. But the court is not required to follow an agency’s interpretation, and the court will not follow the agency interpretation if it contradicts the plain language of the statute.

The Common Law or Similar Statutes

When interpreting an ambiguous statute, the court may consider how statutes on related or similar subjects are interpreted. The court may also look to the common law on the same subject to help interpret an unclear statute.

The common law is the collection of rules of action and principles relating to the government and the security of persons and property that have arisen from usage and customs over centuries and from appellate court decisions that apply and interpret these rules and principles. The statutes are assumed to follow the common law. If the General Assembly intends for a statute to abrogate or change rights that are available under the common law, the statute must expressly state or very clearly imply that intent.

Interpretation Favors the Person Intended to Benefit

Finally, if the court has gone through the full analysis and it still isn’t sure what the statute means, as a last resort the court will generally resolve the ambiguity in favor of the person or party that the statute is supposed to benefit – consider it the legal equivalent of “tie goes to the runner.” For example:
- Interpretation of ambiguous tax statutes favors the taxpayer;
- Interpretation of ambiguous pension or retirement fund statutes favors the employee;
- Interpretation of ambiguous criminal law statutes favors the defendant; and
- Interpretation of ambiguous workers’ compensation statutes favors the claimant.
February 4, 2016
Gallagher Amendment Reduces Residential Property Tax Bills

by Julie Pelegrin

Recently, every real property owner in Colorado received a property tax bill for 2016. The bill states the actual value of the real property, the assessed value, the number of mills levied by the various local governments with jurisdiction over the property, and, finally, the amount owed. For many persons, their annual property tax bill is one of life’s great mysteries. Who collects this money? How do they calculate the property tax owed? How is real property valued for taxation? What is the Gallagher amendment everyone talks about, and how does it affect property tax? And what is a mill, anyway?

First, the easy part: A primer on property tax.

Counties collect property tax for themselves and on behalf of the other local governments or special districts that are located within each county. When you look at your bill, it will probably have a mill rate for the county, the municipality, the school district, and maybe one or more special districts in which your property is located.

A mill is one-thousandth of a dollar, which means one mill is equivalent to one-tenth of a cent or $0.001. The mill rate is the total number of mills that a local government – or multiple local governments – levies against the assessed value of a piece of property. To calculate your property tax bill, the county treasurer multiplies the assessed value of property by the total mill rate and divides the product by 1,000.

Every two years, each county assessor determines the actual value of all taxable real property located in the county. Under the Taxpayer’s Bill of Rights (TABOR), the county assessor must determine the value of residential property solely by using the market approach to appraisal, which is based on recent sales of comparable properties. The assessor uses market value and other methods to determine the actual value of other taxable real property.

But your property tax bill isn’t based on the actual value of your property; it’s based on a percentage of the actual value, which is called the assessed value. The percentage is called the valuation for assessment ratio, commonly referred to as the assessment rate. There are actually two assessment rates. The assessment rate for residential real property is 7.96% for the 2015-16 property tax year, and the assessment rate for all other taxable real property for every property tax year since 1985 is 29%.

This is how your property tax bill is calculated. The county assessor calculates the assessed value of your residential real property by multiplying the actual value of your residential real property by 7.96%. Then, the county treasurer multiplies the assessed value of your property by the number of mills levied by the local governments where your property is located and divides the product by 1,000, and – voila – you have your property tax bill.

So here’s the hard part: The Gallagher Amendment.

In 1982, the General Assembly referred a constitutional change dealing with property tax to the statewide ballot; the change passed at the general election held that fall. Part of that referred measure is called the Gallagher Amendment, and it controls the assessment rate for residential real property.

The Gallagher Amendment directs the General Assembly to review the assessment rate for residential real property every other year, starting in 1985. The General Assembly was required to look at the total statewide assessed value of all taxable real property in 1985 and calculate what percentage of that total came from taxable residential real property. And for every year since then, the General Assembly must make sure that the percentage of the assessed value of taxable residential real property relative to the assessed value of all other taxable property remains essentially the same.

Part of the constitutional change passed in 1982 set the initial residential real property assessment rate at 21%, subject to subsequent adjustments by the General Assembly, and fixed the assessment rate for all other taxable real property at 29%, with no authority for adjustments. So, to maintain the percentage of assessed value of residential real property relative to the assessed value of all other taxable real property, the General Assembly can only adjust the assessment rate for taxable residential real property. And the adjustment usually lowers the residential assessment rate.

Since 1985, the assessment rate for taxable residential real property has dropped from 21% to 7.96% to keep the proportion of statewide assessed value of taxable residential real property to the assessed value of all other taxable real property at about 46% to 54%.

What’s the real impact of decreasing the assessment rate for residential real property?

A lower assessment rate for residential real property usually means that homeowners and landlords pay less property tax, but it generally has a negative impact on property tax collections by school districts and other local governments (the state does not collect property tax). Most school districts have more residential real property than other real property. So, as the residential assessment rate has decreased, the amount of property taxes that these school districts and other local governments collect has decreased, because the school districts and local governments can’t raise the mill levy to offset the rate decrease without voter approval under TABOR.

Also, in some years, the assessment rate for residential real property should actually have been increased to maintain the proportion of assessed value, but increasing the assessment rate requires voter approval under TABOR. So, in those years, the assessment rate for residential real property has remained unchanged and the amount of property tax revenue that the school districts collect is lower than it otherwise would have been if the residential assessment rate had increased.

All of this means that the state must use more state revenues to pay the costs of public education. It also means that the amount of property taxes collected statewide by local governments has generally decreased, which means the state pays for more services that would otherwise be provided locally.

So, while the Gallagher Amendment helps keep your residential property tax bill down, it decreases the amount of property tax revenues available to pay for local government services and increases the demands on the state budget.

January 21, 2016
Civility is Key to a Successful Legislative Session
by Julie Pelegrin

With the opening of the Second Regular Session of the 70th General Assembly, now might be a good time to spend a few minutes thinking about civility and why it’s important. The Colorado General Assembly actually doesn’t have a problem with civility; the debates under the Gold Dome are, in most instances, very civil and relationships are generally cordial. But the General Assembly is facing many important issues this year and there is significant disagreement on how to address most of them. And it’s an election year. So reviewing what we know about the importance of civility and what civility means is time well spent.

First – what is civility? The Institute for Civility in Government says:

Civility is about more than just politeness, although politeness is a necessary first step. It is about disagreeing without disrespect, seeking common ground as a starting point for dialogue about differences, listening past one’s preconceptions, and teaching others to do the same. Civility is the hard work of staying present even with those with whom we have deep-rooted and fierce disagreements. It is political in the sense that it is a necessary prerequisite for civic action. But it is political, too, in the sense that it is about negotiating interpersonal power such that everyone’s voice is heard, and nobody’s is ignored.

Civil Politics describes their view of civility as:

the ability to disagree productively with others, respecting their sincerity and decency. Civility does not mean agreement. We think citizens are well served when political parties represent different viewpoints and then compete vigorously to recruit voters to their side.

Second – why is civility important? Recently, an organization called FairVote teamed with the Bipartisan Policy Center to look at state legislatures in which one of the chambers was evenly split between Republicans and Democrats and how the chambers made power-sharing work. In their report – Best Practices for Collaborative Policymaking – they looked at the Oklahoma Senate (2007-08), the Oregon House (2011-12), and the Washington House (1999-2001). While tied, each chamber adopted what is called a “co” agreement – pairs of members from each party held the leadership and committee chair positions.

Interestingly, legislators from Oklahoma and Oregon described their time under the “co” agreements as being very productive and cooperative. Legislators in both states remembered these years as times of great bipartisan agreement and civility.

In Washington, however, the legislators remembered their years of power-sharing as a time of gridlock during which few significant bills were passed and partisanship was especially rampant.

Why the difference?

The report concludes that one reason is a difference in how the legislative rules in each state distributed the power to control the agenda. In both Oklahoma and Oregon, the rules ensured that both parties were able to get their legislation on the committee calendar and on the House second reading calendar without being blocked by the other party. In Washington, however, committee co-chairs had to agree to calendar legislation for committee hearings, and each co-Speaker could block consideration of the other party’s legislation on second reading. Each party used this power in retaliation for actions by the other party, leading both parties to feel shut out of the process.

But, in talking with legislators from all three states, the researchers concluded that the relationships among legislators – and especially among the leadership in both parties – were more important to achieving a successful legislative session than the rules. The report quotes political scientist Thom Little, commenting on power-sharing arrangements: “Trust between the leadership of the parties is by far the most important factor. No matter what the rules are, if the two leaders don’t trust each other, it will be a disaster.”

And in Oklahoma and Oregon, where the power-sharing agreements were successful, the researchers found that the co-chairs of committees and the rest of the legislators in the House followed the example of trust and mutual respect set by the co-Speakers. Further, the co-Speakers specifically emphasized civility and cooperation from the beginning of the session.

Even though Colorado’s General Assembly isn’t operating under a power-sharing agreement within a single house, control of the chambers is split between the parties: Republicans hold the majority in the Senate and Democrats hold the majority in the House. This means that relationships of trust, mutual respect, and civility between the leadership in the two chambers and among all of the legislators are the key to a successful legislative session for the entire General Assembly.

In May of 2011, the NCSL Executive Committee adopted a Civility Accord. It sets out six principles of civility:
- Respect the right of all Americans to hold different opinions.
- Avoid rhetoric intended to humiliate, de-legitimatize or question the patriotism of those whose opinions are different from ours.
- Strive to understand differing perspectives.
- Choose words carefully.
- Speak truthfully without accusation and avoid distortion.
- Speak out against violence, prejudice, and incivility in all their forms, whenever and wherever they occur.
And the Accord closes with:

We … pledge to exhibit and encourage the kind of personal qualities that are emblematic of a civil society: gratitude, humility, openness, passion for service to others, propriety, kindness, caring, faith, sense of duty and a commitment to doing what is right.

Good words to keep in mind as the legislative session progresses.
January 14, 2016

How Federalism Shapes the People’s Courts

by Jessica Wigent

In a recent webcast presented by the Council of State Governments, Lisa Soronen, executive director of the State and Local Legal Center, and Paul Clement, a former U.S. Solicitor General, discussed federalism, how it guides our complex judicial system, and how courts’ decisions impact state governments. It’s a useful review as we come to the close of 2015 and look ahead to court cases in the coming year.

Federalism, from the Latin root foedus, or “formal agreement or covenant,” is a system of government where authority is allocated between national and state governments— and for our purposes here, state and federal courts.

Alexander Hamilton, “the ten dollar founding father without a father,” as he is described in the celebrated Broadway play named for him, summed up the usefulness of our system, calling it “a double security to the people,” because if our rights “are invaded by either [our state or federal government], [we] can make use of the other as the instrument of redress.”

So how does this intricate balance of power work?

The federal courts:

Answer constitutional questions (Was a fundamental liberty at stake in the gay marriage debate? The Supreme Court said yes in Obergefell v. Hodges)
Handle interstate tussles (The Supreme Court is currently deciding whether to hear Oklahoma’s and Nebraska’s lawsuit against Colorado over recreational marijuana)
Step in when Congress passes a law some say is murky (What did Congress really mean to say about subsidies and federal and state health exchanges in the Affordable Care Act? The Supreme Court answered this question in King v. Burwell)
Hear cases where the United States is suing or being sued (Remember when then-President Richard Nixon tried to tell the New York Times and the Washington Post they couldn’t publish the then-classified Pentagon Papers? In New York Times Co. v. United States, the Supreme Court said the First Amendment protected the paper’s right to publish the documents detailing the country’s involvement in Vietnam)

And the state courts? Well, they decide (almost all of) the rest—from traffic tickets to whether awarding state-funded tuition scholarships to students who attend sectarian schools violates the Colorado Constitution. (Whether the latter violates the First Amendment of the U.S. Constitution is an issue the federal courts would have to decide.)

The structures of the federal and state courts are fairly similar:

Level	Colorado State Level Courts	Federal Level
Lower courts (hold trials, make findings of fact and law)	County and district courts, scattered throughout 22 judicial districts across the state, and specialized courts (like our seven water courts)	U.S. District Court, District of Colorado
Intermediate courts (hear appeals from the lower courts)	Colorado Court of Appeals	10th Circuit Court of Appeals
The high court (hears appeals from the intermediate courts, sometimes)	Colorado Supreme Court	U.S. Supreme Court

So we’ve got the levels down; we know which cases end up in which court. Now, how do cases get decided?

Again, both state and federal courts work similarly. As Soronen explained, the courts use a hierarchy of laws when making their decisions. First, they look to the (federal and/or state) constitution, then to statutes passed by the Congress/legislature, then to rules and regulations created by administrative agencies (like the I.R.S. or the Colorado Department of Education), and, finally, they look to case law and common law.

The law develops through the expansion of case law—as courts answer more and more questions and make rulings on certain issues, they have more and more references to turn to and follow when considering their decisions. This is called applying precedent—or stare decisis, meaning Let it Stand!—and it is (usually) the guiding principle of our judicial system, aiding both we the people and the courts in many ways:

It’s efficient
It’s fair
It gives the system predictability
It’s a check on arbitrary behavior

So when does precedent apply? Lest you think we forgot the title of this post (we are supposed to be talking about federalism after all) the precedent of a state court applies just to that state’s courts. If the Colorado Supreme Court says it tastes like chicken, so do the Colorado Court of Appeals and the county and district courts. But whatever it tastes like in California or New Jersey or Texas doesn’t affect what it tastes like in Colorado. In the federal system, the same hierarchy applies within the districts and circuits, except that, when the U.S. Supreme Court says it tastes like chicken, every court in our fair land—state and federal— says it does too.

Soronen explained that state courts are not bound by interpretations of federal law made by the federal district courts or federal courts of appeals, even in the same state! And this means? Judges in state courts throughout Colorado aren’t bound by rulings made by a judge from the U.S. District Court, District of Colorado or the Tenth Circuit Court of Appeals. This can get ~~confusing~~ fun (States interpret state and federal law! Federal courts can’t tell state courts what to do!) and is a product of the philosophical compromise of our Founding Fathers that led to our federalist system of government.

We Coloradans would do well to understand how federalism and the courts work, so we can better understand why TABOR has been challenged in both state and federal courts, why our friendly state neighbors to the east and southeast are suing us over marijuana in federal and not state court, and why, at least for now, our school voucher cases have only been heard in state court.

At the Constitutional Convention in 1787, Delaware Delegate John Dickinson famously said: “Let our government be like that of the solar system. Let the general government be like the sun and the states the planets, repelled yet attracted, and the whole moving regularly and harmoniously in several orbits.” What we ended up with is more complicated than what he envisioned, but it’s a system, and it’s ours.

December 31, 2015

Court Continues Consideration of S.B.191 Provisions for Unpaid Leave
by Julie Pelegrin

Before 2010, a teacher who was employed by a Colorado school district for three consecutive years automatically earned the status of nonprobationary teacher, which means the teacher could be dismissed only for certain reasons specified in statute and only after receiving notice and a hearing. With changes made to the law in 2010 by Senate Bill 10-191 (S.B. 191), a nonprobationary teacher can now be placed on indefinite unpaid leave for certain specified reasons – but the statute doesn’t require notice and a hearing. How is indefinite unpaid leave different from being dismissed? The Colorado Court of Appeals recently considered that question.

S.B. 191, which mainly focuses on evaluations for teachers and principals, also includes language about teacher employment. Specifically, the act amends §22-63-202, C.R.S., to say that a teacher cannot be placed at a school unless the school principal agrees to the placement after getting input from at least two of the school’s teachers. This requirement is commonly known as the “mutual consent” provision.

S.B.191 also allows a school district to remove a nonprobationary teacher from the classroom for certain specified reasons. The nonprobationary teacher can apply for a vacant position at a different school, but the mutual consent provision applies. If the nonprobationary teacher cannot secure a mutual consent placement within the longer of 12 months or two hiring cycles, the teacher goes on indefinite unpaid leave. After that, if the teacher secures a mutual consent placement, the school district will resume the teacher’s salary and benefits at the level they would have been if the teacher had not been on unpaid leave.

In January of 2014, the Denver Classroom Teachers Association (DCTA) and five nonprobationary teachers employed by Denver Public Schools (DPS) filed a lawsuit against DPS and the State Board of Education claiming that placing a nonprobationary teacher on unpaid leave as allowed in S.B.191 is unconstitutional. All but one of the nonprobationary teachers were removed from their schools under the S.B.191 provisions. Three of the five teachers were placed on indefinite unpaid leave after being unable to secure mutual consent placements.

The suit makes two claims:
1. The teacher employment statute creates a private contract between the teachers and the school district; the unpaid leave provisions unconstitutionally interfere with that contract; and
2. The teacher employment statute creates a property interest in continued employment for nonprobationary teachers. Placing a nonprobationary teacher on indefinite unpaid leave is essentially the same as dismissing the teacher. So, the provisions that allow the school district to place the teacher on indefinite unpaid leave without giving the teacher due process – notice and a hearing – take away the teacher’s property interest in continued employment in violation of the due process clause of the constitution.
Last March, the state Attorney General and the lawyers for DPS filed a motion to dismiss the lawsuit on the basis that the teachers and the DCTA did not state any claims for which the court could grant relief. The trial court agreed and granted the motion to dismiss in June.

The teachers and the DCTA appealed the trial court’s dismissal order to the Colorado Court of Appeals. And in November, the Court of Appeals reversed the trial court’s order and sent the case back to the trial court for further proceedings.

On the first claim, the trial court recognized that there is a presumption that a statute does not create private contract rights; a statute creates policy that the General Assembly can later change. A person can overcome that presumption by showing that, in passing a statute, the General Assembly actually intended to create private contract rights. But the trial court did not think the teachers and the DCTA had provided any evidence that the General Assembly intended to do that when it passed the teacher employment statutes.

The Court of Appeals disagreed with the trial court. The Court of Appeals looked not just at the current teacher employment law, but at the previous law as well. The Court of Appeals opined that the current teacher employment law is not significantly different from the previous law: The previous law granted a teacher “tenure” after three years of continuous employment and the current law grants a teacher “nonprobationary status” after three years of continuous employment. In the opinion of the Court, “tenure” and “nonprobationary status” are synonymous because they both guarantee dismissal only for cause and only after notice and a hearing.

There is Colorado case law that holds that the previous teacher employment law created private contract rights. Based on this, the Court of Appeals found that the teachers and DCTA have overcome the presumption against creating contracts, and the current teacher employment statute does create a contract between teachers and the school district. Now the trial court must decide whether the S.B.191 provisions substantially impair the contractual relationship and whether the impairment is justified because it is reasonable and necessary to serve an important public purpose.

The Court of Appeals also disagreed with the trial court on the second claim: The S.B.191 provisions that allow a school district to place a nonprobationary teacher on indefinite unpaid leave do violate constitutional due process requirements. The trial court had said that being on indefinite unpaid leave is not the same as being fired; the S.B.191 provisions simply change the rights that accompany employment, they don’t take the right to continued employment away.

The Court of Appeals agreed that, since a person can come back from indefinite unpaid leave at the same salary level, being on indefinite unpaid leave is not the same as being fired. So the teachers who were placed on indefinite unpaid leave were not deprived of the property right of continued employment. But, the Court found that when a teacher is placed on unpaid leave, the teacher’s expectation of continued employment is “disappointed” because the teacher is not working or getting paid. A Colorado Supreme Court case interpreting the previous teacher employment law held that a teacher who is placed on unpaid leave has a right to a hearing to decide whether the teacher was truly placed on unpaid leave for a reason authorized in the statute and whether the placement was made in an arbitrary or unreasonable fashion. Based on this case, placing the teachers on unpaid leave without a hearing, as allowed by the S.B.191 provisions, does deprive teachers of their constitutional due process rights.

On December 17, 2015, the Attorney General’s office and the attorneys for DPS filed a petition for certiorari, requesting the Colorado Supreme Court to review the Court of Appeals decision.
December 18, 2015
How Did We Get Here? Tips for Researching Legislative History
by Julie Pelegrin

As legislators, lobbyists, and stakeholders turn their attention to preparing bills for the 2016 legislative session, many may wonder, “Is this really a new idea, or has someone tried this before?” Or maybe someone’s looking to strengthen an existing statute and wondering, “When did they first pass this statute, and has it always had these problems?” The answers to these questions are easily found with just a bit of research. The key is knowing where to look.

Bill Title Histories

Every bill introduced in every regular and special legislative session since 1997 is available on the General Assembly’s website under “Session Information – Prior Sessions.” The bills are organized by year, and the database of each year’s bills is searchable . You can also search for a keyword or phrase by clicking “Search” near the top of the page.

A legislator may also ask a drafter to search the OLLS database of bill and resolution titles, which goes back to 1999. This search identifies bills and resolutions that included a particular term or phrase in their titles.

Legislative History

Just knowing whether a bill has been introduced to address your topic is not enough. It’s also helpful to know how the bill was amended, who testified for or against it, what issues were debated, and whether the bill passed. This information is also available, but it takes a bit of digging.

Once you find a bill using your search term, you can access:
- All versions of the bill;
- The history of the bill, which lists the committees the bill was assigned to, each action taken on the bill, and the date of each action;
- All versions of the fiscal note written for the bill;
- All of the committee reports on the bill, including the vote tallies for each report; and
- The third reading vote tallies for the bill. When you click on the third reading vote link, it takes you to the House or Senate Journal page for the day on which the House or the Senate voted on the bill on third reading. You may need to scroll through the page to find the bill you’re looking for.
To find a summary of a committee hearing on a bill, click “Committees” at the top of the page. Next, click “Summaries by Bill,” then select your bill, and you will see the bill summaries for each committee of reference that heard the bill. Click “Bill Summary,” and you will see a short summary of the bill discussion, any testimony provided on the bill, the amendments that were offered, the vote tally on each amendment, and the final vote tally.

Each bill summary also shows the date of the committee hearing and the times at which the bill sponsor spoke, witnesses testified, and the committee took action on the bill. This is important information if you want to listen to the testimony or debate. The state has recordings of committee hearings going back to 1973. To get a recording of committee testimony and debate, contact the Legislative Council Staff at 303.866.3521. To listen to a committee hearing before 2002, you must contact state archives.

You may also be able to watch or listen to the floor debate on a bill. Use the bill history to identify the date on which a bill was considered on second or third reading. Then, on the General Assembly homepage, click “Audio and Video Broadcasts” under “Session Information.” Then click the Colorado Channel home page link, click the button for archived legislative sessions, and follow the directions. Unfortunately, the video and audio recordings of floor sessions only go back to the 2010 session.

Source Notes

If you want to know when a statute was originally enacted and how it’s been changed since then, you must check the statute’s source note.

Every section of the Colorado Revised Statutes has a source note immediately following the text that indicates the year the section was added, any year in which it was changed, which provision of the section was changed, where in the Session Laws to find the bill that made the change, and the effective date of the change. For more of the specifics on interpreting source notes, see page vi at the beginning of each printed volume of the Colorado Revised Statutes or check out this memo on the OLLS home page. There’s also a very handy chart for decoding source notes.

If the source note tells you that your section has been amended, use the reference to the Session Laws to look up the bill that amended the section. For example, if the source note says “L.2015: (1)(c) amended, ch. 12, p. 27, §1, effective March 31,” open the 2015 Session Laws of the State of Colorado to page 27 and you’ll find the bill that amended the section. Or open the 2015 Session Laws on-line through the General Assembly website and click on chapter 12. Since 2009, the legislative editors in the OLLS have also included in each source note the number of the bill that adds, amends, or repeals a statute. If you’re checking the statutes on-line, the bill number is hyper-linked to the bill itself.
December 10, 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

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

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

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.

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

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).

October 29, 2015