Colorado LegiSource

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

Author: olls

  • What Happens to a Statute Declared to Be Unconstitutional

    by Jennifer Gilroy and Michele Brown

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

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

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

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

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

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

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

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

    by Brita Darling

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    by Julie Pelegrin

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

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

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

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

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

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

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

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

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

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

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

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

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

    But the Court found that

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

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

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

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


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

  • The Uniform Law Process Takes its Time

    by Patti Dahlberg and Thomas Morris

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

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

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

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

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

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

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

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

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

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

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

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

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

  • An Update on Special License Plates

    By Jery Payne

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

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

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

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

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

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

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

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

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

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

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

    This approach may avoid trouble.

     

  • Emily Griffith: Our Lady of Education

    by Darren Thornberry

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

    Emily Griffith Stained Glass Window
    Courtesy of Kristal Kraft

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

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

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

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

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

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

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

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

  • Court Prohibits Innovation Designation For New Schools

    by Jeremiah Barry

    A school district may create new schools that include several innovative approaches to providing education, but the Colorado Court of Appeals in Denver Classroom Teachers Assoc. v. City and County of Denver School District No 1, recently ruled that these new schools cannot be automatically designated as “schools of innovation,” they cannot implement innovation plans as described in statute, and the State Board of Education cannot waive state statutes identified in the innovation plans.

    In 2008, the General Assembly passed the Innovation Schools Act of 2008 (“Act”). The Act is designed to authorize administrators, teachers, or parents to design a school that implements innovations to improve the education of its students. The innovations may include changes in school staffing; curriculum and assessments; class scheduling; or faculty recruitment, employment, evaluation, and compensation. An innovation plan may identify certain school district or state rules and the terms of collective bargaining agreements that would need to be waived for the school to implement its innovation plan.

    The Act requires an innovation plan to meet several requirements before a school board may approve the plan. Most important for the Denver Classroom Teachers Association case, an innovation plan must include evidence that a majority of the administrators employed at the public school, a majority of the teachers employed at the public school, and a majority of the school accountability committee consent to the designation as an innovation school.

    After the State Board of Education approves a school’s or school district’s innovation plan, the innovation school or district must seek the approval, by secret ballot vote, of at least 60% of the members of a collective bargaining unit who are employed at the innovation school for any waivers of the collective bargaining agreement that are necessary to implement the plan.

    The City and County of Denver School District No. 1 (“District”) approved innovation plans for two existing schools and complied with all of the requirements of the Act. The District also approved 11 innovation schools at issue in the suit. The schools were either new schools established because of population growth in certain areas of Denver or new schools replacing existing schools that were in turnaround or redesign status because of failure to meet performance targets. At the time that the District and the State Board of Education approved their innovation status, the schools did not yet have teachers or accountability committees, so the innovation plans did not include evidence of the consent of the teachers, administrators, and parents. And there were no members of a collective bargaining unit to approve waivers of a collective bargaining agreement. The District obtained the required consents and votes only after the District and the State Board approved the innovation plans and as teachers and administrators were hired for the new schools.

    The Denver Classroom Teachers Association (“Association”) filed suit alleging that the schools should not have been given innovation status due to the lack of consent and that the innovation plans could not be implemented because of a lack of the collective bargaining unit votes required by the Act. The District countered that it was impossible to obtain these approvals and votes when there were no teachers or administrators yet employed at the schools and no parents of students from which to form accountability committees. The District argued that the later consents constituted substantial compliance with the Act.

    The Colorado Court of Appeals ruled in favor of the Association and remanded the case back to the district court to fashion a remedy. While the Court of Appeals acknowledged that in certain cases, substantial compliance might be sufficient, it looked at the Act as a whole and gave special consideration to the legislative declaration found in section 22-32.5-102 (1), C.R.S. Specifically, the Court of Appeals found that the District’s approach was inconsistent with the intent that faculty employed at a school “have the maximum degree of flexibility to determine the most effective manner in which to meet their students’ needs” and that parents of students have “great opportunity for input regarding the educational services their children receive.” The Court of Appeals concluded that if the prior approvals are not required, “teachers and parents have no opportunity for input [and] can only agree or not agree to teach or have their child attend a school for which the innovation plan has already been finalized.”

    So for now, while a new school may be innovative, it apparently cannot be a school of innovation.

  • 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
    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!

  • 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.

  • The Uniform Law Commission Works to Promote Uniformity of Law Among the States

    by Patti Dahlberg and Thomas Morris

    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 and held its first convention in 1892. Every state has enacted a law to authorize the appointment of state representatives or “commissioners” to the ULC, each of whom must be an attorney. The commissioners meet annually to “consider state laws, determine in which areas of the law uniformity is important, and … draft uniform and model acts for consideration by the states.” By 1912, every state had designated commissioners and was participating in the ULC. Operating for more than 120 years, the ULC is the nation’s oldest state governmental association.

    Since its inception in the 1890s, the ULC has drafted more than 300 uniform laws on numerous subjects and in various fields of law. Examples of uniform acts include the Uniform Commercial Code, Uniform Probate Code, Uniform Child Custody Jurisdiction Act, Uniform Partnership Act, Uniform Anatomical Gift Act, Uniform Limited Partnership Act, and Uniform Interstate Family Support Act. More than 100 uniform laws have been adopted by more than one state, and Colorado has enacted more than 100 uniform laws.Uniform vs. model

    The ULC’s stated mission is to provide states with non-partisan, well-conceived, and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. Its goal is to simplify the legal life of businesses and citizens by providing rules and procedures that are consistent from state to state.

    In addition, the ULC sees itself as an efficient mechanism benefitting all of the states, not only because the almost 400 commissioners are willing to donate their time and energy to the uniform law movement, but also because participation in the ULC represents a cooperative effort by all of the states. Equally important to the ULC is that it offers a means to strengthen the role of state law within the federal system. As new technology evolves and increasing mobility increases cross-boundary legal effects, consistency in rules and procedures becomes ever more critical.

    The ULC and the uniform law process also:

    • Provides rules and procedures that are more consistent from state to state but that also reflect the diverse experience of the individual states;
    • Proposes statutes that are representative of state experience, because the organization is made up of representatives from each state and appointed by state governments;
    • Helps to keep state laws up-to-date by addressing important and timely legal issues;
    • Reduces the need for individuals and businesses to deal with different laws as they move and do business across state lines;
    • Facilitates economic development and provide a legal platform for foreign entities to deal with U.S. citizens and businesses;
    • Draws on the expertise of commissioners through a deliberative and open drafting process; and
    • Incorporates input from legal experts, advisors, and observers representing the views of other legal organizations or interests.

    Uniform law? Really?
    Although called a “uniform law” and approved by the commissioners at their annual conference, a uniform law adopted by the ULC is not law anywhere in the United States. It is actually a legislative proposal addressed to 50 state and three territorial legislatures. As with any legislative proposal, a legislature may alter draft language to “fine tune” the proposed uniform law to better fit an individual state or territory’s current law or needs or other special local conditions. So even when considered “uniform,” there may be variances in the law from state to state. In addition, uniform laws, like all state laws, may be revised from time to time to keep up with changing conditions and policies within that state.

    So what’s the point if uniform laws are not always uniform?
    While uniformity is the original aim of the ULC and its process, law revision or reform has become a significant outcome as well. The ULC also considers topics for legislation where state-to-state variance does not create a serious problem for conducting business or interstate mobility. In addition, the ULC may consider proposals to bring certain state laws more up-to-date.

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

    2015-16 Colorado Commission MembersFor information on Colorado’s ULC connection, visit the website of the Colorado Commission on Uniform State Laws (CCUSL).