by Richard Sweetman

In the recent case of Fuentes-Espinoza v. People, 2017 CO 98, 408 P.3d 445, the Colorado Supreme Court overturned the convictions of a man who violated Colorado’s law against smuggling human beings (§ 18-13-128, C.R.S.) because it determined that federal law preempts the Colorado law. The case explains preemption jurisprudence and the circumstances under which a court may find that federal law preempts state law.

Background
In 2007, Bernadino Fuentes-Espinoza was arrested in Wheat Ridge, Colorado, after attempting to pass a counterfeit $100 bill to a gas station attendant. When police arrived, they discovered that Fuentes-Espinoza was driving a van full of people, two of whom fled and were not apprehended. It was later determined that Fuentes-Espinoza was transporting the passengers from Arizona to Kansas in exchange for $500. He was charged with, and later convicted of, seven counts of human smuggling in violation of § 18-13-128, C.R.S. (He was acquitted of one count of forgery for passing the counterfeit bill.)

The General Assembly enacted § 18-13-128, C.R.S., in 2006. It provides that a person commits a class 3 felony “if, for the purpose of assisting another person to enter, remain in, or travel through the United States or the state of Colorado in violation of immigration laws, he or she provides or agrees to provide transportation to that person in exchange for money or any other thing of value.”

Fuentes-Espinoza appealed his convictions, arguing that the federal “Immigration and Nationality Act”, 8 U.S.C. sec. 1101-1537 (2017) (INA) preempts § 18-13-128, C.R.S. The Colorado Court of Appeals rejected the preemption argument, concluding that Fuentes-Espinoza could not raise it on appeal because he had not raised it before the trial court. However, the Colorado Supreme Court chose to exercise its discretion to review the argument, and it agreed with Fuentes-Espinoza that the INA preempts § 18-13-128, C.R.S. Accordingly, the Court reversed the convictions on all counts.

Analysis
The Colorado Supreme Court began its analysis by noting that the U.S. Supreme Court recognizes three forms of federal preemption: Express, field, and conflict preemption.

Express preemption occurs when Congress “withdraw[s] specified powers from the States by enacting a statute containing an express preemption provision” (quoting Arizona v. United States, 567 U.S. 387, 399 (2012).

Field preemption occurs when “the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.” Id. Congress’s intent to preempt a particular field may be inferred “from a framework of regulation ‘so pervasive . . . that Congress left no room for the States to supplement it’ or where there is a ‘federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’” Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

Conflict preemption occurs when a state law conflicts with a federal law. Such a conflict exists (1) when compliance with both federal and state law is physically impossible and (2) in “those instances where the challenged state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).

In Fuentes-Espinoza’s case, the Court found that Colorado’s human smuggling law is preempted under the doctrines of both field and conflict preemption.

As to field preemption, the Court found that the comprehensive nature of the INA demonstrates Congress’s intent to “maintain a uniform, federally regulated framework for criminalizing and regulating the transportation, concealment, and inducement of unlawfully present aliens, and this framework is so pervasive that it has left no room for the states to supplement it.”

As to conflict preemption, the Court found that Colorado’s human smuggling law “stands as an obstacle to the accomplishment and execution of Congress’s purposes and objectives in enacting the INA” because the law (1) conflicts with the “careful calibration” of the INA’s penalty scheme and (2) “sweeps more broadly” than the INA by criminalizing a wider range of conduct. “In doing so,” said the Court, “the Colorado statute disrupts Congress’s objective of creating a uniform scheme of punishment because some human smuggling activities . . . are punishable in Colorado but not elsewhere.”

For more information, contact Richard Sweetman at (303) 866-4333.

by Yelana Love

On June 27, 2018, the United States Supreme Court decided Janus v. American Federation of State, County, and Municipal Employees,[1]  The Court, explicitly overruling Abood v. Detroit Bd. of Ed.,[2]  held that an Illinois state law requiring all employees in a bargaining unit exclusively represented by a public-sector labor union, including employees who had chosen not to join the union and who opposed the union’s collective bargaining and other positions, to pay an agency fee to the union, violated the First Amendment to the United States Constitution. The Court reasoned that the problem with the law was that it forced employees who had chosen not to join the union “to subsidize [the union’s] private speech on matters of substantial public concern.”[3]

Factual and Legal Background of the Case
The Illinois Public Labor Relations Act (IPLRA) allows employees of the State of Illinois and its political subdivisions to unionize. Under the IPLRA, if the majority of employees in a bargaining unit vote to be represented by a labor union, the union is designated as the exclusive representative of all the employees within the bargaining unit, including employees who choose not to join the union. Employees who join the union must pay full union dues. The specific provision of the IPLRA at issue requires employees who do not join the union to pay a percentage of the union dues referred to as an “agency fee.” In Abood, the United States Supreme Court had rejected a First Amendment challenge to an agency fee, concluding that nonunion employees may be charged an agency fee for the portion of union dues used to pay for activities that are “germane to [the union’s] duties as collective bargaining representative,” but not for any portion of dues used to fund the union’s political and ideological projects.[4]

Mark Janus was an Illinois state employee working in a bargaining unit that voted to be represented by a union.[5]  Janus elected not to join the union because he opposed many of its policy positions, but he was required to pay an agency fee, which was automatically deducted from his pay.

Janus filed a complaint in federal court asserting that “nonmember fee deductions are coerced political speech” and “the First Amendment forbids coercing any money from the nonmembers.”[6]  Relying on Abood, the union moved to have the case dismissed. The District Court granted the motion to dismiss and the Court of Appeals for the Seventh Circuit affirmed the decision. The United States Supreme Court granted certiorari to consider whether the required payment of an agency fee for nonunion, public-sector employees is unconstitutional.

Analysis of the Decision
The Court begins its opinion by discussing Abood, noting that in that case “the Court upheld the constitutionality of an agency-shop arrangement like the one now before us,” but that “in more recent cases we have recognized that this holding is ‘something of an anomaly,’ and that Abood’s ‘analysis is questionable on several grounds.’”[7]  The Court then considers “whether Abood’s holding is consistent with standard First Amendment principles,”[8]  pointing out that the First Amendment forbids abridging the freedom of speech, which “includes both the right to speak freely and the right to refrain from speaking at all.”[9]  The Court recognizes that a “‘significant impingement on First Amendment rights’ occurs when public employees are required to provide financial support for a union that ‘takes many positions during collective bargaining that have powerful political and civic consequences’”[10]  and concludes that “[b]ecause the compelled subsidization of private speech seriously impinges on First Amendment rights, it cannot be casually allowed.”[11]

Next, the Court determines the appropriate level of scrutiny to be applied when determining the constitutionality of agency fees. Rejecting both the dissent’s view that the Court should “apply what amounts to rational-basis review, that is, that we ask only whether a government employer could reasonably believe that the exaction of agency fees serves its interests,”[12] and Janus’ request to subject the law at issue to strict scrutiny, the Court instead follows the precedent it set in Knox[13] and applies exacting scrutiny. Exacting scrutiny is a standard under which the compelled subsidy of an agency fee must “serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms.”[14]

In Abood, the Court allowed agency fee agreements because they promoted the state’s interest in labor peace and the avoidance of free-riders. But the Janus Court rejects both of these rationales. Instead, it concludes that “[w]hatever may have been the case 41 years ago when Abood was handed down, it is now undeniable that ‘labor peace’ can readily be achieved ‘through means significantly less restrictive of associational freedoms’ than the assessment of agency fees.”[15]  The Court is equally unpersuaded by the free-rider argument, relying on Knox for the principle that “free-rider arguments…are generally insufficient to overcome First Amendment objections.”[16]  Accordingly, the Court concludes that because the state interests relied on in Abood fail to pass exacting scrutiny analysis, the Abood court erred in upholding public sector agency fee agreements as constitutional. The Court overrules Abood, holding that the agency fee provision of the IPLRA challenged by Janus violates the First Amendment.

Impact of the Decision on Colorado
The Janus decision appears to have little immediate, direct impact on Colorado. Colorado does not currently have statutes related to public sector unions and therefore does not have any statutes requiring nonunion, public sector employees to pay agency fees. However, Janus would presumably discourage a future Colorado General Assembly from enacting a law requiring the payment of agency fees by nonunion public sector employees, because such a law would clearly violate the First Amendment as interpreted by the Janus Court.

 

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[1] Janus v. AFSCME, Council 31, 585 U.S. ___, 138 S. Ct. 2448, 201 L. Ed. 2d 924 (2018).

[2] 431 U.S. 209 (1977).

[3] Janus, 138 S. Ct. at 2460, 201 L. Ed. 2d at 934.

[4] Abood, 431 U.S. at 235-36.

[5] The specific union was the American Federation of State, County, and Municipal Employees, Council 31.

[6] Janus, 138 S. Ct. at 2462, 201 L. Ed. 2d at 937.

[7] Janus, 138 S. Ct. 2463, 201 L. Ed. 2d at 938.

[8] Id.

[9] Id. (quoting Wooley v. Maynard. 430 U.S. 705, 741 (1977)).

[10] Janus, 138 S. Ct. at 2464, 201 L. Ed. 2d at 939 (quoting Knox v. Service Employees, 567 U.S. 298, 310-311)(additional internal citation omitted).

[11] Id.

[12] Janus, 138 S. Ct. at 2465, 201 L. Ed. 2d at 940.

[13] Supra note 10.

[14] Knox, 567 U.S. at 310.

[15] Janus. 138 S. Ct. at 2466, 201 L. Ed. 2d at 941 (Quoting Harris v. Quinn, 573 U.S. ___ (2014)).

[16] Knox, 567 U.S. at 310.

by Jane Ritter

Not much, it turns out.

Despite nearly six years of legal speculation and arguments, as well as approximately 100 amicus briefs filed in support of both sides of the case, the narrow holding of the U.S. Supreme Court’s 7-2 majority opinion is primarily a critique of the actions of the Colorado Civil Rights Commission (CCRC) rather than a strong message supporting or restricting free speech, religious expression, gay marriage, or the wedding industry.

Background
The case began with a visit in July of 2012 to the Masterpiece Cakeshop (Cakeshop) in Lakewood, Colorado, by Charlie Craig and David Mullins. Craig and Mullins are a same-sex couple from Colorado who planned to marry in Massachusetts because same-sex marriage at that time was not yet recognized in Colorado. They planned to return to Colorado after the wedding to celebrate with family and friends. The purpose of their visit to the Cakeshop was to order a wedding cake for their Colorado celebration.

The couple left the Cakeshop after meeting with the owner, Jack Phillips, who, without discussing specifics of any potential cake design, declined to make a wedding cake for them. Phillips informed the couple that he did not and would not create wedding cakes for same-sex marriages because of his deep and sincerely held Christian beliefs. However, Phillips told them they were free to purchase brownies, cookies, or regular cakes from the bakery.

The Long Legal Road
After their Cakeshop visit, Craig and Mullins filed a complaint with the CCRC under the state’s anti-discrimination laws related to places of public accommodation (section 24-34-601, C.R.S.), which prohibits businesses open to the public from discriminating against customers on the basis of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry. The complaint resulted in a lawsuit, Craig v. Masterpiece Cakeshop, which the CCRC decided in favor of the plaintiffs. Phillips appealed the decision to the Colorado Court of Appeals, which affirmed the CCRC’s decision and order.

In each proceeding, the legal argument presented by Craig and Mullins was that Cakeshop, a place of public accommodation, had discriminated against them based on their sexual orientation. Phillips, on the other hand, argued that requiring him to create cakes for same-sex weddings would violate his right to free speech by compelling him to express a message with which he disagreed and would also violate his right to the free exercise of religion.

The Colorado Supreme Court declined to hear an appeal, but the U.S. Supreme Court granted cert and agreed to hear the case in its 2017 term. After multiple filings from both parties, along with the aforementioned amicus briefs (from parties ranging from the Trump Administration to the Southern Poverty Law Center), the Court heard oral arguments on December 5, 2017. The 7-2 opinion, authored by Justice Anthony Kennedy, was released on June 4, 2018.

The Bottom Line
In his majority opinion (Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018)), Justice Kennedy acknowledged that the Court appeared to face “the delicate question of when the free exercise of [Phillips’] religion must yield to an otherwise valid exercise of state power.” However, the CCRC’s utter lack of neutrality in its deliberations made it unnecessary for the Court to determine the extent to which the CCRC’s final decision may have encroached upon Phillips’ rights.

Justice Kennedy quoted remarks made by two members of the CCRC at two of the public hearings that were held to consider Phillips’ case. Each of the quotes, according to Kennedy, exhibited “a clear and impermissible hostility” toward Phillips’ sincerely held religious beliefs. Moreover, wrote Justice Kennedy:

The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention  those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.

Justice Kennedy then noted that on at least three prior occasions, the Colorado Civil Rights Division had considered the cases of bakers who refused to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division had found that the baker acted lawfully in refusing to provide such a cake.

In light of these facts, Justice Kennedy concluded that the CCRC’s hostility to religion was “inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.” Because the CCRC failed to weigh the State’s interest against Phillips’ sincere religious objections in a neutral manner, as required by the Free Exercise Clause, the CCRC’s order concerning Phillips “must be set aside.”

So Phillips does not have to make a wedding cake for Craig and Mullins, but only because Phillips’ beliefs were not respected by the Colorado Civil Rights Commission. If another same sex couple walks into Phillips’ shop—or any other bakery—and orders a wedding cake, we don’t really know whether the baker is required under law to sell them the wedding cake. All we know is that the public body that decides the case must respect the sincerely held religious beliefs of the parties.

by Ed DeCecco

In part 1 of this article, I reviewed the trial court’s decision in Knight Foundation v. Trump. Perhaps it is not surprising that there could be a public forum related to the @realDonaldTrump account, which has 55 million followers, but even a local official’s social media account with just over 2,000 followers can be a public forum for purposes of the First Amendment, as illustrated by the next case.

Davison v. Loudon Cty. Bd. of Supervisors[1]
Defendant Phyllis Randall was a Loudoun County supervisor who personally maintained a public “Chair Phyllis J. Randall” Facebook page. In response to comments Plaintiff Davison made at a public meeting about other public officials, Ms. Randall blocked Mr. Davison from the page for about 12 hours. She then thought the better of it, and removed the block. Unfortunately for her, the damage was done, and Mr. Davison sued her over the block.

Ms. Randall claimed that her Facebook was just a private account, and, therefore, she was free to manage it as she saw fit. Based on the following factors, however, the trial court determined that she was operating the page under the color of state law:

• The page was created to address her new constituents;
• She used it as a tool of governance by, among other things, holding back-and-forth constituent conversations and announcing her activities as Chair and important events in local government;
• She used county resources to support the page insofar as her chief of staff assisted her in maintaining the page, and she included links to materials created by county employees or made with county resources;
• She “swathe[d] the ‘Chair Phyllis J. Randall’ Facebook page in the trappings of her office” by, among other things, referencing her title, listing her county information, categorizing the page as that of a public official, addressing her posts to “Loudon”, submitting posts on behalf of the Loudon Board of Supervisors as a whole, asking her constituents to communicate with her on the page, and typically posting matters relating to her office.[2]

Likewise, because her block of Mr. Davison was in response to comments he made at a public meeting, the court determined that the act of blocking also arose out of public, not personal, circumstances.

The court next determined that Ms. Randall violated Mr. Davison’s rights under the U.S. and Virginia Constitutions. Mr. Davison’s criticisms of official conduct, while personally offensive to Ms. Randall, were protected speech. In addition, Ms. Randall created a forum for speech by creating her Facebook page.

In reaching this conclusion, the court focused on two features: The nature of Facebook and how the defendant used it. The court observed that “[w]hen one creates a Facebook page, one generally opens a digital space for the exchange of ideas and information.”[3] Moreover, Ms. Randall’s practice contributed to the creation of the forum. She deliberately permitted public comments on the page and allowed virtually unfettered discussion on it. She also affirmatively solicited comments from her constituents—”I really want to hear from ANY Loudoun citizen on ANY issues, request, criticism, complaint, or just your thoughts. However, I really try to keep back and forth conversations … on my county Facebook page (Chair Phyllis J. Randall) or County email….” (gratuitous capitalization included in original).[4] To the court, this was more than enough to create a forum for speech.

Ms. Randall did not have a neutral policy or practice that she applied in an evenhanded manner, but rather blocked Mr. Davison based on his criticism of her colleagues in county government. As such, the court did not worry about the specific type of forum that was created, because it determined that Ms. Randall’s block was viewpoint discrimination, and viewpoint discrimination is prohibited in all forums. As a result, the court entered a declaratory judgment in favor of Mr. Davison’s First Amendment claims, and the Loudoun County Board of Supervisors has since appealed the decision.

Hargis v. Bevin[5]
Not all recent decisions concerning social media pages, however, have gone against elected officials. A federal district court ruled against citizens who sued Kentucky Governor Matt Bevin because they were blocked from his Facebook and Twitter accounts.

As in the other cases, it appeared that the plaintiffs were blocked based on their criticism of the public official hosting the page. One plaintiff was blocked from Twitter after making comments about the governor’s tardy property tax payment, and the other was blocked on Facebook after criticizing the governor’s right-to-work policies. Plaintiffs said the blocks violated their First Amendment rights to engage in protected public speech in a traditional public forum. Governor Bevin argued that their comments were off-topic and detracted from his ability to communicate with the public on his chosen topics and, therefore, the blocks were a reasonable limitation on speech.

The court disagreed with both sides. Fortunately for Governor Bevin, his error was failing to take his argument far enough, as the court determined that his use of the privately owned social media accounts to speak on his own behalf as a public official constituted government speech. As discussed in part 1 of this article in the context of the Trump case, government speech is not subject to the requirements of the First Amendment. Moreover, the governor never intended his accounts to be a forum whatsoever, and he had no constitutional obligation to listen to everyone who wishes to speak to him. Thus the court determined that “public officers can ‘speak’ through a privately owned platform like Twitter and Facebook, and they can choose whom to listen to on those platforms without offending the First Amendment.”[6]

In reaching this conclusion, the court also discounted the effect of the block, as the plaintiffs were prevented only from having a direct relationship with the governor; they were not blocked from speaking on Twitter or Facebook altogether. Accordingly, the court denied the plaintiff’s preliminary injunction. The court, however, also observed that its decision did not necessarily leave the plaintiffs without any recourse: “Though Plaintiffs might disagree with [the governor’s] social media practices, the place to register that disagreement is at the polls.”[7]

No word at this time whether the plaintiffs intend to appeal the decision or simply register their disagreement at the polls.

Other Cases
The three cases discussed in parts 1 and 2 of this article demonstrate different approaches that trial courts have taken in cases against public officials who have blocked people from their social media accounts. It is important to note that none of these decisions are binding in Colorado, and perhaps they won’t even survive appeal. It will be interesting to see what happens in these cases and others.

Other cases that may soon be decided are lawsuits against Maine Governor Paul LePage (Leuthy v. LePage); Arizona Congressman Paul Gosar (Morgaine v. Gosar); and Wisconsin State Assembly Speaker Robin Vos, State Representative John Nygren, and State Representative Jesse Kremer (One Wisconsin Now v. Kremer, et al.). All of these cases are still pending in federal district courts.

Finally, Maryland Governor Larry Hogan settled a lawsuit filed by the ACLU of Maryland relating to his social media accounts, with the state paying the plaintiffs $65,000 and the governor establishing a new social media policy to govern his social media accounts. The new policy prohibits viewpoint discrimination and allows commentary on his Facebook page on any topic he has addressed. Both sides appear to claim this result as a victory.[8]

 

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[1] Davison v. Loudoun Cty. Bd. of Supervisors, 267 F. Supp. 3d 702 (E.D. Va. 2017)

[2] Id. at 714.

[3] Id. at 716.

[4] Id.

[5] As of the date of this article, the case was not selected for official publication, but is available on Lexis at Hargis v. Bevin, 2018 U.S. Dist. LEXIS 54428 (E.D. Ken. 2018)

[6] Id. at 24.

[7] Id. at 21.

[8] http://www.baltimoresun.com/news/maryland/politics/bs-md-aclu-hogan-facebook-20180402-story.html

by Ed DeCecco

What do the President of the United States, a county supervisor from Virginia, three Wisconsin legislators, an Arizona congressperson, and the governors of Maryland, Maine, and Kentucky all have in common? If you said they are all elected public officials who were sued because they blocked people from their social media accounts, then you are either a really good guesser or a connoisseur of First Amendment social media jurisprudence. If you are in the latter category, then you can probably save yourself the trouble of reading further. But for the rest of you, this two-part article describes some recent trial court decisions in this area.

Knight First Amendment Inst. at Columbia Univ. v. Trump[1]
In 2009, Donald Trump created his @realDonaldTrump account, which prior to his inauguration he used for tweets about whatever caught his fancy, including politics. Since his inauguration, President Trump, with the assistance of White House Social Media Director Daniel Scavino, has used his account:[2]

• To announce, describe, and defend his policies;
• To promote his administration’s legislative agenda;
• To announce official decisions;
• To engage with foreign political leaders;
• To publicize state visits;
• To challenge media organizations whose coverage of his Administration he believes to be unfair; and
• For other matters, including occasional statements unrelated to official government business.

Six individuals did not like some of the president’s tweets and let him know by responsively tweeting messages critical of the president or his policies. Consequently, their accounts were blocked from @realDonaldTrump, which means they could not view tweets from that account, directly reply to the tweets, or view threads associated with the president’s tweets from their accounts. The Knight First Amendment Institute at Columbia University was not blocked, but it was deprived of the opportunity to read the reply posts that otherwise would have been tweeted by these individuals and others.[3]  Thus, six individuals and the Institute sued President Trump, Mr. Scavino, Sean Spicer (who was replaced by Sarah Huckabee Sanders when she assumed his White House position), and Hope Hicks in federal court alleging that the Twitter block violated their First Amendment rights. The trial court agreed.

After determining that the plaintiffs could sue Mr. Scavino and the President of the United States, the court then “turn[ed] to the First Amendment’s application to the distinctly twenty-first century medium of Twitter.”[4]  First, the court determined that the individual plaintiffs sought to engage in political speech, which is at the core of First Amendment protection, and it was not language excluded from First Amendment protections, such as obscenity, defamation, or fraud. Therefore, the speech at issue was protected speech.

Having determined that there was protected speech, the court next turned to whether the there was a public forum for speech on Twitter. Plaintiffs did not want to actually access the @realDonaldTrump account—to tweet from the account, receive his notifications, etc.—but rather sought access to the content of the tweets, the timeline comprised of the tweets, and the “interactive space” associated with each tweet (replies, retweets, and likes related to tweets). Even though Twitter is not government-owned, the manner in which the president controlled these three elements was sufficient to potentially qualify them as a public forum for purposes of the First Amendment.

There is a well-accepted principle that when the government speaks on its own behalf, First Amendment protections do not apply. As the Supreme Court stated, “The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.”[5]  In this case, the court acknowledged that the @realDonaldTrump tweets are solely the speech of the president or others in his administration, and, as such, the content of those tweets, along with the related timeline, was government speech.

In contrast, the interactive space created by each of the president’s tweets is not controlled by, nor closely identified with, the government, and therefore, it was not government speech exempt from the First Amendment. Instead, for purposes of the First Amendment forum analysis, the space was a designated public forum, which exists because the government has acted intentionally to create a forum in a space that is not a traditional public forum (streets, sidewalks, and parks). In the case of the president’s twitter account, the factors that led to the inference of governmental intent to create a public forum included:

• The @realDonaldTrump account is generally accessible to the public at large without limitation, and each member of the public could generally participate in the interactive space, unless he or she has been blocked);
• The account was “held out … as a means through which the President communicates directly with you, the American people!”[6]; and
• Twitter is compatible with expressive activity; the platform is designed for users to interact with one another in relation to their tweets, and users can petition their elected officials or otherwise directly engage with them.

Within this designated public forum, the record indisputably established that the plaintiffs were blocked as a result of viewpoint discrimination—plaintiffs criticized President Trump or his policies and were then blocked. Viewpoint discrimination is impermissible under any type of First Amendment forum analysis. Nonetheless, the president argued that the block was permissible because he retains a personal First Amendment interest in choosing with whom he associates and because he is free to ignore the plaintiffs.

The court recognized the legal principles underlying the president’s argument but thought he did more than ignore them. Instead of muting the plaintiffs, which would have allowed him to ignore the accounts that he did not wish to engage, he blocked the accounts. And blocking the accounts deprived the plaintiffs of the ability to interact with the rest of the @realDonaldTrump audience. As such, the court found, “[w]hile we must recognize, and are sensitive to, the President’s personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him.”[7]

Finally, the court acknowledged that the injury to the plaintiffs was relatively minor given that they still had limited access to the president’s tweets and could tweet replies to earlier replies to the president’s tweets. Nonetheless, the inability to directly interact with the president’s tweets was significant enough of an injury to violate the constitution, and warrant declaratory relief against the president. After the decision, the president unblocked the seven plaintiffs. He did not, however, unblock all the accounts he blocked, and he has indicated that he intends to appeal the decision.[8]

In part 2 of this article, I will describe two other recent trial court decisions where public officials were sued for blocking people on social media. In one case, the court had a similar conclusion as in the Trump case, but in the other, the court rejected the plaintiffs’ claims.

 

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[1] As of the date of this article, the case was not selected for official publication, but is available on Lexis at Knight First Amendment Inst. at Columbia Univ. v. Trump, 2018 U.S. Dist. LEXIS 87432 (S.D.N.Y. 2018).

[2] These items were stipulated facts in the lawsuit.

[3] There were others. https://www.wired.com/story/donald-trump-twitter-blocked/

[4] Knight First Amendment Inst. at Columbia Univ., 2018 U.S. Dist. LEXIS 87432, p. 38.

[5] Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009).

[6] Knight First Amendment Inst. at Columbia Univ., 2018 U.S. Dist. LEXIS 87432, p. 64.

[7] Id. at 70.

[8] http://money.cnn.com/2018/06/05/media/trump-twitter-block/index.html

by Julie Pelegrin

In December of 2015, we told you about the case of Masters v. School District No. 1, in which several teachers who were placed on unpaid leave by the Denver Public School District (DPS) sued the district for violating what they claimed were statutory rights to continued employment. Specifically, they claimed that the teacher employment statute creates a private contract between the teachers and the school district, and certain provisions of S.B.10-191 (S.B. 191) unconstitutionally interfere with that contract. They also claimed that the teacher employment statutes create a property interest in continued employment, which S.B. 191 unconstitutionally takes away.

S.B. 191 includes several provisions, one of which says that a teacher cannot be placed at a public school unless the principal of the school and two teachers who represent the school staff agree to the placement. This is called the “mutual consent” provision—both the employer (principal) and the employee (teacher) have to agree to the placement. S.B. 191 also says that, if a teacher who is displaced cannot secure a mutual consent placement within the shorter of 12 months or two hiring cycles, the school district may place the teacher on indefinite unpaid leave until he or she secures such a placement. Once the teacher secures a mutual consent placement, the school district must reinstate the teacher’s salary and benefits at the level they would have been at if the teacher had not gone on unpaid leave. To further refresh your memory regarding S.B. 191 and the facts of the Masters case, check out “Court Continues Consideration of S.B.191 Provisions for Unpaid Leave”.

In December of 2015, the Colorado Court of Appeals sided with the teachers, agreeing that S.B. 191’s unpaid leave provisions interfered with the teachers’ employment contract and unconstitutionally deprived them of a property interest in their salaries and benefits. But, we noted at the end of our article that DPS had just filed for review by the Colorado Supreme Court.

The Court granted review and on March 12 of this year handed down its decision reversing the court of appeals. Unlike the court of appeals, the Court decided that the teacher employment law passed in 1990 (the 1990 law) not only removed the word tenure, but also removed any legitimate expectation that a teacher may have in continued employment with the school district. For this reason, the teacher employment law does not create a contractual relationship between teachers and their employing school districts. And the teacher employment law does not give teachers a vested property interest in salary and benefits, so placing the teachers on unpaid leave does not violate their constitutional right to due process.

No Contractual Relationship

The teachers argued that the 1990 law created a contractual relationship between teachers and their employing school districts and that the provisions of S.B. 191 unconstitutionally interfere with that contract by allowing the school district to place them on unpaid leave.

In considering this claim, the Court found that, to interpret a statute as creating a contract, there must be specific language indicating that the General Assembly intended to create a contract that it would be unable to interfere with later. The teacher employment law in place before 1990 (the old law) used the word “tenure.” By definition, a teacher who has tenure cannot be summarily fired and thus has an expectation of continued employment. The old law also used entitlement language, stating that under certain circumstances a teacher was “entitled” to employment as a teacher. So the Court agreed with the court of appeals that the old law created a contractual relationship.

But when the General Assembly rewrote the teacher employment law in 1990, it removed the word tenure and it removed any references to an entitlement or to the duration of employment. The Court found that, by removing these references when the General Assembly passed the 1990 law, the General Assembly specifically did not intend to create an employment contract for teachers that it could not interfere with later. The 1990 law did not create a contractual relationship between teachers and their employing school districts. Therefore, the mutual consent requirements of S.B. 191 do not unconstitutionally interfere with a contract.

No property interest in salary and benefits

The Court also considered the teachers’ claim that they have a property interest in receiving their salaries and benefits that the school district cannot take away without due process—providing them at least notice and an opportunity to be heard.

The Court agreed that the constitution states a person cannot be deprived of “life, liberty, or property, without due process of law.” However, the constitution doesn’t define property; it is defined by rules or understandings that come from an independent source, such as state law. So, again, the Court looked at the 1990 law to determine whether it creates a property interest that is protected by the constitution. And they concluded that it does not.

As mentioned before, the 1990 law does not use the term “tenure” or other words of entitlement or other suggestions that employment—and the right to receive salary and benefits as a result of employment—is guaranteed to continue for any length of time. The General Assembly removed all of that language in 1990, and therefore the teacher employment statute does not create a property interest in salary and benefits. For this reason, when DPS placed the teachers on unpaid leave, it did not violate their due process rights because their expectation of receiving salary and benefits is not protected by due process.

It’s interesting to note that the Supreme Court decided a similar case at the same time that it decided the Masters case. Johnson v. School District No. 1 also involved a teacher—Linda Johnson—who sued DPS after they placed her on unpaid leave when she could not secure a mutual consent placement. She brought her case in federal court, claiming a violation of the federal constitutional guarantee of due process. The federal district court found that, since her employment was not actually terminated, she was not deprived of a property interest. She appealed the decision to the Tenth Circuit Court of Appeals, and they certified the legal questions to the Colorado Supreme Court.

The Court took the same approach in the Johnson case that they took in the Masters case and came to the same conclusion. In Johnson, they specifically found that, in passing the 1990 law and specifically removing the word “tenure” and the durational and entitlement language, the General Assembly intentionally eliminated any property interest in salary and benefits for teachers.

Application of the mutual consent requirement

The Johnson case addressed another interesting question concerning the mutual consent provision. Ms. Johnson argued that the mutual consent requirement should apply only if a teacher was removed from a school for one of the reasons listed in the statute: an enrollment decrease; restructuring for turnaround; phasing out a program; reducing programs; or reducing buildings, including closures, consolidations, or reconstitutions.

In Ms. Johnson’s case, DPS had tried to fire her in 2008, but after her termination hearing, the hearing officer recommended that she be retained. So DPS assigned her to a probationary position at a school building for the 2009-10 school year, which was extended for the next year. She was assigned to a different school for the 2010-11 school year. Throughout this time, Ms. Johnson tried to secure a permanent position, but was unable to do so. At the end of the 2010-11 school year, DPS put her on indefinite unpaid leave under the mutual consent provisions of S.B.191.

Ms. Johnson argued that, because she was not displaced for one of the causes listed in the statute, she should not be subject to the mutual consent placement requirements. However, in interpreting the statute, the Court found that the reasons for displacement listed in the statute were not exclusive. In applying various canons of statutory construction, the Court concluded that, in reading the statute as a whole, it appears the General Assembly intended the mutual consent provisions to apply regardless of the reason for which the teacher was displaced,. And to hold that mutual consent applies if the teacher was displaced because of one of the listed reasons, which have nothing to do with the teacher’s performance, but does not apply if the teacher was displaced specifically because of her performance would be absurd.

So, it appears that the constitutionality and application of the mutual consent provision of S.B.191 are settled issues. And, going forward, it appears that a teacher cannot claim to have a property right in his or her employment, salary, or benefits.

by Julie Pelegrin

When last we talked about children with disabilities and their education, the United States Supreme Court had just handed down its decision in the case of Endrew F. v. Douglas Cty. School Dist. RE-1. The Court found for Endrew (he goes by Drew) and his parents by interpreting the federal “Individuals with Disabilities Education Act” (IDEA) to require that each child with a disability must receive educational services that are reasonably designed to enable the child to make “progress appropriate in light of the child’s circumstances.”

As you may recall,  IDEA requires each state to provide a “free, appropriate public education” (FAPE) to each child with a disability. Before the Supreme Court’s decision in Drew’s case, when a court was deciding whether a child was receiving a FAPE, it would consider whether the services provided to the child were providing “some educational benefit.” Specifically, the standard was whether the child was making “merely more than de minimis” progress as a result of the educational services provided by the state.

In the last LegiSource article on this topic, we concluded our explanation of the Supreme Court’s ruling by wondering how the federal district court would apply the Supreme Court’s new standard to Drew’s case. Would the judge find that the services Douglas County Schools (DCS) was offering would have enabled Drew to make progress appropriate to his circumstances?

Now we know. And the answer is—no.

On February 12 of this year, the U.S. District Court for the District of Colorado ruled that DCS had failed to provide Drew with a FAPE because the individualized education program (IEP) that it provided for him was not reasonably designed to enable him to make progress appropriate to his circumstances.

When it first heard the case, the district court found that the services DCS was providing caused Drew to make at least some educational progress from year to year. And the Tenth Circuit court of appeals agreed, concluding that it was “without question a close case,” but there were sufficient indications of Drew’s past progress to find that the school district was making more than minimal progress. So DCS met the standard that applied at that point.

But when the federal district court applied the new, more rigorous standard required by the U.S. Supreme Court, it found the IEP that DCS prepared for Drew was not sufficient. The IEP proposed in April of 2010 was based largely on the services provided in earlier years during which Drew had made only just minimal progress. As such, these same services could not be expected to help him make the higher level of progress that he could achieve, given his circumstances. The court also found that DCS had not developed a formal plan to properly address Drew’s behaviors that were disrupting his access to educational progress, which suggested the IEP proposed in April 2010 was not reasonably designed to enable Drew to make progress.

So what does this decision mean for Drew and his parents? The district court ordered DCS to reimburse them for all of the tuition they have paid since Drew enrolled in Firefly Autism House in 2010, for the costs incurred in transporting him to the school, and for their reasonable attorney fees and costs in pursuing the case. The family will file a brief tallying up what they think the full amount should be, and DCS will have the chance to respond. In a recent Denver Post article, the family’s attorney estimated the final judgment would be in the seven figures.

In our previous article, we also questioned how much of a difference the new standard would make and whether it would drive real changes in the level of services that schools provide to children with disabilities. The Supreme Court really didn’t answer the question of whether a school has to provide very expensive services to enable a student to make the most progress or whether less expensive services that result in good progress are sufficient. And deciding how much progress is appropriate in light of a child’s circumstances is not clear-cut.

So far, there have been two reported cases decided using the new standard of “progress appropriate in light of a child’s circumstances.” In Board of Education of Albuquerque Public Schools v. Maez, the U.S. District Court for the District of New Mexico found that Albuquerque Public Schools (APS) created an IEP for the student, known as “MM”, that was reasonably calculated to enable him to make appropriate educational progress.

But, in Paris School District v. A.H., the U.S. District Court for the Western District of Arkansas found that the Paris School District (PSD) failed to provide the student—AH—a “free, appropriate public education.”

In both cases, the students had significant disabilities related to autism, and in MM’s case other “global developmental delays.” Not surprisingly, the analysis in each case is based very heavily on the facts and the circumstances that are specific to each student.

In MM’s case, his IEP included services that had enabled him to make progress in the previous school year. It did not provide exactly the educational program that his parents wanted, but the court found that the choice of “educational methodology is reserved for the school district.” The court also wasn’t swayed by the fact that MM made more progress when he received private, in-home clinical services. In general, the court agreed with the school district that, although MM made more progress receiving personal at-home care, this fact did not mean that the IEP that APS offered was inappropriate or unreasonable. The court specifically stated, “While [MM’s] parents may have wanted more for their son, the law did not require APS to do more than it did for MM.”

In AH’s case, several evaluations indicated that AH needed physical, occupational, and speech therapies, but the school district failed to provide these therapies. Also, because of AH’s behavioral issues, the school district removed her from the regular classroom, placed her in an “alternative learning environment,” and ultimately refused to provide her any special education services. The alternative learning environment was a single room with eight other students and a teacher who not only wasn’t highly qualified in the core academic subjects, he didn’t have any significant training in teaching children with disabilities.

The court found that, by not addressing any of AH’s behaviors, the school district failed to meet even the test for enabling the student to make “more than de minimus” progress, much less progress appropriate to her circumstances.

While these cases may give some indication as to how courts will apply the new standard, the outcome in each case arguably would have been the same under the old standard. It’s likely that the new standard will make a difference only in the cases like Drew’s where it’s a very close call; the student is making a little bit, but not much, progress. In these cases, the new standard will make it more likely that a court will require a school district to provide a higher level of educational services.

by Jery Payne

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

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

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

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

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

(1) Benefiting from a government program;

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

(3) Placed on privately owned property; and

(4) Originating from private citizens.

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

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

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

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

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

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

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

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

by Brita Darling

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

The Trinity Lutheran decision     

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

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

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

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

How broad is this ruling?

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

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

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

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

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

So what does this mean for Colorado?

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

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

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

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

The Colorado Supreme Court’s decision in the Vallagio case may blunt the impact of a recent, and celebrated, legislative compromise

by Duane Gall

Colorado is a wonderful place to live. Buying a home here, however, can be expensive and difficult. Due to the short supply and high prices of existing homes, as well as tighter credit and a slump in new construction, it’s hard to find your personal Carrington Mansion. The situation is particularly dire with regard to condominiums, which are usually the most affordable properties. Of all the multifamily dwellings sprouting up in Denver and elsewhere in the state, this year only about three percent are condos; the rest are apartments. That’s down from about 20 percent in 2005.

First-time buyers suffer the most. They may earn enough, in theory, to afford a reasonable monthly mortgage payment. But if they have to wait months or years for a suitable home to come onto the market, and in the meantime continue to pay rent at ever-increasing rates, their hopes of owning a home can wither.

Homebuilders cite the risk and cost of construction-defect litigation as a major disincentive to new home construction. With the majority of new homes (whether detached or condo) being in planned communities that are developed by a single company, any construction defect that is identified in one unit will likely be found in others—resulting in a multiplicity of lawsuits or even a class action.

Notably, the traditional barriers to a “class action” may not apply to a planned community because the executive board of a unit owners’ association (HOA) is authorized under Colorado law to sue “on behalf of . . . two or more unit owners on matters affecting the common interest community.” (Section 38-33.3-302(1)(d), C.R.S.)

Builders say that the risk of litigation, including actions instituted by HOAs, increases their insurance premiums and other related costs by $20,000 or more per unit—pricing first-time buyers out of the market and inducing builders to construct apartments rather than condos.

In seeking to promote affordable new home construction, the Colorado General Assembly has tended to focus on deterring, or at least delaying, such lawsuits.

In 2001, the Construction Defect Actions Reform Act (“CDARA”) prohibited courts from awarding punitive damages and imposed prerequisites to the filing of a lawsuit against a construction professional. The prerequisites include giving the construction professional advance notice, a detailed list of the alleged defects, and an opportunity to remedy the defects or offer a settlement. If the parties cannot agree within a specified period, the lawsuit can proceed.

A subsequent amendment to CDARA, dubbed the “Homeowner Protection Act of 2007,” clarified that a contractual waiver of the claimant’s rights under CDARA or under the Colorado Consumer Protection Act (“CCPA”) would not be effective.

But further significant legislative action stalled, mainly over the details of whether and how to limit the ability of an HOA’s executive board to sue a builder. For example, in 2014, S.B. 14-220 would have required a board to provide to all of its unit owners advance notice and disclosure of the projected costs, duration, and financial impact of any proposed litigation, and then obtain the written consent of a majority of the unit owners before proceeding. The bill also would have invalidated any attempt by the unit owners to change the association’s governing documents, in accordance with existing law, to remove a clause requiring arbitration or mediation of a construction-defect claim against a builder.

This latter provision, the “arbitration piece,” was cited as the poison pill for S.B. 14-220. Opponents successfully argued that it would give builders carte blanche to write self-serving, binding arbitration clauses into the DNA of every new condo or subdivision, knowing that they would never have to face a court trial for alleged construction defects—even if the claim was well-founded, and even if the unit owners voted to eliminate this restriction on their legal rights concerning what was now their property.

Other legislative attempts at compromise failed along similar lines: One or more elements of each proposed bargain proved either too pro-builder or too permissive of expensive lawsuits.

In the 2017 session, however, the General Assembly broke the logjam with a successful deal. H.B. 17-1279 omitted the “arbitration piece” and codified acceptable procedures for the notice, disclosure, and ratification vote requirements of S.B. 14-220. The issue seemed settled, at least for the moment. But was it?

Governor Hickenlooper signed the hard-won compromise into law on May 23, 2017. Two weeks later, on June 5, in Vallagio at Inverness Residential Condominium Association, Inc., v. Metropolitan Homes, Inc., the Colorado Supreme Court essentially adopted as law the “arbitration piece” that the General Assembly had struggled with for four years and finally rejected.

To be fair, the Court did not flatly assert that a binding arbitration clause could never be removed by an HOA. But it did allow the defendant builder to control the amendment process in a way that achieved the same result.

Here is the background: In 2007, defendant Metro Inverness, LLC—the developer, a/k/a the “declarant,” as defined in the Colorado Common Interest Ownership Act (“CCIOA”)—recorded the necessary declaration and plat maps to construct the Vallagio at Inverness planned community near I-25 and Dry Creek Road. The declaration contained procedures for future amendments to the community’s governing documents after control of the community was transferred from the declarant to the purchasers (unit owners) and the HOA. Generally, amendments could be made by an affirmative vote of 67% of the unit owners, in accordance with CCIOA. But this was subject to two exceptions:

1. Until a specified date (now long past), any change required the declarant’s consent; and
2. In perpetuity, any change to the dispute-resolution procedures governing claims against the declarant for construction defects, including the requirement for binding arbitration, required the declarant’s written consent.

In essence, Metro Inverness, LLC, granted itself the same right by contract that S.B. 14-220 would have granted by statute, had the bill passed. When the HOA discovered what it considered construction defects and sought to sue Metro, it obtained the affirmative votes of 67% of the unit owners to remove the arbitration clause. Needless to say, Metro did not consent.

At trial, Metro moved to dismiss the case, arguing that the removal of the arbitration clause was invalid without Metro’s written consent. The HOA maintained that the consent requirement conflicted with CCIOA, which establishes the sole and exclusive procedure for amending a declaration. Specifically, section 38-33.3-217 (1)(a)(I), C.R.S., requires only “the affirmative vote or agreement of unit owners of units to which more than fifty percent of the votes in the association are allocated or any larger percentage, not to exceed sixty-seven percent, that the declaration specifies. Any provision in the declaration that purports to specify a percentage larger than sixty-seven percent is hereby declared void as contrary to public policy, … “. (Emphasis added.)

The trial judge agreed with the HOA and refused to dismiss the case. However, Metro appealed and won on this point. The Colorado Supreme Court focused on the term “percentage” and cited other provisions of CCIOA placing non-percentage-based conditions on the ratification of an amendment. Therefore, the Court implied, Metro’s addition of its own non-percentage-based conditions in this case did not violate CCIOA and the Court gave it legal effect.

It’s tempting here to quote Robert Burns’s well-known line, “The best-laid schemes o’ mice an’ men gang aft a-gley.” What is not so well known is the context of that line, made clear in the title of the poem in which it appears: “To A Mouse, On Turning Her Up In Her Nest With The Plow.” Our Supreme Court, dutifully plowing in the fields of litigation, has inadvertently scattered the General Assembly’s meticulous creation, the compromise called H.B. 17-1279. Will the General Assembly now abandon the site and let nature reclaim it? Or dig in again and rebuild?