Colorado LegiSource

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

Author: olls

When is it the Government’s Speech: A Tale of Two Messages
by Jery Payne

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

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

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

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

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

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

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

Some of you may be wondering how a private group trying to get a license plate results in government speech. Who is really advocating under these circumstances—the private group or the government? Among the special license plates are these slogans:
- Get it Sold with RE/MAX
- I’d Rather Be Golfing
- University of Oklahoma
The dissent pointed out it seemed a little strange to argue that the State of Texas had decided that RE/MAX was their realtor of choice or that it’s better to be golfing than working or even playing football. Speaking of football, it may be well-nigh treason in the Lone Star State to endorse the University of Oklahoma given its deep rivalry with the University of Texas. To the dissent, special license plates display the speech of the car owners who choose them, not of Texas.

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

It’s not often that the Supreme Court decides cases based on factual distinctions. And given that they don’t find facts, it’s even rarer that the Court would overturn two lower decisions based on the facts. But I don’t see how else you can understand this decision. The facts of this case are in a grey area; special license plates may be reasonably seen both as private speech and government speech. So a line had to be drawn, and the Court drew it just this side of license plates because license plates are issued by the government. And people may think the government is endorsing the message on the plate.
October 22, 2015
What Happens to a Statute Declared to Be Unconstitutional

by Jennifer Gilroy and Michele Brown

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

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

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

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

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

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

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

October 8, 2015
Supreme Court Uses Negative Factor to Provide Tutorial on Constitutional Interpretation

by Julie Pelegrin

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

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

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

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

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

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

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

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

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

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

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

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

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

But the Court found that

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

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

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

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

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

September 24, 2015
The Uniform Law Process Takes its Time

by Patti Dahlberg and Thomas Morris

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

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

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

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

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

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

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

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

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

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

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

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

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

September 17, 2015
An Update on Special License Plates

By Jery Payne

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

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

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

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

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

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

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

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

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

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

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

This approach may avoid trouble.

September 10, 2015
Emily Griffith: Our Lady of Education

by Darren Thornberry

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

Courtesy of Kristal Kraft

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

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

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

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

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

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

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

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

September 3, 2015
On the Events of 800 Years Ago

by Jery Payne

By 1215, King John (of Robin Hood fame) had made just about everybody mad. He raised taxes and regularly levied huge fines on trumped-up charges. He seduced several of his subject’s wives and daughters — saying “no” to the king’s advances wasn’t wise. He murdered his nephew Arthur of Brittany. He starved a mother and son to death in the same cell. And he captured and killed scores of hostages. The Pope had even excommunicated him.

Many of the lords were so sick and tired of being abused that they rebelled, which usually ended up with a new king sitting on the throne. But someone (believed to be the Archbishop of Canterbury) had another idea: Why not make the king obey the law?

So on a muddy field at Runnymede, England, these lords forced the king to sign a treaty that limited his powers.

This treaty contained some interesting ideas. One provision required King John to “at once return the son of Llywelyn, [and] all Welsh hostages.” That may not have exactly reverberated throughout the ages, but probably was a relief to Llywelyn — who, incidentally, was John’s son-in-law. (Remember that the next time you bemoan the in-laws—at least they’re not holding your child hostage!)

Clause 40 held wider application: “To no one will we sell, to no one deny or delay right or justice.” A nice idea, but clause 39 got more specific about how that would be enforced:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

The medieval world had used trials and juries for some time, but this treaty made due process of the law a right.

Now it wasn’t always obeyed, and King John tried to repudiate it. But this idea of basic fairness wouldn’t go away. John’s son, Henry III, was forced to obey it. And in Britain, clause 39 is still in effect and still guarantees people the due process of the law.

At the time, the treaty was called the “Runnymede Charter,” but over time it became known as “Magna Carta” — Latin for “The Great Charter.”

By JJ Harrison (jjharrison89@facebook.com) (Own work.) [Public domain], via Wikimedia Commons
But the Magna Carta’s greatest legacy isn’t the idea of due process; its greatest legacy lies in the idea that a king (or president or governor) can be made to obey a document. Those lords had actually created a type of constitution.

One of the lords who confronted King John on that muddy field was Saer de Quincy, the Earl of Winchester. Five centuries later, Saer de Quincy’s descendant, Josiah Quincy, went to London to warn another English king, George III, that another revolution was brewing and it would cost England her American colonies if she did not grant the colonists the same rights and privileges enjoyed in England. The Declaration of Independence accuses King George of “depriving us in many cases, of the benefits of Trial by Jury,” which violated the Magna Carta. And John Adams agreed: “[H]ave not our kings broken magna carta thirty times?”

Quincy’s warning failed to convince the king. Quincy’s home, Massachusetts, and 12 other colonies, declared independence. This let to the Massachusetts Assembly appointing Quincy’s cousin, John Adams, to draw up the first constitution in the Americas.

John Adams wanted to make sure Massachusetts’s governors weren’t above the law. Not only did Adams draw inspiration from clause 39, but the very act of drafting a constitution can be traced to the precedent set by the Magna Carta. Adam’s constitution became very influential. The United States and 9 of the 13 states used Adam’s constitution as a model.

Interestingly, the monument in Runnymede commemorating the Magna Carta was actually dedicated, not by a British group, but by the American Bar Association.

After all, there wouldn’t be much point to a state legislature if the Governor didn’t feel the need to bother about the law.

Happy 800th anniversary Magna Carta!

August 20, 2015
U.S. Supreme Court Holds Federal Tax Subsidies Apply to Both Federal and State-run Health Exchanges
by Kristen Forrestal

On June 25, the United States Supreme Court announced its decision in favor of the government in King v. Burwell. The case, which could have unwound the Patient Protection and Affordable Care Act (ACA), involved a challenge to the 2012 IRS ruling that individuals purchasing private health insurance in health insurance exchanges, regardless of whether the exchanges are federal or state-run, are eligible for tax subsidies.

Signed into law on March 23, 2010, the ACA adopted three key reforms:
- A ban on insurers taking into account a person’s pre-existing conditions when selling health insurance or calculating premiums;
- The creation of a mandatory health care provision requiring most Americans to purchase health insurance; and
- Refundable tax credits to individuals purchasing insurance whose household incomes fall between 100% and 400% of the federal poverty level.
The ACA also requires that states either establish their own exchanges in which people can purchase health insurance or, in the alternative, allow the people to purchase insurance in the federal exchange.

The central issue of the Burwell case was whether the ACA’s interlocking reforms apply equally in each state, and, more specifically, whether the act’s tax credits are available in states using the federal, and not a state-run, exchange.

The plaintiffs, from Virginia, challenged a section of the ACA that describes the meaning of premium assistance or the subsidies for taxpayers who purchase qualified health plans “through an Exchange established by the State.” They suggested that limiting subsidies to only those who bought insurance on state exchanges was an intentional choice made by lawmakers and was meant to pressure states to establish exchanges.

Arguing that they were ineligible for subsidies because Virginia had not established a state exchange, the plaintiffs claimed that they should be exempt from the ACA’s mandatory coverage requirements because the cost of health insurance would exceed 8% of their household incomes, qualifying them for a hardship exemption (and freeing them from paying a fine for not having health insurance).

The Court’s task was to determine the correct reading of the law. If the statutory language was plain, the Court would enforce it according to its terms. If not, the Court would read the words in their context and with a view to their place in the overall statutory scheme.

Warning that provisions may seem plain when viewed in isolation but ambiguous when read in the broader context of the statute, the Court explained that the meaning of “established by the State” was not so clear.

According to the Court, the provision that establishes a federal exchange for states that do not establish their own suggests that state and federal exchanges are equivalent. Additionally, the Court noted that several other provisions of the ACA assume subsidies are available on both state and federal exchanges.

The Court also criticized the “more than a few” examples of “inartful drafting” throughout the act, noting that several key parts were written behind closed doors rather than through the traditional legislative process and that a complicated budgetary procedure limited opportunities for public debate and amendments.

In the end, the Court rejected the plaintiffs’ interpretation of the law, stating that limiting subsidies to only those persons on state exchanges would destabilize the individual insurance market, because many individuals who couldn’t afford health insurance without the subsidies would be exempt from purchasing it. These consequences, Chief Justice John Roberts wrote, would create an economic death spiral and were exactly what the law was meant to avoid, as “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”

It is important for lawmakers to note an additional outcome of the Court’s decision is that a future presidential administration cannot change the ruling of the Court (for instance, by reinterpreting how the subsidies are offered) without changing the act itself.
August 13, 2015
Statutory Construction: Legislative Intent and the Presumptions Used to Interpret Statutes

by Julie Pelegrin

Editor’s Note: This week’s article is the fifth in a series on statutory construction. For the earlier articles, see postings on Sept. 12, 2013; and July 31, August 21, and September 18, 2014. Or search the term “statutory construction”.

As has been discussed in previous articles, when a court must apply a statute to the facts and decide what the statute means, it will first look to the plain language of the statute. Assuming the statute is clear and unambiguous, the court will not use any other tools or rules to interpret the statute; if the language is plain, then the statute means what it says.

But, if the language is not plain and the statute could be read to have more than one meaning or application, then the court will look to the General Assembly’s intent in enacting the statute.

In part 2 of article 4 of title 2, C.R.S., the General Assembly enacted several guides to help the courts – and individuals and state agencies – read the statutes and determine what the General Assembly intended to allow or prohibit. This week’s article looks at legislative intent, including the general intent that statutes apply to future actions and events.

General intentions in enacting statutes: §2-4-201, C.R.S.
Under section 2-4-201, C.R.S., every statute is based on five underlying presumptions:

1. The statute is intended to be constitutional with regard to both the United States and Colorado constitutions;
2. Every part of the statute is intended to be effective – no superfluous words or sections;
3. When implemented, the statute is intended to have a just and reasonable result;
4. The statute is intended to be feasible – i.e., someone is supposed to be able to implement the statute; and
5. If implementing the statute one way will benefit the public interest and implementing it another way will benefit a private interest, the General Assembly intends to benefit the public interest.

In applying these presumptions, the courts have taken some of them one or two steps further. A court not only presumes that a statute is constitutional, if a person claims that a statute is not constitutional, the court requires that person to prove the statute’s unconstitutionality beyond a reasonable doubt. And, if a court can read a statute two ways – a constitutional way and an unconstitutional way – it must choose the constitutional reading.

Every word in every statute is supposed to have meaning and be effective. To apply this presumption, the courts read the parts of each statutory section, part, and article as a whole and interpret the various portions consistently with one another. If it appears that portions of a statute conflict, the court will try to harmonize those portions and, as much as possible, give a consistent and sensible effect to every portion.

The courts have added a presumption of their own with regard to the words in statutes. The court presumes that, when it amends or creates a statute, the General Assembly acts with deliberation and full knowledge of any previous case law interpreting or defining the words used in that area of the statutes. If the General Assembly uses the same words that the court has previously interpreted in a related area of statute, and does not clarify that it intends to change the interpretation of the words, the General Assembly is presumed to agree with the court’s earlier interpretation. If the General Assembly amends a statute that a court has previously interpreted, the court assumes that the General Assembly agrees with the court’s interpretation of any portion of the statute that it does not amend.

The statutes are intended to have a “just and reasonable result” and are intended to be implemented. So, a court will interpret a statute according to the General Assembly’s intent, rather than according to a literal interpretation of the words, if the literal interpretation would defeat the General Assembly’s intent or lead to an absurd result. And a court will not interpret a statute in a way that requires an impossible task.

Obviously, these presumptions sometimes conflict with one another. In that case, the court decides how to balance the competing presumptions in the best way possible to meet the General Assembly’s intent in passing the statute.

Statutes are Presumed to be Prospective: §2-4-202, C.R.S.
Section 2-4-202, C.R.S., is short and relatively clear: “A statute is presumed to be prospective in its operation.” So, unless the General Assembly specifically says differently, each new statute and amendments to existing statutes apply only to the actions and events that occur on or after the date that the statute takes effect. See “When Does an Act Become a Law? It depends.” for an explanation of when an act takes effect.

But the General Assembly in certain cases will specify that an act take effect on a date that is earlier than the date on which the act passes or that the act applies to actions or events that occur before, on, or after the effective date of the act. See “Ex Post Facto Laws, Effective Dates, and Legislative Time Travel” for an explanation of the constitutionality of retroactive laws.

July 30, 2015
U.S. Supreme Court Settles Legality of Same-Sex Marriages
by Debbie Haskins

In a landmark ruling issued on June 26, 2015, the United States Supreme Court ruled in Obergefell v. Hodges (pronounced “OH-ber-guh-fell”) that the right to marry is a fundamental right under the U.S. Constitution. In a 5-4 decision, written by Justice Anthony Kennedy, the Court held that:
1. States cannot ban same-sex marriages and are required, upon request, to issue a marriage license to two people of the same sex; and
2. States must recognize a marriage between two people of the same sex if the marriage was lawfully licensed and performed in another state.
Justice Kennedy based the majority opinion on four principles:
- The right to personal choice regarding marriage is inherent in the concept of individual autonomy;
- Same-sex couples have the same right as opposite-sex couples to enjoy intimate association;
- Marriage safeguards children and families, and the right to marry cannot be conditioned on the capacity or commitment to procreate;
- Marriage is a keystone of the nation’s social order from which no one should be excluded.
Having found marriage to be a fundamental right, the Court next considered whether the challenged law unconstitutionally infringes on this right. The Court concluded that state laws preventing same-sex marriage are unjustified infringements on the fundamental right to marry under the due process and equal protection clauses of the 14th amendment to the U.S. Constitution.

In its opinion, the Court reviewed the history of marriage, noting that “after years of litigation, legislation, referenda, and the discussions that attended these public acts, the States are now divided on the issue of same-sex marriage.” The majority rejected the dissent’s argument that sufficient debate had not occurred in the country to make this decision at this time. Justice Kennedy wrote, “Individuals need not await legislative action before asserting a fundamental right.”

As a result of this decision, every state statute or state constitutional provision that bans same sex-marriage is now invalid.

The Rise and Fall of DOMA Laws

As Justice Kennedy noted, the public debate about same-sex marriage laws has been on-going in this country for the last two decades. In 1993, the Hawaii Supreme Court ruled that a law denying same-sex couples the right to marry violated the state’s constitutional equal protection guarantees unless the state could show a “compelling reason” for this discrimination. After the Hawaii decision raised the possibility that states would start recognizing same-sex marriage, several state legislatures adopted statutes or amended their constitutions to define marriage as a relationship that could only exist between a man and a woman. These laws are referred to as “Defense of Marriage Acts” or “DOMA.” Congress enacted a federal DOMA law in 1996, which limited the availability of over 1000 federal benefits to only those marriages that consist of a relationship between one man and one woman as husband and wife. According to the National Conference of State Legislatures, by the end of 2000, 40 states had either adopted a DOMA-type statute or constitutional provision or both. Colorado adopted its DOMA statute in 2000, and Colorado voters approved a DOMA constitutional provision in 2006.

However, in the last ten years, opinions about same-sex marriage have been changing. Eleven states and the District of Columbia have now enacted legislation authorizing same-sex marriage. On June 26, 2013, the U.S. Supreme Court struck down the federal DOMA law in U.S. v. Windsor holding that the restrictions on federal benefits violated equal protection and due process for same-sex couples who were legally married in a state that recognized same-sex marriages. In that decision, also written by Justice Kennedy, the Court emphasized that states have the power to define marriage. On the same day, the Court also held that the proponents of Proposition 8, a voter-approved ban on same-sex marriage in California, did not have the legal right to defend the measure in court. Although based on the technical issue of standing, the decision in Hollingsworth v. Perry made same-sex marriages legal in California.

After these decisions, same-sex marriage bans toppled in state and federal courts across the country. Federal appeals courts in the Fourth, Seventh, Ninth, and Tenth Circuits all ruled that state bans on same-sex marriage are unconstitutional. The U.S. Supreme Court refused to hear appeals in these cases on October 6, 2014, causing the Colorado Attorney General to declare that all legal barriers to same sex marriages in Colorado, which is in the Tenth Circuit, were removed. As a result, same-sex marriages became legal in Colorado on October 7, 2014.

Meanwhile, the Sixth Circuit Court of Appeals upheld DOMA laws from Kentucky, Michigan, Ohio, and Tennessee, creating a split among the circuits in the country. Often when there is a circuit split, the U.S. Supreme Court will grant certiorari to resolve the matter, as it did in Obergefell.

By the time the U.S. Supreme Court heard the Obergefell case from the Sixth Circuit, same-sex marriage was legal in the United States in 37 states either because of state or federal court decisions or because of state statutes authorizing same-sex marriage. As a result of the Obergefell decision, same-sex marriage is now legal in the entire country.
July 23, 2015