by Julie Pelegrin

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

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

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

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

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

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

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

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

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

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

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

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

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

But the Court found that

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

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

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

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

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

by Kristen Forrestal

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

Signed into law on March 23, 2010, the ACA adopted three key reforms:

• A ban on insurers taking into account a person’s pre-existing conditions when selling health insurance or calculating premiums;
• The creation of a mandatory health care provision requiring most Americans to purchase health insurance; and
• Refundable tax credits to individuals purchasing insurance whose household incomes fall between 100% and 400% of the federal poverty level.

The ACA also requires that states either establish their own exchanges in which people can purchase health insurance or, in the alternative, allow the people to purchase insurance in the federal exchange.

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

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

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

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

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

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

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

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

It is important for lawmakers to note an additional outcome of the Court’s decision is that a future presidential administration cannot change the ruling of the Court (for instance, by reinterpreting how the subsidies are offered) without changing the act itself.

by Debbie Haskins

In a landmark ruling issued on June 26, 2015, the United States Supreme Court ruled in Obergefell v. Hodges (pronounced “OH-ber-guh-fell”) that the right to marry is a fundamental right under the U.S. Constitution. In a 5-4 decision, written by Justice Anthony Kennedy, the Court held that:

1. States cannot ban same-sex marriages and are required, upon request, to issue a marriage license to two people of the same sex; and
2. States must recognize a marriage between two people of the same sex if the marriage was lawfully licensed and performed in another state.

Justice Kennedy based the majority opinion on four principles:

• The right to personal choice regarding marriage is inherent in the concept of individual autonomy;
• Same-sex couples have the same right as opposite-sex couples to enjoy intimate association;
• Marriage safeguards children and families, and the right to marry cannot be conditioned on the capacity or commitment to procreate;
• Marriage is a keystone of the nation’s social order from which no one should be excluded.

Having found marriage to be a fundamental right, the Court next considered whether the challenged law unconstitutionally infringes on this right. The Court concluded that state laws preventing same-sex marriage are unjustified infringements on the fundamental right to marry under the due process and equal protection clauses of the 14th amendment to the U.S. Constitution.

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

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

The Rise and Fall of DOMA Laws

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

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

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

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

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

by Sharon Eubanks

If a legislature does not have the power to impose new taxes or raise the amount of existing taxes, does the state enjoy a republican form of government? Some think not.

In late May of 2011, 34 plaintiffs, including members of the General Assembly, local government officials, educators and education officials, and citizens of Colorado, filed a lawsuit against Governor John Hickenlooper in his official capacity and the State of Colorado in federal District Court for the District of Colorado. The lawsuit is entitled Kerr v. Hickenlooper because Senator Andy Kerr, one of three current legislators who are plaintiffs, is the first plaintiff listed on the complaint.

The plaintiffs allege that the Taxpayer’s Bill of Rights (TABOR), Section 20 of Article X of the Colorado Constitution, violates the Guarantee Clause and the Equal Protection Clause of the United States Constitution and section 4 of the Colorado Enabling Act of 1875 by eliminating the General Assembly’s plenary power to legislate on matters of taxation and appropriations and thereby denying the state of Colorado and its citizens an effective representative democracy. As part of their claims, the plaintiffs argue that TABOR has inflicted an institutional injury upon all members of the General Assembly by removing their ability to enact taxes to provide for the state’s expenses, thus rendering the General Assembly unable to effectively fulfill its legislative obligations in a representative democracy and a republican form of government.

In response to this lawsuit, the Attorney General filed a motion on behalf of Governor Hickenlooper in mid-August of 2011 asking the federal District Court to dismiss the lawsuit on several procedural grounds, including: 1) plaintiffs’ claims constitute nonjusticiable political questions that neither the federal District Court nor any other court can resolve on the merits; and 2) even if these questions could be resolved, the plaintiffs lack standing to bring the lawsuit. In July of 2012, the federal District Court denied the Governor’s motion to dismiss on all grounds except the Equal Protection Claim.

The Governor appealed the federal District Court’s order to the federal 10th Circuit Court of Appeals. The appeal was assigned to a 3-judge panel of the 10th Circuit, which affirmed the federal District Court’s order. Next the Governor filed a petition for rehearing before the entire membership of the 10th Circuit Court of Appeals. The court denied the petition for rehearing en banc, and the Governor filed a petition for writ of certiorari appealing the federal District Court’s order to the United States Supreme Court. After both parties and several amicus curiae (“friends of the court”) filed briefs on the petition, the matter was scheduled for discussion at the January 9, 2015, conference of the Supreme Court Justices.

The Justices’ conference is a private meeting of the Supreme Court Justices to discuss a short list of cases they are considering for review. The Justices’ decision to grant or deny review is usually announced shortly after the Justices’ conference. However, in this case, the Supreme Court did not immediately announce any decision as to whether the Supreme Court would hear the appeal of the procedural issues raised in Kerr v. Hickenlooper.

Some speculated that the Supreme Court was waiting to announce its decision until after the Court issued its decision in another case it heard this term – Arizona State Legislature v. Arizona Independent Redistricting Commission et al. In this case, Arizona’s Legislature challenged the constitutionality of a redistricting commission created by ballot initiative to draw congressional districts. One of the issues raised in the Arizona State Legislature case is whether the Legislature has standing to bring the lawsuit, so the Supreme Court’s decision in this case could have implications for the Legislator-Plaintiffs’ standing in Kerr v. Hickenlooper. It turns out that this speculation was correct.

On June 30, 2015, the last day of the Supreme Court’s October 2014 term, the Supreme Court issued a grant, vacate, and remand (GVR) order in Kerr v. Hickenlooper, which granted the Governor’s petition for writ of certiorari, vacated the decision of the 10th Circuit Court of Appeals, and remanded the matter back to the 10th Circuit for reconsideration in light of the Supreme Court’s decision issued the day before in Arizona State Legislature. In that decision, the Supreme Court held that the Arizona Legislature, as an institution, has standing to challenge the constitutionality of the redistricting commission even though the Supreme Court also upheld the constitutionality of the redistricting commission.

As a result of the Supreme Court’s GVR order in Kerr v. Hickenlooper, the 10th Circuit has established July 31, 2015, as the deadline for parties and amicus curiae to file supplemental briefs on the impact of the Supreme Court’s decision in Arizona State Legislature on the issue of the Legislator-Plaintiffs’ standing.

Watch for further developments in this lawsuit.

by Sharon Eubanks

In 2006, the Colorado Republican Party (CRP) made a request under the Colorado Open Records Act (CORA), part 2 of article 72 of title 24, Colorado Revised Statutes, to several Democratic members of the House of Representatives (Representatives) asking for documents relating to an entity identified as Research & Democracy. At the time, the Representatives had in their possession responses from constituents in their respective districts to surveys that Research & Democracy sent out on the Representatives’ behalf.

The survey asked a constituent to indicate what was the most important thing the Legislature accomplished during the 2005 session and what two topics should be priorities for legislators in the upcoming 2006 session. A constituent could check a box next to a choice of printed responses or handwrite a response. The survey also asked if the constituent would like to receive email updates from the legislator, and a space was provided for the constituent to write his or her email address. Constituents mailed completed responses back to their elected Representatives.

CORA’s exemption for confidential constituent communications

CORA provides that “all public records shall be open for inspection by any person at reasonable times” except for a number of specific exceptions. While public records generally include the correspondence of elected officials, they don’t include correspondence that is

a communication from a constituent to an elected official that clearly implies by its nature or content that the constituent expects that it is confidential or that is communicated for the purpose of requesting that the elected official render assistance or information relating to a personal and private matter that is not publicly known affecting the constituent. (See 24-72-202 (6) (a) (II), C.R.S.)

The Representatives initially claimed that all 1,584 constituent survey responses were confidential constituent communications and denied CRP the right to inspect them. CRP filed an action in Denver District Court seeking to force production of all the survey responses. The District Court held that most of the survey responses were public records subject to inspection under CORA and that the survey responses did not create an expectation of confidentiality on the part of constituents. The District Court did permit the Representatives to redact any information in the survey responses that constituents specifically requested be kept confidential.

The Representatives appealed to the Colorado Court of Appeals, which reversed and directed the District Court to review each completed survey in camera using guidelines developed by the Court of Appeals to determine whether the constituent expected the survey response to be confidential. (See 2008 Colo. App. LEXIS 1708) Applying the guidelines, the District Court found that only survey responses that both included identifying information and disclosed personal information such as financial, health, or other circumstances were not public records and thus not subject to production. The Representatives were required to produce the rest of the survey responses even if they contained identifying information such as name, email address, mailing address, or telephone number. However, if a constituent requested identifying information be kept confidential, the Representatives redacted that information before making the survey response available. Ultimately, the Representatives produced 925 survey responses for inspection by CRP and withheld 659 survey responses as confidential constituent communications.

As custodians of public records, legislators should realize that not all constituent communications are exempt from production under CORA. Only constituent communications that were made with an expectation of confidentiality may be withheld.

Award of attorney fees and costs to prevailing applicant under CORA

Once it was settled which constituent survey responses the Representatives must produce for inspection and which remained confidential, CRP filed a claim for its attorney fees and costs in this matter. The District Court denied CRP’s motion for attorney fees and costs after finding that: 1) The Representatives’ response to the CORA request was proper with respect to the confidential survey responses; and 2) after considering the relative success of each party in the litigation, CRP was not a “prevailing applicant” within the meaning of 24-72-204 (5), C.R.S. CRP appealed the District Court’s decision to the Court of Appeals.

The Court of Appeals held that a party who obtains disclosure of even one improperly withheld public record after bringing a 24-72-204 (5), C.R.S., action is a prevailing applicant who must be awarded court costs and reasonable attorney fees. Because CRP obtained the right to inspect documents it sought from the Representatives, the Court of Appeals concluded that CRP was a prevailing applicant within the meaning of the statute. The Court of Appeals remanded the matter back to the District Court to determine the amount of costs and fees to award to CRP. (See 2013 Colo. App. LEXIS 821)

The Representatives appealed to the Colorado Supreme Court. The Supreme Court determined that, when construed properly, the statutory provision mandates an award of costs and reasonable attorney fees in favor of any person who applies for and receives an order from the District Court requiring a custodian to permit inspection of a public record. While affirming the Court of Appeals’ decision, the Supreme Court did hold that, in awarding fees and costs to the “prevailing applicant”, it is necessary for the District Court to apportion the fees and costs among the applicant’s successful and unsuccessful efforts. (See 2014 Colo. LEXIS 521) The District Court has not yet taken this matter up again.

As custodians of public records, legislators should realize that a CORA requestor will be entitled to at least a portion of his or her legal fees and costs incurred to obtain just one public record that is improperly withheld from inspection.

If you are a member of the General Assembly and you receive an open records request, please contact the OLLS. For more information on what to do if you are “CORA’d”, please see the previous LegiSource article on CORA.

by Bob Lackner

Currently some 16 states, including Colorado, make it a crime to make false statements in political campaigns. In the recently decided case of Susan B. Anthony List v. Driehaus, No. 13-193 (U.S. June 16, 2014), the U.S. Supreme Court addressed the ground rules that govern when a person chooses to challenge the constitutionality of one of those laws. The court held that a group may have standing to claim the protections of the First Amendment before being convicted of the crime of issuing false statements during a political campaign if the group that challenges the law is accused of violating the law and is likely to be accused of violating the law again. (more…)

by Anshu Agarwal and Bart Miller

On June 19, 2014, the U.S. Supreme Court held unanimously that government employees are protected under the First Amendment if they provide truthful sworn testimony that is outside of their regular job responsibilities. (more…)

by Julie Pelegrin

The Establishment Clause within the First Amendment to the United States Constitution states that “Congress shall make no law respecting an establishment of religion…” Similarly, section 4 of article II of the Colorado Constitution states in part, “…Nor shall any preference be given by law to any religious denomination or mode of worship.” In many cases, the United States Supreme Court has interpreted the federal provision to require not only government neutrality as to religion, but also to require a separation between government and religion.

But, each morning during the legislative session, the Speaker of the House and the President of the Senate ask everyone in their chambers to rise for the morning prayer. Over the years, leaders of a wide variety of religions have been invited to lead the prayer, including Catholics, Lutherans, Methodists, Baptists, Mennonites, Presbyterians, Nondenominational Christians, Jews, Hindus, Southern Utes, and Ute Mountain Utes. How can it be constitutional for the legislature to say a prayer every day before it begins working? (more…)

by Esther van Mourik

A panel of the U.S. 10th Circuit Court of Appeals in Denver recently ruled on the so-called “Amazon tax” in the DMA v. Barbara Brohl case.  The ruling was a blow to out-of-state retailers seeking to avoid meeting certain reporting requirements or having to collect state sales tax from its Colorado customers on their purchases. (more…)

by Julie Pelegrin

Using public moneys to pay the tuition at a religious school does not violate Colorado’s constitutional requirements for separation of church and state. At least that’s what the Colorado Court of Appeals has ruled. The Court recently reversed a district court opinion and held that the Douglas County School District’s choice scholarship program is constitutional. In addition to providing guidance for interpreting several sections of the constitution, the opinion also provides interesting rulings concerning the ability of a taxpayer to enforce state law and the standard for interpreting school district policies. (more…)