July 18, 2019

Colorado Court of Appeals: State’s Interest in Ascertaining Truth Paramount Over Witness’s Religious Freedom Claims

The Colorado Court of Appeals issued its opinion in People v. Ray on Thursday, March 8, 2018.

Death PenaltyPostconviction—Freedom of Religion—First Amendment—Refusal to Testify—Direct Contempt—Rational BasisStrict Scrutiny.

Ray was sentenced to death in a first degree murder case. Ray’s attorneys hired Lindecrantz as an investigator to assist them in the penalty phase of the case.

The trial court began the required postconviction review of Ray’s conviction and sentence. Ray sought postconviction relief, in part alleging ineffective assistance of counsel. Part of that claim challenges Lindecrantz’s investigation. The prosecution subpoenaed Lindecrantz to testify. She moved to quash, arguing that as a devout Mennonite she is opposed to the death penalty on religious grounds and she feared that in truthfully answering the prosecutor’s questions, she would provide information from which the prosecutor could argue that Ray received effective assistance, which could lead to upholding the conviction and death sentence.

The trial court denied the motion to quash, finding that under either a rational basis or strict scrutiny analysis, Lindecrantz’s sincerely held religious beliefs did not justify her refusal to answer questions under oath in response to the subpoena. She took the stand and refused to testify. The court ultimately found her in direct contempt and remanded her to the sheriff’s custody “until she elects to answer the questions” as a remedial sanction. She has been in jail since February 26 of this year.

On appeal, Lindecrantz argued that being called as a witness for the prosecution makes her a “tool” or “weapon” of the prosecutor’s efforts to execute Ray. She would answer the trial court’s questions on direct examination and the prosecutor’s and defense counsel’s questions on cross-examination, but does not want to answer the prosecutor’s questions on direct examination. The court of appeals weighed the substantial burden on Lindecrantz’s religious beliefs against the state’s compelling interests in ascertaining the truth and rendering a just judgment in accordance with the law and concluded that Lindecrantz’s position fails under both a rational basis and strict scrutiny analysis. Lastly, holding Lindecrantz in contempt is narrowly tailored to advance the government’s compelling interests.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Christian-Themed Child Care Center Not Religious Organization for Purposes of CESA

The Colorado Court of Appeals issued its opinion in A Child’s Touch v. Industrial Claim Appeals Office on Thursday, December 31, 2015.

Child Care Center—Elementary School—Kindergarten—Unemployment Compensation Benefits—Religious Organization—Exemption.

A Child’s Touch is a state-licensed child care center providing infant and toddler day care, preschool, and kindergarten programs for children from 6 weeks to 6 years of age, and a summer camp for children ages 6 to 12 years. Christian-themed iconography, prayers, and devotions are incorporated into its daily curriculum. Claimant served as a maintenance worker at A Child’s Touch from approximately 1997 until his termination in September 2013, when his position was eliminated while he was on medical leave for double hip replacement surgery. A Child’s Touch denied claimant’s unemployment compensation claim, and the hearing officer upheld the denial. The Industrial Claim Appeals Office (Panel) set aside the hearing officer’s decision and awarded claimant benefits.

On appeal, A Child’s Touch argued that claimant was not in covered employment and that, as a religious organization, it was exempt from unemployment compensation taxes under the Colorado Employment Security Act (CESA). A Child’s Touch was not principally supported by a church or association of churches at the relevant period of time. Further, a child care facility that offers day care, preschool, and kindergarten, but does not teach any higher grades, is not an “elementary school” for purposes of a religious exemption from unemployment compensation taxes under CRS § 8-70-140(1)(a). Accordingly, the Panel correctly determined that A Child’s Touch is not entitled to a religious exemption from unemployment compensation taxes under CESA. Accordingly, the Panel’s order was affirmed, and the case was remanded to the Division of Unemployment Insurance to determine claimant’s entitlement to and eligibility for unemployment compensation benefits.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: En Banc Rehearing Denied Sua Sponte in Little Sisters Case

The Tenth Circuit Court of Appeals issued a denial of en banc rehearing sua sponte on September 3, 2015, in the three combined cases of Little Sisters of the Poor v. BurwellSouthern Nazarene University v. Burwell, and Reaching Souls International v. Burwell. Although plaintiffs filed petitions for certiorari directly to the Supreme Court, the Tenth Circuit sua sponte considered en banc rehearing of the case. A majority of the active judges on the court voted to deny. Judges Kelly, Hartz, Tymkovich, Holmes, and Gorsuch voted to grant rehearing.

Judge Hartz wrote a separate dissent from the denial of en banc rehearing, which was joined by Judges Kelly, Tymkovich, Gorsuch, and Holmes. In his dissent, Judge Hartz opined that the opinion in Little Sisters of the Poor v. Burwell gravely misconstrued the issues. Judge Hartz found that the imposition of hefty fines for failure to comply with the opt-out provision of the Affordable Care Act’s birth control mandate constituted a substantial burden, and that the majority mistakenly characterized the plaintiffs’ sincerely held religious belief as being in opposition to the provision of birth control, rather than that execution of the opt-out documents is itself sinful. The majority’s reasoning held that there was no religious objection to the execution of the forms. Judge Hartz believed this was in error. He believed that the majority’s position was a dangerous approach to religious liberty, and opined that the majority opinion “will not long survive” because it is “contrary to all precedent concerning the free exercise of religion.” Judge Hartz would have set aside the panel decision and returned the case to determine whether the certification requirement is the least restrictive means of furthering a compelling government interest.

Tenth Circuit: Utilizing Religious Accommodation Is Not Substantial Burden on Religious Exercise

The Tenth Circuit Court of Appeals issued its opinions in Little Sisters of the Poor v. BurwellSouthern Nazarene University v. Burwell, and Reaching Souls International v. Burwell on Tuesday, July 14, 2015.

Plaintiffs in the three companion cases are non-profit religious organizations who contend that the religious exemption to the Affordable Care Act’s birth control mandate substantially burdens their free exercise of religion. The Affordable Care Act requires employer-sponsored health plans to meet minimum coverage requirements, including covering preventive health care services. Coverage of women’s preventive health care services must include all FDA approved contraceptives, sterilization procedures, and patient education and counseling. An exemption for nonprofit religious employers was created in the Act, and a religious employer can receive the exemption if it (1) has religious objections to providing some or all of the contraceptive services mandated by the Act, (2) is organized and operates as a non-profit entity, (3) holds itself out as a religious organization, and (4) self-certifies that it satisfies the first three criteria. In order to utilize the exemption, organizations must submit a form to their health insurance issuer or third-party administrator notifying the insurer that the organization is exempt from the contraception mandate. This triggers a requirement that the insurer fulfill the contraception mandate without sharing costs with the exempt organization.

The religious organizations objected to the exemption procedures, contending that by sending the form to their insurers, they were complicit in the provision of contraception because sending the form triggers the insurers’ responsibility to provide contraception coverage. Plaintiffs argued that by sending the form and triggering the insurers’ coverage requirement, their right to free exercise of religion was substantially burdened. The district courts reached different conclusions in each of the three cases before the Tenth Circuit, denying a preliminary injunction in the Little Sisters case but granting it in the Southern Nazarene and Reaching Souls cases.

In the Little Sisters case, the district court determined that complying with the accommodation scheme would not impose a substantial burden on the businesses’ religious exercise. The court’s analysis of the preliminary injunction factors “began and ended by examining whether the plaintiffs would suffer irreparable injury if the requested relief were denied” and found it was the court’s duty to determine how the regulations operate as a matter of law. The district court concluded the accommodation scheme does not require Little Sisters to provide or participate in the provision of contraceptive coverage.

In Southern Nazarene, the district court analyzed the plaintiffs’ likelihood of success on the merits and determined the form imposed a substantial burden on plaintiffs’ sincere religious exercise. The court determined the government failed to show a compelling governmental interest or showed its approach was the least restrictive approach, and granted the preliminary injunction.

In Reaching Souls, the district court also analyzed the plaintiffs’ likelihood of success on the merits. The court rejected the government’s argument as a “variation of a proposition rejected” in Hobby Lobby, and emphasized that regardless of whether signing the form actually triggered the provision of contraceptive services, the plaintiffs believed signing the form signaled their tacit approval or complicity. The district court granted a preliminary injunction.

Before reaching the merits of the appeals, the Tenth Circuit highlighted the unusual nature of the plaintiffs’ claims. The Tenth Circuit distinguished the Hobby Lobby case and other RFRA cases, since those plaintiffs could not avail themselves of the religious employer exemption. The Circuit quoted its closest analog case, United States v. Friday, noting “‘Law accommodates religion; it cannot wholly exempt religion from the reaches of the law.'”

The Tenth Circuit admonished the religious organizations, noting that whether the form constitutes a substantial burden is a legal question to be left to the courts, not a subjective matter for an organization to decide. Finding the accommodation permissible under the RFRA, the Tenth Circuit noted that the plaintiffs do not “trigger” contraceptive coverage by opting out of direct provision because federal law, not the act of plan participants, mandates contraceptive coverage. Rather than becoming complicit in the contraceptive scheme, opting out relieves the plaintiffs of all complicity. The Tenth Circuit characterized the form completion as a de minimus administrative task. Although the plaintiffs and the dissent argue that by opting out the plaintiffs cause the legal responsibility for providing coverage to shift to the insurer, the Tenth Circuit found that shifting the responsibility to the insurer relieved the organization of its obligation to provide coverage. The Circuit noted that such arrangements are common and among permissible methods of religious accommodation in a pluralist society.

Analyzing the RFRA, the Tenth Circuit again stressed that “whether a law substantially burdens religious exercise . . . is a matter for courts—not plaintiffs—to decide.” Courts need not question whether a religious petitioner correctly perceived the commands of his or her faith, but rather whether a challenged law or policy substantially burdens religious exercise. The Tenth Circuit noted “accepting any burden alleged by Plaintiffs as ‘substantial’ would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise.” The Tenth Circuit found that accommodations such as the exemption at issue may eliminate burdens on religious exercise or reduce them to de minimus administrative tasks.

The Tenth Circuit rejected the plaintiffs’ argument that delivering the form “triggers” contraceptive coverage, emphasizing that federal law, not the form or delivery, mandates coverage. It found that the arrangement shifting responsibility of coverage “is typical of religious objection accommodations that shift responsibility to non-objecting entities only after an objector declines to perform a task on religious grounds.” The Tenth Circuit instructed that a religious accommodation reconciles rule of liberty with rule of law, so that when a religious institution is faced with a conflict between following the law or following religious belief, the religious objector can seek exception from the law without having to break it. The Tenth Circuit noted that shifting the burden from an objecting party to a non-objecting one is the point of accommodation.

The Tenth Circuit next turned to the plaintiffs’ arguments that the act of opting out makes them feel complicit in the overall contraceptive coverage scheme. The Tenth Circuit was not persuaded. Instead, it found that the exemption serves to ensure that plaintiffs are not complicit in the delivery of contraceptive services: “Opting out sends the unambiguous message that they oppose contraceptive coverage and refuse to provide it.” Since the only involvement of plaintiffs in the scheme of contraceptive coverage is the act of opting out, the Tenth Circuit found this did not impose a substantial burden, noting that all opt-out schemes require some affirmative action and having to file paperwork does not alone substantially burden religious exercise. The Tenth Circuit that plaintiffs’ religious objections cannot hamstring government efforts to ensure plan participants receive the coverage to which they are legally entitled.

Turning next to the plaintiffs’ First Amendment arguments, the Tenth Circuit found no merit in plaintiffs’ contention that the exemption requirement simultaneously compels and silences their speech in violation of the First Amendment. The Tenth Circuit applied the same analysis to the First Amendment claims as it applied to the RFRA claims. The Tenth Circuit found the ACA neutral and generally applicable, and determined the exemption “was developed to facilitate the free exercise of religion, not to target religious groups or burden religious practice.”

The Tenth Circuit affirmed the district court’s denial of a preliminary injunction in Little Sisters and reversed the district court’s grant of a preliminary injunction in Southern Nazarene and Reaching Souls. Judge Baldock dissented.

Colorado Supreme Court: District Scholarship Program Violates Colorado Constitution

The Colorado Supreme Court issued its opinion in Taxpayers for Public Education v. Douglas County School District on Monday, June 29, 2015.

Standing—Aiding Religious Schools—Colo. Const. Art. IX, § 7.

Four years ago, the Douglas County School District implemented its Choice Scholarship Pilot Program (CSP), a grant mechanism that awarded taxpayer-funded scholarships to qualifying elementary, middle, and high school students. Those students could use their scholarships to help pay their tuition at partnering private schools, including religious schools. The Supreme Court granted certiorari to determine whether the CSP comports with both the Public School Finance Act of 1994, CRS §§ 22-54-101 to -135 (Act), and the Colorado Constitution. The Court first held that petitioners lacked standing to challenge the CSP under the Act. The Court further held, however, that the CSP violates Article IX, § 7 of the Colorado Constitution. Accordingly, the Court reversed the judgment of the court of appeals and remanded the case so that the trial court may reinstate its order permanently enjoining the CSP.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: No Injury Sufficient to Establish Taxpayer Standing for “Colorado Day of Prayer” Suit

The Colorado Supreme Court issued its opinion in Hickenlooper, Governor of Colorado v. Freedom from Religion Foundation, Inc. on Monday, November 24, 2014.

Preference Clause of Colorado Constitution—Taxpayer Standing—Individual Standing.

In this case, the Supreme Court determined whether respondents, Freedom from Religion Foundation and four of its Colorado members, have standing to sue Governor John Hickenlooper for issuing annual honorary proclamations recognizing a “Colorado Day of Prayer.” The Court held that the use of public funds to cover the incidental overhead costs associated with issuing the honorary proclamations does not, by itself, constitute an injury sufficient to establish taxpayer standing. Furthermore, the psychic harm endured by respondents as a result of media coverage revealing the existence of the honorary proclamations does not, by itself, constitute an injury sufficient to establish individual standing. Accordingly, the Court reversed the judgment of the court of appeals and remanded the case with instructions to return the case to the trial court for dismissal.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: No Agency Relationship Existed Between Purported Ministers and Church that would Supersede Tax Liability

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hartshorn on Monday, June 2, 2014.

Kevin Hartshorn was the head minister of the Church of Compassionate Service, which he founded in 2004. Hartshorn encouraged members to become “ministers,” whereby they would transfer all of their assets to the church and assign all of their income to the church. Hartshorn assured ministers that by transferring all of their assets and income to the church and taking a vow of poverty and obedience, they would be exempt from personal income tax liability. Approximately 90% of each minister’s earnings were returned to the minister as “local ministry funding.” The district court issued an injunction against Hartshorn under 26 U.S.C. § 7408, and Hartshorn appealed.

The Tenth Circuit analyzed the five factors for issuing injunctive relief: “(1) Defendant organized an entity, plan, or arrangement; (2) he made false or fraudulent statements concerning the tax benefits to be derived from the entity, plan, or arrangement; (3) he knew or had reason to know that the statements were false or fraudulent; (4) the false or fraudulent statements pertained to a material matter; and (5) an injunction was necessary to prevent recurrence of this conduct.” Only factors two and three were in dispute; Hartshorn argued that he did not believe the statements regarding non-payment of income taxes to be false or fraudulent. The Tenth Circuit considered whether a minister’s income is tax exempt only if he receives it as an agent of the church or whether it is sufficient that a minister assigns earnings to his church pursuant to a vow of poverty, and noted that all of the circuit courts that had considered the issue had determined that a minister must earn income as an agent of his church in order for his earnings to be tax exempt. Next, the Tenth Circuit examined the agency relationship between Hartshorn’s ministers and the church, and determined that there was no agency relationship – the ministers continued their life as usual with the sole exception that their paychecks were deposited in a church account instead of a personal account.

The Tenth Circuit affirmed the injunction, concluding a reasonable person in Hartshorn’s position would know that his representations regarding the tax consequences of the ministers’ actions were false. Judge O’Brien concurred eloquently.

Tenth Circuit: No First Amendment Violation for Non-Mandatory Attendance Order

The Tenth Circuit Court of Appeals issued its opinion in Fields v. City of Tulsa on Thursday, May 22, 2014.

Paul Fields was a captain in the Tulsa, Oklahoma police department (TPD). At the time of the events in question, Captain Fields commanded 26 officers and five supervisors. The chain of command above him was Major Julie Harris, Deputy Chief Webster, and Chief Jordan. After the FBI reported a threat against Tulsa’s Islamic Society, TPD provided protection for the mosque and the school next door. The Society decided to host a “Law Enforcement Appreciation Day” on March 4, 2011, to thank law enforcement for its protection during the threat, and distributed a flyer offering refreshments, mosque tours, and presentations about Islam upon request. The event was not mandatory but RSVPs were requested. When there were no RSVPs by February 17, Major Harris forwarded an email from Webster ordering each shift to send two officers and a supervisor or commander to the event.

Fields responded with an email to his lawyer, Webster, Harris, Jordan, and several of his subordinates, indicating that he would not follow the directive to attend the event and that he felt the requirement to attend the Society event violated his civil rights. Webster responded the following day, noting that the Islamic Society was going to great pains to host the event, Fields was not himself required to attend because he could order his subordinates to attend, and if he continued with his refusal, Fields would be subject to discipline. Fields responded that he had conferred with his counsel and would not attend. He also refused to order subordinates to attend. He was then served with discipline papers transferring him to another division and stating that he would be investigated by TPD Internal Affairs.

Fields filed a complaint, naming Webster as the only defendant, but subsequently amended it to include the City of Tulsa and Chief Jordan. Fields alleged violations of his First Amendment right to free exercise of religion, the Establishment Clause, his right to free association, and the Equal Protection Clause. Fields sought damages, a declaration that his rights had been violated, an injunction prohibiting the enforcement of the policies that led to his punishment, and the expungement from his personnel file of all references to the incident. After some litigation, the district court granted summary judgment for defendants, and Fields appealed to the Tenth Circuit.

First, the Tenth Circuit evaluated Fields’ claim that defendants violated his right to free exercise of religion because of the attendance order. However, Fields was not personally required to attend the Society program — he could have ordered a subordinate to attend in his place — therefore his rights were not violated. Because the attendance order did not violate Fields’ right to free exercise of religion, he was rightly subjected to punishment for his refusal to comply with the attendance order: “An invalid religious objection to an order that does not burden your free exercise of religion does not immunize you from punishment for violation of the order.”

Next, the Tenth Circuit evaluated Fields’ Establishment Clause argument. Fields claimed that the attendance order constituted an official endorsement of Islam by TPD. But the Tenth Circuit responded that Fields’ interpretation was unreasonable given the history, purpose, and context of the order. The Tenth Circuit then analyzed Fields’ free association violation claims, and rejected them because the attendance order did not require Fields to associate with the Islamic Society; he was not required to attend at all. The Tenth Circuit likewise rejected Fields’ claim of violation of the Equal Protection Clause, noting that Fields raised essentially the same arguments for his free exercise claim.

The judgment of the district court was affirmed on all counts.

The Intersection of Religious Freedoms and Workplace Anti-Discrimination Laws

Qusair Mohamedbhia Bio PicBy Qusair Mohamedbhai

It is not every day that lawyers from the ACLU and Focus on the Family share a public stage to debate religious freedoms and workplace anti-discrimination laws. In recent years, tensions between employee anti-discrimination rights in the workplace and religious freedoms of employers have dramatically increased in magnitude and complexity. In the last decade, courts have significantly expanded the rights of religious employers. Additionally, religion-based discrimination charges filed with Equal Employment Opportunity Commission have more than doubled in the past fifteen years. And employees’ rights in the areas of sexual orientation and healthcare have been affected by employers claiming to be governed by faith-based principles.

“The Intersection of Religious Freedoms and Workplace Anti-Discrimination Laws,” which was part of a larger CLE in Colorado, Inc. program titled “Workplace Discrimination,” produced a lively and informative discussion. The presenters debated the tension between anti-discrimination laws including the Colorado Anti- Discrimination Act’s inclusion of sexual orientation as a protected class, and laws protecting religious employers’ rights including the Free Exercise Clause and Religious Freedom Restoration Act. As expected, the ACLU and Focus on the Family had divergent opinions on matters related to the contraceptive mandate issued by the U.S. Department of Health and Human Services and religious employer exemptions. The panelists also debated the holdings, reach, and implications of recent high-profile decisions spanning a variety of related topics including the cases of Hosanna-Tabor, Windsor, Hobby Lobby, Abercrombie & Fitch, Little Sisters of the Poor, and Masterpiece Cakeshop Lakewood Bakery. The presenters and moderator demonstrated extraordinary knowledge of these difficult constitutional law matters, as well as theological arguments, historical context, and pragmatic public policy consequences.

Click here to view online

Panelists: Mark Silverstein, Esq., American Civil Liberties Union of Colorado, L. Martin Nussbaum, Esq., Lewis Roca Rothgerber LLP, and Bruce Hausknecht, Esq., Focus on the Family. Moderator: Scott L. Levin, Esq., Regional Director, Mountain States Region, Anti-Defamation League.

Qusair Mohamedbhai, Esq., is a partner at Rathod | Mohamedbhai llc. His practice is exclusively in the areas of plaintiff’s employment discrimination and constitutional civil rights litigation. He advocates for the rights of employees in the workplace, and for the civil rights of all individuals against governmental and institutional abuses of power. He is a National Institute for Trial Advocacy trial skills and techniques faculty member, co-chair of the Employment Law Section for the Colorado Trial Lawyers Association, and General Counsel to the Colorado Muslim Society. He received his Bachelor of Science in biology from the University of Alberta in 2000, and his Juris Doctorate from the University of Wyoming in 2003.

CLE Homestudy: Workplace Discrimination

This CLE presentation took place on January 10, 2014. Click here to order the Video OnDemand, click here for the MP3 audio download, and click here for the CD homestudy. You may also call (303) 860-0608 to order.

Tenth Circuit: If Debtor Transfers More Than 15% of GAI to Qualified Organization, Trustee May Recover Entire Amount, Not Just Amount in Excess of 15%

The Tenth Circuit Court of Appeals published its opinion in Wadsworth v. The Word of Life Christian Center on Monday, December 16, 2013.

Debtors Lisa and Scott McGough filed for bankruptcy relief under Chapter 7 in 2009. During 2008, the McGoughs made contributions to the Word of Life Christian Center (the Center), totaling $3,478. During 2009, they made contributions to the Center totaling $1,280. Their taxable income for 2008 and 2009 was $6,800 and $7,487, respectively. They also received social security benefits in 2008 and 2009 totaling $22,036 and $23,164, respectively.

The Trustee filed an adversary proceeding against the Center seeking to recover the contributions made to it by the McGoughs under 11 U.S.C. §§ 548(a)(1)(B) and 550. Both parties filed motions for summary judgment. According to the Center, because the individual amounts of each contribution made by the McGoughs did not exceed 15% of their gross annual income (“GAI”), none were avoidable under the safe harbor provision of § 548(a)(2). The Trustee took the opposite view: the contributions must be considered in the aggregate and because the total contributions made by the McGoughs exceeded 15% of their GAI in those years, he could recover them in their entirety.

The bankruptcy court agreed with the Trustee in part: for purposes of the safe harbor provision of § 548(a)(2), a debtor’s contributions must be considered in their annual aggregate. However, it sided with the Center on the avoidance issue—if the contributions exceeded 15% of a debtor’s GAI, only the amount exceeding 15% is subject to avoidance. Thus, the Trustee’s recovery was limited to the amount of the contributions exceeding 15% of the McGoughs’ GAI. The Trustee appealed to the Bankruptcy Court of Appeals (BAP). Therefore, the only issue before the BAP was whether § 548(a)(2) allows a trustee to recover the entire amount of a charitable contribution if it exceeds 15% of GIA or only the amount in excess of 15%. The BAP agreed with the bankruptcy court—only the amount exceeding 15% was avoidable.

The sole question on appeal was a narrow one: If a restricted debtor transfers more than 15% of his GAI to a qualified religious or charitable organization, may the trustee avoid the entire annual transfer or only the portion exceeding 15%? The bankruptcy court and Bankruptcy Court of Appeals (BAP) said circumstances here only permitted the trustee to avoid the portion of the transfer exceeding 15%. The issue presented was a matter of first impression in the Tenth Circuit.

The Tenth Circuit agreed with the Trustee’s argument: § 548(a)(2) is unambiguous and clearly provides a safe harbor from the trustee’s avoidance power only if the “transfer” does not exceed 15% of GAI. Thus the converse must also be true—if the “transfer” exceeds 15% of GAI, then the “transfer”—meaning the entire transfer—is subject to avoidance. Had Congress intended for only the portion of the transfer exceeding 15% of GAI to be subject to avoidance, it would have added limiting language to that effect.  It did not.


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

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.

SB 13-011: Authorizing Civil Unions in Colorado

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.