by Jeremiah Barry

The United States Supreme Court recently issued an opinion in the case of Nelson v. Colorado, holding that Colorado’s statute for awarding compensation to certain exonerated persons is unconstitutional because it violates due process under the Fourteenth Amendment to the U.S. Constitution. But in reviewing the case carefully, it appears that, while the statute is unconstitutional with regard to the procedure for refunding costs, fees, and restitution paid by defendants whose convictions are later vacated or reversed, the statute is arguably constitutional with regard to providing compensation to these persons for the time during which they were incarcerated.

In 2013, the General Assembly passed House Bill 13-1230, which created the statutes that the courts refer to as the Exoneration Act.  Basically, the act says that, if a person is convicted of a crime and serves part of his or her prison sentence, and the person’s conviction is later overturned or vacated and the person is released, the person may be eligible for compensation from the state—$70,000 per year or more—for the number of years he or she was in prison and more for time spent on parole. But to get the compensation, the person must file a new civil action against the state claiming that he or she is entitled to compensation and prove by clear and convincing evidence that he or she was actually innocent of the crime. The act specifically says that “compensation” includes a refund of any costs, fees, or restitution paid.

Shannon Nelson was originally convicted of five counts of sexual assault, sentenced to the department of corrections, and ordered to pay $8,192.50 in restitution and costs. While incarcerated, she had $702.10 withheld from her inmate account as payment toward these restitution and costs. However, her conviction was subsequently reversed on appeal, and, on retrial, she was acquitted of all charges. Nelson moved the trial court for a refund of the money that was withheld while she was incarcerated. The trial court held that it had no authority to order a refund and denied the motion. Nelson did not bring a separate civil action for compensation under the Exoneration Act.

After Nelson appealed the trial court’s ruling, the Colorado Court of Appeals found that, because the payments were not related to a valid conviction, the state did not have the authority to collect Nelson’s money and ordered the state to issue a refund. The state appealed that ruling.

The Colorado Supreme Court granted certiorari and held that, without statutory authorization, a trial court lacks the authority to order the state to refund money collected from a defendant who is later acquitted. The Court ruled that the only way a defendant can receive a refund of costs, fees, and restitution is to file a civil suit for compensation under the Exoneration Act. Since Nelson did not do that, the Court denied her claim for a refund of costs, fees, and restitution.

Nelson appealed the Colorado Supreme Court’s ruling to the U.S. Supreme Court. On April 19, 2017, the Court found that the act does not meet the requirements of due process under the Fourteenth Amendment with regard to a refund of costs, fees, and restitution. The Court held that, once Nelson’s conviction was reversed on appeal, and especially after she was acquitted, she was presumed innocent. Colorado cannot require her prove her innocence in order to receive a refund of costs, fees, and restitution paid. Requiring her to prove her innocence by clear and convincing evidence creates an unacceptable risk of erroneous deprivation of property. The Court remanded the case, and Colorado must repay the amount of costs, fees, and restitution that Nelson paid.

While this case was pending before the U.S. Supreme Court, the General Assembly enacted House Bill 17-1071, which establishes a new procedure for a defendant whose conviction is overturned to petition for a refund of any costs, fees, and restitution that he or she paid. Under this new process, the defendant is not required to prove innocence.

The U.S. Supreme Court’s decision in Nelson v. Colorado does not mean that the entire Exoneration Act passed in 2013 is unconstitutional; the Court ruled on the constitutionality of the statute only with regard to a refund of costs, fees, and restitution. It did not consider whether Colorado can constitutionally require a person to prove his or her innocence in order to receive compensation for time spent in prison.  The difference lies in the word “property.”

When a person pays costs, fees, and restitution, the person is obviously giving his or her property—money—to the state. To get that property back, the Supreme Court has said the person should not have to prove innocence because once the conviction is overturned, the person is presumed to be innocent.

But the state is not constitutionally required to compensate a person who is wrongfully convicted for the time that the person spends in prison; compensation is not a person’s property that the state cannot take away without due process. A person’s conviction may be vacated or overturned for a number of reasons, not just because the person was actually innocent. So, if the state makes a policy decision to compensate persons who are wrongfully committed, it can, presumably, require the person to prove his or her innocence in order to receive the compensation.

With the passage of H.B.17-1071 to recover a refund of costs, fees, and restitution, it appears the Exoneration Act remains constitutional.

By Jennifer Gilroy and Abby Chestnut[1]

Here is a civically inspired thought for you: As a citizen of the United States, you own the law. The law is not subject to copyright protection, so it finds its home in the public domain. However, questions may arise about whether the original works, such as case annotations and editor’s notes, that often accompany the law when it is published are subject to copyright protection or are also owned by the people.

The U.S. Constitution charges Congress with promoting the “progress of science and useful arts” by developing copyright law, and Congress has done so by allowing original, individual expressions that have a “modicum of creativity” to receive copyright protection. If like most people, you’re unsure of what a “modicum” is, a synonym is “shred”. The laws passed by a legislative body, as representatives of the people, are not creative, individual expressions that are entitled to be protected by copyright.  However, as a general rule, a “modicum of creativity” is an extraordinarily low standard and, therefore, copyright protection attaches to most original works.

And herein lies the rub with copyright and statute publication. While the text of the law itself is not copyrightable, most parts of the federal and state codes are accompanied by “ancillary works” such as editor’s notes, source notes, and, most substantively, annotations that summarize appellate court cases interpreting the statutes. These ancillary publications may, in fact, possess a “modicum of creativity” and, depending on how they are written and published, may be copyrightable.

Even when material is subject to a valid copyright, someone may use that material if it is a “fair use” under the law. Courts will consider four factors to determine whether a use was, in fact, “fair” and not an infringement on the copyright:

1. The purpose and character of the use—it’s more likely to be a “fair use” if it is being used for a nonprofit educational purpose rather than a commercial purpose or if the use is a “transformative” work that adds something new with a further purpose or different character, like a parody;
2. The nature of the copyrighted work—it’s more likely to be a “fair use” if it is factual material rather than a creative work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use on the value of or potential market for the copyrighted work.

If the ancillary works accompanying the statutes are copyrighted and later reproduced when people copy and use the annotated statutes without permission, there is an issue as to whether that use would be “fair.”

Colorado has neatly side-stepped this sticky issue.  Consistent with court findings and scholarly opinions, the Colorado General Assembly views the Colorado Revised Statutes—including their arrangement, headnotes, and numbering systems—as part of the public domain and does not attempt to copyright them. However, Colorado law authorizes the Committee on Legal Services, or its designee, to copyright—not the statutes—but the original publications and editorial work that accompany the Colorado Revised Statutes. (See section 2-5-115, Colorado Revised Statutes) Unlike most states, the Colorado legislature’s nonpartisan staff in the Office of Legislative Legal Services drafts the ancillary publications related to the statutes, including source (history) notes, editor’s notes, cross references, various indices, and case annotations, all of which are published together with the statutes, both in print and online.

Pursuant to its statutory authority, the Committee on Legal Services historically registered a copyright in these publications. But in 2016 the Committee suspended the practice, citing to the fact that, unlike other states where editorial work and case annotations are the product of a work-for-hire private contractor, in Colorado the publications are a product of state-paid legislative staff and are made freely available on the Colorado General Assembly’s public access website.  The Colorado General Assembly, through its Committee on Legal Services, contracts with LexisNexis to format, bind, and distribute the Colorado Revised Statutes books. But to ensure broad public access to the state’s laws, the Committee’s publications contract with LexisNexis also requires LexisNexis to host a fully annotated version of the Colorado Revised Statutes in searchable format on the internet without cost to the state or the public. This invaluable resource is directly accessible by the public through the legislature’s website.

In hosting this online resource, LexisNexis provides a website that is searchable and offers several value-added features useful to the legal researcher. And while certain terms and conditions on the site are designed to protect its technology, services, software, graphics, logo, and value-added design features, LexisNexis does not claim a copyright in the law itself or in the additional ancillary publications described in this article.

However, not all states prepare and publish their statutory code in the same way Colorado does; in fact, many do not. For example, Georgia contracts with LexisNexis to publish its Official Code of Georgia Annotated (O.C.G.A.) and to perform certain editorial work and write the accompanying annotations. LexisNexis registers a copyright in the code’s annotations, which Georgia then holds. While the state makes the statutes themselves publicly available online, it makes the official code with annotations available only for sale.

In 2013, an entity purchased Georgia’s official code, scanned it, and posted it in its entirety online. Georgia subsequently sued the entity in the United States District Court for infringement of its copyright. Georgia agreed that the text of Georgia’s law itself belongs to the public. But Georgia argued that the copyright in the original, creative works accompanying the statutes (such as the annotations) are protected by a valid copyright and that copying and distributing the entire annotated code online does not constitute a fair use under copyright law. The defendant argued that the annotations do not possess the “modicum of creativity” necessary for a valid copyright, and even if they do, the use was fair.

Just this month, the court issued its ruling on motions for summary judgment in the case of Code Revision Commission v. Public.resource.org, Inc.  In denying the defendant’s motion and granting Georgia’s motion for partial summary judgment, the court observed that the selection, writing, editing, and creativity of the annotations requires skill, evaluative analysis, and a tremendous amount of work. The court, therefore, determined that these efforts confirm that the annotations are original works entitled to broad copyright protection. The court further found that the defendant had failed to meet its burden of proving that posting a verbatim replication of the O.C.G.A. online was a fair use.

The challenge in Georgia was not the first case of this type and will probably not be the last. While we can say with certainty that the text of the law itself is not copyrightable, the issues surrounding the copyrighting of materials that accompany the law may continue to find their way to court. For now, however, Colorado will not be caught in the thicket of these thorny copyright issues.

[1] Abby Chestnut is a third-year law student at George Mason School of Law who has permanently relocated to Denver where she is completing her studies at the University of Denver Sturm College of Law.  Mrs. Chestnut is participating in an internship this semester at the Office of Legislative Legal Services.  She anticipates receiving her juris doctor degree in May.

by Julie Pelegrin

Since 1975, the federal “Individuals with Disabilities Education Act” (IDEA) has required states to provide a “free appropriate public education,” or FAPE, to each child with a disability. People are reasonably clear—though not completely—on what “free,” “public,” and “education” mean. But the courts have struggled with what “appropriate” means. Last week, the U.S. Supreme Court, in deciding the case of Endrew F. v. Douglas Cty. School Dist. RE-1, handed down the latest interpretation: The educational services and supports a child receives must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

So, how did the Court arrive at this particular standard? And what difference is it likely to make for public schools and children with disabilities going forward?

The last time the U.S. Supreme Court considered what Congress meant when it required a FAPE for each child with a disability was in 1982. The case of Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley centered on first grader Amy Rowley, who had a hearing impairment. Her individualized education plan (IEP) called for her to be fully integrated into the regular classroom and to spend time with a special tutor and a speech therapist. Amy’s teacher used a wireless device that transmitted to an FM hearing aid that Amy wore. Amy made excellent academic progress under these arrangements, better than many of the children who were not hearing impaired, but she didn’t fully understand everything going on in the classroom. Her parents sued the state claiming that her IEP should require the school to provide a sign language interpreter, giving Amy educational opportunities that were equal to those enjoyed by her non-hearing-impaired peers.

That was the first case in which the Court had to interpret the level of education that children with disabilities are entitled to under IDEA. The Court rejected Amy’s parents’ argument that she was entitled to services that would give her opportunities equal to those of children who did not have a disability. But it also rejected the state’s argument that a FAPE was merely aspirational and that IDEA did not create any substantive right to an education.

Instead, the Court held that IDEA guarantees a substantively adequate program of education to all children with disabilities. This guarantee is satisfied if a student’s IEP requires educational services and supports that “are reasonably calculated to enable the child to receive educational benefits.” In the case of a child who is fully integrated into a regular classroom, like Amy, “educational benefits” means the child receives passing grades and is advancing from grade level to grade level. Since Amy was earning good grades and moving from grade to grade, the Court found that she was receiving a FAPE and her IEP was sufficient; she was not entitled to a sign language interpreter.

However, the Court refused to establish a single test for determining the adequacy of education benefits for all children with disabilities. The severity and types of disabilities cover such a broad spectrum that adequacy could vary widely from child to child. In applying the Rowley standard over the last 35 years, the courts have generally said that an educational benefit is adequate if it confers “some educational benefit” on the child.

This standard led Endrew F. and his parents to the U.S. Supreme Court. Endrew—referred to as Drew in the case—was diagnosed with autism when he was two years old. His parents enrolled him in Douglas County Schools (DCS), where he received an IEP. The educational services and supports that he received under the IEP enabled him to make some progress. He progressed from kindergarten to fourth grade but was still exhibiting disruptive behaviors that inhibited his ability to access learning in the classroom. Drew’s IEP had not changed significantly over the years, and in April 2010 when his parents received his proposed IEP for fifth grade, they decided to pull him out of DCS and enroll him in a private school for children with autism—Firefly Autism House.

At Firefly, Drew received a new behavioral intervention plan and higher academic goals, and Drew made good progress for six months. When DCS suggested a new IEP to Drew’s parents in November 2010, they decided it looked too much like the old IEP and sued the school district. They claimed DCS was not providing a FAPE for Drew and therefore, under IDEA, they were entitled to reimbursement for the cost of tuition at Firefly.

The administrative law judge, the federal district court judge, and the Tenth Circuit Court of Appeals judges all applied the Rowley standard and sided with DCS. While Drew may not have made a lot of progress academically or behaviorally at DCS, he had made some progress. The Tenth Circuit specifically found that the law required only that he make “merely more than de minimis” progress— which means more than a negligible amount of progress. Under this standard, DCS was meeting the requirements of IDEA with Drew’s IEP, and Drew and his parents were not entitled to more services.

The U.S. Supreme Court disagreed—unanimously. Specifically, they disagreed with the Tenth Circuit’s interpretation of the Rowley case. The Court reminded the Tenth Circuit that in Rowley they refused to set a standard for what constitutes educational benefits. A child’s IEP must focus on the individual child and his or her unique needs and be designed to enable the child to make educational progress. A child with disabilities is still not entitled to services that will guarantee to the child educational opportunities that are equal to those of his or her peers without disabilities. But the child’s educational program must be “appropriately ambitious in light of his circumstances” and afford “every child…the chance to meet challenging objectives.”

So that’s the new standard: A child’s IEP must be reasonably designed to enable the child to make progress “appropriate in light of the child’s circumstances.” The Court recognized that this is a standard, not a formula, but it is “markedly more demanding” than the “merely more than de minimis” progress standard that the Tenth Circuit applied. As a standard it is still open to interpretation, and the courts are supposed to give deference to school district experts in deciding what level of progress is appropriate for a child.

It remains to be seen whether Drew’s parents will be reimbursed for the tuition they paid to Firefly for their son’s education. The Tenth Circuit will have to determine whether the services in the IEP provided by DCS would have enabled Drew to make progress that was appropriate to his circumstances. While Drew made significant progress with certain services at Firefly, the court could conclude that the services offered by DCS would have been sufficient for “appropriate” progress.

And it remains to be seen whether the new standard will result in real changes in the services that schools provide to children with disabilities. The Court’s decision does not answer the question of whether a school must provide the highest, most expensive services to enable a student to make the most progress or whether less expensive services that result in good progress are sufficient. There is a great deal of room to debate how much progress is appropriate in light of a child’s circumstances— almost as much room as existed when deciding whether a child received an educational benefit.

by Esther van Mourik

When you buy a present for your friend at a store in Colorado, the retailer collects the sales tax on that purchase and remits that amount to the Colorado Department of Revenue. If you buy the same item online from a retailer that does not have a brick and mortar store in the state, you are personally responsible for paying the same amount of tax (now called a use tax instead of a sales tax) to the Department of Revenue. Generally speaking this is because of the United States Supreme Court’s interpretation of the United States Constitution: To protect interstate commerce, a state can’t require retailers that don’t have a brick and mortar presence in the state to collect sales tax on its behalf. Instead, the responsibility for getting the tax money to the state falls to individual purchasers.

Because many people aren’t aware of the responsibility to pay the use tax, Colorado is missing out on a lot of tax revenue. And because the economy is rapidly changing so that more people are buying presents (and other “tangible personal property”) online from retailers without brick and mortar stores in the state, the lost revenue effect is even greater. Estimates indicate that the state’s annual lost revenue due to online sales exceeds $150 million.

In 2010, the General Assembly passed House Bill 10-1193, the so-called “Amazon law,” a reporting requirements statute that compels retailers who are not collecting sales tax to report a number of things to both the Department of Revenue and their Colorado customers. The law was immediately challenged in court and has been in litigation for the past six years. A state court also enjoined the enforcement of the new law while it was being litigated in federal court.

On February 22, 2016, the 10th Circuit Court of Appeals issued an opinion upholding the constitutionality of House Bill 10-1193. On Friday, December 9, 2016, the United States Supreme Court declined to hear an appeal of the Court of Appeals decision. By declining to hear the appeal, the Supreme Court effectively affirmed the constitutionality of the law. This means that the Department of Revenue can start enforcing the requirements in House Bill 10-1193. Many news agencies have reported on this decision. You can read some of those articles here, here, here, and here.

House Bill 10-1193 requires retailers who do not collect Colorado sales tax to do three things:

1. Notify Colorado purchasers that sales or use tax is due on certain purchases made from the retailer and that Colorado requires the purchaser to file a sales or use tax return;
2. Send notice to all Colorado purchasers by January 31 of each year showing certain information that the Department of Revenue will require by rule, including the total amount the purchaser paid for Colorado purchases in the previous calendar year. The notice must include, if available, the purchase dates, the purchase amounts, and the category of each purchase, including, if the retailer knows, whether the purchase is exempt or not exempt from taxation. This notice must also state that Colorado requires the purchaser to file a sales or use tax return and pay the sales or use taxes on certain Colorado purchases that the purchaser made from the retailer.
3. File an annual statement with the Department of Revenue by March 1 of each year for each Colorado purchaser that shows the total amount the purchaser paid for Colorado purchases in the last calendar year.

If the retailers who do not collect Colorado sales tax fail to do the three things listed above, those retailers are subject to fines for each failure. The Department of Revenue is trying to determine when the law will take effect. Hampering that decision is the fact that the state court injunction is still in place and must be vacated before the Department of Revenue can enforce the law. Many articles in the media that discussed House Bill 10-1193 appeared to argue that the law was intended to compel retailers who do not collect sales tax to voluntarily start collecting. While that intention is not clearly established in the law, it remains to be seen how retailers will respond when the law takes effect.

There are efforts by other states, particularly in South Dakota, to require retailers that do not collect tax on internet sales to start collecting. Legislation of this type is a direct challenge to the United States Supreme Court’s constitutional interpretation that states cannot require out-of-state retailers to collect sales tax. So while the United States Supreme Court’s decision not to hear the Colorado case represents movement on this issue of online sales taxation, many questions remain to be answered. Stay tuned!

by Jery Payne

In the 1990s, dentists in North Carolina started whitening teeth. And they made lots of money. But in the early 2000s, other people started whitening teeth. And they charged a lot less.

North Carolina’s dentists began to complain about the competition. Soon the board of dentistry got involved. Eight out of ten members of the board of dentistry were dentists. And although the statute did not specifically say that whitening teeth is dentistry, the board decided to it would go “forth to do battle.” The board issued over 40 cease-and-desist letters. These letters warned that whitening teeth is the practice of dentistry and practicing dentistry without a license is a crime.

The letters worked. In North Carolina, soon only dentists were whitening teeth.

But there was a problem: The Federal Sherman Act prohibits “every contract, combination, or conspiracy in restraint of trade”. It is well-settled law that trade is restrained by forcing your competitors out of the market so you can charge more. And the members of the board had agreed to force these folks out of the market, so there was a combination or conspiracy. The board’s letters appear to violate the act.

Now I bet that some of you are thinking, “So what?” The board acted under the color of law. After all, don’t all laws regulating professions restrain trade? If nothing else, these laws stop unqualified people from competing with qualified people. Do all the laws that regulate professions violate this act? What gives?

Yes, technically, laws that regulate professions restrain trade. And although the act of passing a state law doesn’t violate the Sherman Act, the actions of people are a different matter. People can’t violate federal law merely because the state has a law allowing it. So there is a potential conflict between the actions taken under state programs and federal law. And this, as you can imagine, is a bit of a problem for business regulation in a federal system of government. So the U.S. Supreme Court has created the state-action exception.

If a regulatory program falls under the state-action exception, then the program and any incidental restraint of trade by the program do not violate the Sherman Act. But this raises the question of how “state action” is defined. To the degree that a regulatory program looks like a legitimate exercise of state power to protect the common good, the courts will defer to the state. But if it looks like the state has merely blessed a restraint in trade, the courts won’t defer to the state.

An example can be found in California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc. In this case, California passed a law creating a framework for its wine companies to fix prices. The United States Supreme Court ruled that a state can’t pass a law excepting its citizens from federal law.

In this case, the court set down a two-part test to decide whether a “state action” qualifies as an exception to the Sherman Act: “[F]irst, the State has articulated a clear policy to allow the anticompetitive conduct, and second, the State provides active supervision of the anticompetitive conduct.”

The heart of this test is two basic questions: The first asks who set the policy. Is the policy the act of a sovereign? Or is it the act of people who would be tempted to restrain trade? The second asks who enforces the policy. Is the policy enforced by state officials? Or is it enforced by people who would be tempted to restrain trade?

The court explained: “Limits on state-action immunity are most essential when the State seeks to delegate its regulatory power to active market participants, for established ethical standards may blend with private anticompetitive motives in a way difficult even for market participants to discern.”

Returning to North Carolina, a statute did not actually declare whitening teeth to be the practice of dentistry. And it was pretty convenient that eight out of the ten members of the board of dentistry are dentists. So when the U.S. Supreme Court decided this issue, in North Carolina Board of Dental Examiners v. Federal Trade Commission, what do you think was the outcome?

You would be right if you said that the cease-and-desist letters violated the Sherman Act.

Although the reasoning of the decision follows the reasoning of prior decisions, this is the first time the Court has ruled that the actions of a state regulatory board violate the Sherman Act. Boards that include market participants are common in professional regulatory programs. Some states are concerned that many of their boards are affected by the ruling.

If so, a state board should be careful to stay within the bounds of its statutory authority. And a state should make sure that each board with market participants is actively supervised by a governmental agency. The Court didn’t give very specific advice about what kind of supervision is needed. It did say that supervision should ensure that “a private party’s anticompetitive conduct promotes state policy, rather than merely the party’s individual interests.”

Although the decision has caused some concern for the states, one point to remember is that the Court didn’t strike down the whole program; it merely stopped the dental board from issuing cease-and-desist letters. Under the ruling, the board is still regulating dentistry.

by Michael Dohr

Because of a recent U.S. Supreme Court decision, 48 inmates serving life sentences without the possibility of parole in the Colorado Department of Corrections are now eligible for resentencing hearings. But their new right to a resentencing hearing doesn’t guarantee them a different sentence.

From 1990 to 2006, Colorado imposed a mandatory life sentence without parole on a juvenile convicted of a class 1 felony. In 2012, in the case of Miller v. Alabama, the U.S. Supreme Court ruled that a mandatory sentence of life without parole for a juvenile is unconstitutional because it violates the 8th Amendment prohibition against cruel and unusual punishment.

Since Colorado’s mandatory life sentence without parole for a juvenile was held unconstitutional, you may assume that all of those persons serving that sentence would be entitled to resentencing. But when the U.S. Supreme Court announces a criminal case, it does not automatically mean that each person in the same circumstances as the defendant in the Supreme Court case gets the benefit of the decision. In fact, usually only those defendants whose cases are still on direct appeal from their conviction get the benefit of the decision.

In the criminal justice system, there are two types of appeals: Direct appeals and collateral or post-conviction appeals. A direct appeal occurs when the defendant appeals his or her conviction directly to the next highest court, challenging the grounds of the conviction based on an alleged error that occurred before or during the trial. The process of direct appeal is completed once the Colorado Supreme Court – or the U.S. Supreme court if there’s a federal issue involved – rules on, or refuses to consider, the appeal. After a defendant’s direct appeals are completed, the defendant’s conviction is final.

After the conviction is final, a defendant may file a collateral appeal claiming there is a fundamental issue, such as ineffective assistance of counsel, that was not addressed on direct review. The defendant may also bring a collateral appeal claiming there is newly discovered evidence of the defendant’s innocence that the court should consider.

This distinction between direct appeals and collateral appeals is significant in this case because there are 48 inmates in the Colorado Department of Corrections who are serving mandatory life sentences without the possibility of parole and whose direct appeals are completed.

The legal issue that determines whether a defendant whose direct appeal is completed receives the benefit of the Supreme Court’s decision is whether the issue decided in the case is a substantive issue of criminal law or a procedural issue of criminal law. If the issue is substantive, then a defendant who has completed the direct appeal process also gets the benefit of the decision in the case. But if the issue is procedural, it only applies to those defendants whose cases are still on direct appeal. The vast majority of the cases involve procedural issues of criminal law and therefore do not apply to defendants whose direct appeals are completed.

In June of 2015, the Colorado Supreme Court held in People v. Tate that the Miller decision involved a procedural issue, not a substantive one, and, as such, does not apply to a defendant who has completed his or her direct appeal. Colorado’s decision was in the minority of state courts that considered the question. But, it was not the final word on the issue for Colorado defendants because the U.S. Supreme heard a case this term to address the Miller question.

In January 2016, the U.S. Supreme Court held in Montgomery v. Louisiana that Miller is substantive. The Court found that Miller involved a substantive criminal issue because the decision addressed criminal sentencing. Specifically, the Court found that the Miller decision prohibited a certain category of punishment for a class of defendants because of their status. The prohibited category of punishment is a mandatory life sentence without the possibility of parole, and it is prohibited because of the defendants’ status as juveniles.

So, the 48 inmates in Colorado whose direct appeals are finished are now eligible for resentencing hearings. The Supreme Court acknowledged that it may be a burden on state courts to hold hearings for all of the inmates who are now eligible for resentencing under the Miller decision. The Court suggested that states could choose to parole the inmates rather than hold resentencing hearings.

But it’s important to note that a resentencing hearing for one of these defendants doesn’t automatically result in a different sentence. The operative term in the Miller holding is “mandatory;” mandatory sentences to life without the possibility of parole are unconstitutional for juveniles. At a resentencing hearing, a court could review the evidence and arguments presented at the trial and conclude that the defendant deserves a sentence to life without the possibility of parole. In this situation, the court may affirm the defendant’s original sentence. So, while the Montgomery decision grants the defendants the right to a hearing on their sentences, it does not guarantee them a change in their sentences.

by Jessica Wigent

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

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

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

So how does this intricate balance of power work?

The federal courts:

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

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

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

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

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

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

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

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

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

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

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

by Julie Pelegrin

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

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

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

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

The suit makes two claims:

1. The teacher employment statute creates a private contract between the teachers and the school district; the unpaid leave provisions unconstitutionally interfere with that contract; and
2. The teacher employment statute creates a property interest in continued employment for nonprobationary teachers. Placing a nonprobationary teacher on indefinite unpaid leave is essentially the same as dismissing the teacher. So, the provisions that allow the school district to place the teacher on indefinite unpaid leave without giving the teacher due process – notice and a hearing – take away the teacher’s property interest in continued employment in violation of the due process clause of the constitution.

Last March, the state Attorney General and the lawyers for DPS filed a motion to dismiss the lawsuit on the basis that the teachers and the DCTA did not state any claims for which the court could grant relief. The trial court agreed and granted the motion to dismiss in June.

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

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

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

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

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

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

On December 17, 2015, the Attorney General’s office and the attorneys for DPS filed a petition for certiorari, requesting the Colorado Supreme Court to review the Court of Appeals decision.

by Jery Payne

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

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

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

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

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

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

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

Some of you may be wondering how a private group trying to get a license plate results in government speech. Who is really advocating under these circumstances—the private group or the government? Among the special license plates are these slogans:

• Get it Sold with RE/MAX
• I’d Rather Be Golfing
• University of Oklahoma

The dissent pointed out it seemed a little strange to argue that the State of Texas had decided that RE/MAX was their realtor of choice or that it’s better to be golfing than working or even playing football. Speaking of football, it may be well-nigh treason in the Lone Star State to endorse the University of Oklahoma given its deep rivalry with the University of Texas. To the dissent, special license plates display the speech of the car owners who choose them, not of Texas.

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

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