May 23, 2013

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Colorado Court of Appeals: No Violation of Laws or Constitution When District Offers Scholarships to Students of Private Schools

March 7, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Taxpayers for Public Education v. Douglas County School District on Thursday, February 28, 2013.

Choice Scholarship Program—Standing—Public School Finance Act of 1994—Colorado Constitution.

In 2011, the Douglas County Board of Education (County Board) adopted the Choice Scholarship Program (CSP). Pursuant to the CSP, parents of eligible elementary school, middle school, and high school students residing in the Douglas County School District (District) may choose to have their children attend certain private schools, including some with religious affiliation. The District would pay parents of participating students “scholarships” covering some of the cost of tuition at those schools, and the parents would then remit the scholarship money to the schools.

Plaintiffs are nonprofit organizations, Douglas County taxpayers, District students, and parents of District students. They filed suit to enjoin implementation of the CSP, claiming that it violates the Public School Finance Act of 1994, CRS §§ 22-54-101 to -135 (Act), and various provisions of the Colorado Constitution.

Plaintiffs claimed that the CSP violated the Act because the District will impermissibly use state money distributed by the Colorado Department of Education to pay for private school tuition at private schools. The Court of Appeals did not reach the merit on this claim, however, because it found that plaintiffs did not have standing to bring a private cause of action seeking enforcement of the Act.

Plaintiffs further contended that the court erred in rejecting their claim alleging a violation of article IX, § 2, of the Colorado Constitution, which requires the General Assembly to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.” Article IX, § 2 plainly is not violated where a local school district decides to provide educational opportunities in addition to the free system the Constitution requires. It also is not violated merely because some students’ parents may choose to have their children forego the available opportunity to attend a school within the system the Constitution requires. Therefore, plaintiffs failed to prove beyond a reasonable doubt that the CSP violates the Colorado Constitution.

Plaintiffs also contended that the court erred in rejecting their claim alleging a violation of article IX, § 3, of the Colorado Constitution because the public school fund is used for private schools. There was no record support for this argument. Therefore, the Court assumed that the CSP was funded out of the 95% of total per-pupil revenue that does not come from the public school fund.

Plaintiffs further argued that the CSP violated article IX, § 15, of the Colorado Constitution, and that the district court erred in ruling to the contrary. However, article IX, § 15, does not apply to the CSP because the directors of the boards of education of local school districts have control of instruction in the public schools of their respective districts.

Plaintiffs also argued that the CSP violated article II, § 4; article V, § 34; and article IX, §§ 7 and 8, of the Colorado Constitution. The CSP is neutral toward religion generally and toward religion-affiliated schools specifically. The CSP is intended to benefit students and their parents, and any benefit to the participating schools is incidental. Further, the CSP does not compel anyone to do anything, much less attend religious services. To the extent students would attend a particular private school or religious services at that school, they would do so as a result of parents’ voluntary choices. Therefore, the CSP does not violate the Colorado Constitution.

Finally, plaintiffs argued that the CSP violated article V, § 34, of the Colorado Constitution by providing funds to private schools and religious organizations. The General Assembly appropriates state money for elementary and secondary education to the Colorado Department of Education, which in turn distributes it to local school districts in the form of total per pupil revenue. At that point, ownership of the funds passes to the local school districts. The District’s expenditure of funds under the CSP, therefore, does not constitute an appropriation by the General Assembly. As a result, the CSP does not violate article V, § 34.

Summary and full case available here.

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SB 13-011: Authorizing Civil Unions in Colorado

January 25, 2013 by 2 Comments

On Wednesday, January 9, 2013, Sen. Pat Steadman introduced SB 13-011 – Concerning Authorization of Civil Unions. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates the “Colorado Civil Union Act” (Act) to authorize any two unmarried adults, regardless of gender, to enter into a civil union. Parties wanting to enter into a civil union apply to a county clerk and recorder for a civil union license. Certain persons may certify a civil union. After the civil union is certified, the officiant files the civil union certificate with the county clerk and recorder. A priest, minister, rabbi, or other official of a religious institution or denomination or an Indian nation or tribe is not required to certify a civil union in violation of his or her right to free exercise of religion. The criteria for a valid civil union are set forth in the bill.The CBA LPC voted to support this legislation on Jan. 18, 2013. Assigned to the Judiciary Committee.

 

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Colorado Court of Appeals: “Colorado Day of Prayer” Proclamations Violated Preference Clause of State Constitution

May 15, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Freedom From Religion Foundation, Inc. v. Hickenlooper on May 10, 2012.

Taxpayers—Religion—Proclamation—Preference Clause of the Colorado Constitution—Standing.

Plaintiffs, Freedom from Religion Foundation, Inc. (FFRF) and four of its members (taxpayers), appealed the trial court’s determination that the Governor’s proclamations did not violate the Preference Clause, which is Colorado’s equivalent of the First Amendment’s Establishment Clause. The Governor cross-appealed the trial court’s conclusion that FFRF and the taxpayers had standing to bring this case. The Court of Appeals reversed the order in part and affirmed it in part, and remanded the case.

The taxpayers are citizens of Colorado who pay Colorado taxes. FFRF is a Wisconsin nonprofit organization that is registered to do business in Colorado. Each year from 2004 to 2009, Colorado’s Governor issued an honorary proclamation for the first Thursday of May to be the “Colorado Day of Prayer.” Plaintiffs’ complaint alleged that the proclamations violated the Preference Clause of the Religious Freedom section in Colorado Constitution, Article II, § 4, and asked the court to issue an injunction enjoining the Governor from issuing such proclamations in the future.

The Governor contended on appeal that FFRF and the taxpayers do not have standing. The claim herein arises out of a legally protected interest under the Constitution. Further, there is a nexus between the taxpayers and the governmental action of issuing the Colorado Day of Prayer proclamations. Specifically, the record shows that, although the exact amount is not clear, state funds were spent each year to issue the proclamation. Such a nexus, though slight, is sufficient for standing in Colorado. Therefore, the taxpayers had standing to bring this claim.

The Court determined that the six Colorado Day of Prayer proclamations at issue here were governmental conduct that violated the Preference Clause. The Court concluded that the proclamations (1) express the Governor’s support for their content, which is predominantly religious; (2) lack a secular context; and (3) constitute a government endorsement of religion over non-religion. Accordingly, the court’s order entering summary judgment in favor of the Governor was reversed.

Summary and full case available here.

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Colorado Court of Appeals: Prohibition on Demonstrating with Gruesome Images on Posters Was Narrowly Tailored and Supported by Compelling Government Interest

May 1, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in St. John’s Church in the Wilderness v. Scott on April 26, 2012.

First Amendment—Law of the Case Doctrine.

This appeal followed the remand ordered in St. John’s in the Wilderness v. Scott, 194 P.3d 475 (Colo.App. 2008) (St. John’s I).The order was affirmed.

Plaintiffs, St. John’s Church in the Wilderness and two parishioners, Charles I. Thompson and Charles W. Berberich, brought claims for private nuisance and conspiracy to commit private nuisance against defendants Kenneth Tyler Scott and Clifton Powell. Specifically, defendants had demonstrated their opposition to abortion and homosexuality on the public street and sidewalk across the street from the church during an outdoor Palm Sunday service that began on Church property. Defendants shouted and carried signs, some of which included images of aborted fetuses.

On appeal, defendants contended that St. John’s I wrongly abridged their First Amendment rights and, because controlling law had changed since St. John’s I was decided, the Court of Appeals need not follow it as law of the case. St. John’s I expressly addressed the arguments that defendants raised here, and the new cases cited by defendants follow established precedent. Therefore, the Court declined to address those issues decided by St. John’s I.

Defendants also contended that the trial court failed to obey directions imposed in St. John’s I. On remand, the trial court removed “at all times on all days” and added “on days on which they engage in any conduct proscribed by this injunction.” Although the original prohibition was vacated, the court did not abuse its discretion with this new language.

Defendants further contended that prohibiting speech that causes parishioners “to become physically upset” and the prohibition from carrying posters “depicting gruesome images of mutilated fetuses or dead bodies” impermissibly restrict their First Amendment rights. The prohibition related to speech causing members of the congregation “to become physically upset” was vacated. Plaintiffs conceded that prohibiting “shouting or yelling . . . in a manner reasonably calculated to . . . disrupt parishioners’ ability to worship” and the church’s “ability to use its property for worship services” adequately protects their interests. On the other hand, the language prohibiting the gruesome posters was affirmed. The court determined the prohibition was narrowly tailored, and was supported by a compelling governmental interest in protecting children from disturbing images.

Summary and full case available here.

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SB 12-093: Requiring Hospitals to Provide Notice When Services Denied Due to Religious Reasons

February 27, 2012 by Leave a Comment

On January 19, 2012, Sen. Morgan Carroll and Rep. Cristana Duran introduced SB 12-093 – Concerning a Requirement that a Licensed Hospital Provide Notice to Patients of Any Service Not Provided By the Hospital Because of Moral Convictions Based on Religious Beliefs. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires hospitals licensed in Colorado to provide notice in a manner specified by the department of public health and environment of all services that the hospital refuses to provide because of religious beliefs or moral convictions. The bill requires the notice to inform patients of their right to obtain any service not provided by the hospital because of religious beliefs or moral convictions from another hospital that does provide the service. Requires the notice to be made available prior to or at admission of the patient or as soon after admission as practicable. On February 16, the Health and Human Services Committee referred the unamended bill to the full Senate for consideration on 2nd Reading.

Since this summary, the 2nd Reading was laid over daily until February 24.

Summaries of other featured bills can be found here.

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Colorado Court of Appeals: Religious Organization’s Function Not Primarily Religious and Therefore Unemployment Compensation Wrongfully Denied

February 8, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Harbert v. Industrial Claim Appeals Office on February 2, 2012.

Unemployment Compensation—Exemption Under CRS § 8-70-140(1)(a)

Claimant sought review of a final order of the Industrial Claim Appeals Office (Panel) affirming the hearing officer’s decision that she was not entitled to unemployment compensation benefits because she was not engaged in covered employment when she was terminated. The Panel’s order was set aside and the case was remanded.

From March 2007 until October 2010, claimant worked in a resale store operated by Evergreen Christian Outreach (EChO). According to its mission statement, EChO was founded by a group of churches in Evergreen “to provide assistance to residents of the Evergreen mountain communities who are unemployed, under-employed, dealing with a long-term illness, or experiencing other forms of personal crisis.” The resale store where claimant worked provides a major source of funding for EChO’s outreach programs. EChO’s facilities are located on the grounds of an Episcopal church, but the resale store is located in a private commercial space.

Claimant separated from her employment and applied for unemployment benefits. A deputy denied her claim, concluding that EChO is a religious organization. The hearing officer also denied her claim because her work was performed for an organization operated primarily for religious purposes and is operated, supervised, controlled, or principally supported by an association of churches. The Panel affirmed and claimant appealed.

The Court of Appeals examined the stipulation under CRS § 8-70-140(1)(a) that exempts an organization if it “is operated primarily for religious purposes and . . . is operated, supervised controlled, or principally supported by a church or convention or association of churches.” Claimant argued that EChO is a nonprofit organization whose primary function is to operate a community food bank and provide limited or temporary assistance for those in need in the Evergreen community. She claimed the work was primarily secular in nature and that EChO is not operated primarily for religious purposes.

The Court looked to the test set forth in Samaritan Institute v. Prince Walker, 883 P.2d 3 (Colo. 1994), in which the controlling factor is “the type of activity actually engaged in, rather than the motivation and impetus for the activity.” In reviewing the hearing officer’s analysis, the Court noted that EChO’s activities were not sufficiently evaluated. The officer observed that EChO’s primary function, the provision of services such as food and clothing, is “not religious per se.” In addition, EChO was a separate legal entity from the churches that founded it. The primary purpose and activity carried out by EChO was the provision of assistance services to those in need, regardless of their religious affiliation or beliefs. Although its motivation was religious, it was operated primarily to perform charitable work for disadvantaged individuals in Evergreen. The Court concluded that the Panel misapplied the law and held that EChO was not exempt under the statute.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 2, 2012, can be found here.

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2013-05-23 08:14:35