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.

by Brita Darling

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 Jeremiah Barry

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

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

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

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

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

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

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

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

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 Julie Pelegrin

Less than two years after the Supreme Court held in State v. Lobato that Colorado’s public school financing system complies with the constitutional requirement to provide a “thorough and uniform” system of public education, parents and school districts are again suing to increase the amount of state money appropriated for public schools. The new lawsuit – Dwyer v. State of Colorado – focuses on the negative factor and whether it violates the constitutional requirement to increase the amount of statewide base per pupil funding by inflation each year. To better understand the plaintiffs’ claim, we’ll start with some background on how the state funds its public schools.

Calculation of Total Program Funding and Amendment 23
Under the “Public School Finance Act of 1994,” the department of education annually calculates the amount of operating money – called “total program funding” – that each school district receives. The calculation starts with the statewide base per pupil funding amount, which the General Assembly sets each year in statute. The department multiplies this amount by factors that account for each school district’s size and cost of living.  This sum is the school district’s “per pupil funding.” The department multiplies the school district’s per pupil funding by the number of pupils enrolled in the district then adds certain amounts for the at-risk pupils, multi-district on-line pupils, and ASCENT program pupils that the school district enrolls. Before the 2010-11 fiscal year, this final sum was a school district’s total program funding.

Total program funding is paid with a combination of school district tax revenues and state money. The department of education figures how much a school district will receive in local property tax and specific ownership tax revenues each year. The department subtracts this amount from the school district’s total program, and the amount that’s left is paid using state money. This amount is called the “state share” of total program funding.

In 2000, the voters of Colorado passed a citizens’ initiative – Amendment 23 – that requires the General Assembly to increase the amount of statewide base per pupil funding by inflation plus one percent every year for fiscal years 2001-02 through 2010-11 and by inflation every fiscal year thereafter. As explained earlier, statewide base per pupil funding is important because it’s the basis for calculating how much each school district receives in total program funding each year.

Creation of the Negative Factor
In 2010, the nationwide recession caused a significant decrease in the state’s revenues, and there was not enough money available to pay each school district’s state share of total program funding and all of the other costs of state government. The General Assembly amended the School Finance Act to create what is known as the “negative factor.” This factor is a percentage reduction in each school district’s total program funding to ensure that the state’s revenues are sufficient to pay the state’s share of total program funding for school districts and the other expenses of state government.

Each year since 2000, the General Assembly has increased the amount of statewide base per pupil funding by at least the amount required in Amendment 23. However, because of the negative factor, the General Assembly in the 2014-15 fiscal year appropriated about $894.2 million less than it would have otherwise appropriated to fund the state share of total program funding.

Constitutional Challenge to the Negative Factor
Last June, a group that includes parents of students enrolled in public schools, educational organizations, and school districts – we’ll refer to them generally as “the parents” – filed suit against the State of Colorado, Education Commissioner Robert Hammond, and Governor John Hickenlooper – we’ll refer to them as “the state” – claiming that the statute that creates the negative factor is unconstitutional. The parents claim that the voters who approved Amendment 23 understood that it required total program funding levels to increase each year, regardless of other state funding or revenue needs. They argue that the negative factor actually is applied to and reduces the statewide base per pupil funding and that it therefore violates the requirements of Amendment 23.

Last August, the state filed a motion to dismiss the lawsuit. The state argued that the General Assembly has fully complied with the plain language of Amendment 23, which requires annual increases to statewide base per pupil funding, but does not require increases in total program funding for school districts.

The trial court issued an order in November of 2014 denying the state’s motion to dismiss. The trial court found that, since Amendment 23 prescribes minimum increases in the state funding for public education, the parents alleged sufficient facts by asserting that the negative factor reduces funding for school districts below the level that Amendment 23 requires.

Supreme Court Proceedings
Last January, the state asked the Colorado Supreme Court to exercise its original jurisdiction and issue a rule that the General Assembly’s actions to annually increase the statewide base per pupil funding amount comply with the requirements of Amendment 23, regardless of the negative factor. The Supreme Court directed the parents to file written answers as to why the Court should not grant the state’s request for a rule.

The parents have filed their answer, which makes generally the same arguments as the complaint – that the negative factor actually operates to reduce the statewide base per pupil funding and therefore violates Amendment 23. The parents also argue that, when Amendment 23 passed, the voters understood the language of Amendment 23 to be increasing per pupil expenditures.

The state has also filed its reply, which makes generally the same arguments as the motion to dismiss the lawsuit – that the language of Amendment 23 is plain and unambiguous and it requires only increases in the statewide base per pupil funding amount; it does not address the General Assembly’s authority to change or add any factors within the formula. The state argues that the General Assembly has increased the statewide base per pupil funding amount each year since Amendment 23 passed, and the negative factor has never reduced a school district’s per pupil funding amount below the statewide base.

So now, we wait for the Supreme Court to decide. If the Supreme Court decides to exercise its original jurisdiction and rules in the state’s favor, that would essentially decide the case. However, if the Supreme Court does not exercise its original jurisdiction, or if it rules in favor of the parents, the case may return to the district court for a full trial. Could be a long summer….

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.