For those outside the politico and policy-wonk world, this is a regular process designed to evaluate whether to continue to fund a particular state agency, or whether it should expire and cease to exist. According to Colorado.gov, “The Colorado General Assembly sets specific dates that a particular agency, board, or function of government will terminate unless the legislature passes new legislation to continue. So, the ‘sun sets’ on that part of government if it is not reauthorized.”
The CCRD and CCRC are scheduled to repeal on July 1, 2019, following a wind-down period, unless reauthorized. House Bill 18-1256 would renew both state programs through Sept. 1, 2027.
HB 18-1256 was heard in the Senate Judiciary Committee, and was passed by a bipartisan 5-0 vote. Notably, reauthorizing the commission was not the source of debate and political heat among the committee members and the few dozen people who testified, but rather four amendments that were brought by the bill sponsor, Sen. Bob Gardner (R-12). (Full disclosure- I testified in favor of reauthorizing the CCRD and CCRC and in favor of the Gardner amendments.)
The purpose of the amendments collectively is to provide more legitimacy to the Commission’s composition, to provide procedural due process to both parties equally, to afford more transparency to the Commission if it is reauthorized and to establish a legislative audit.
One key amendment seeks to create a bipartisan appointment system of the commissioners to ensure that neither party creates an appearance of political favoritism in the composition of the Commission. Particularly because the Commission was the target of some pointed questions from the U.S. Supreme Court, everyone should agree that the legislature should ensure the Commission retains legitimacy in the eyes of the public and the High Court, especially in the context of a sunset review.
During the committee testimony, it appeared that Sen. Rhonda Fields’ (D-29) questions suggested that if the appointment process was modified to create fair and complimentary bipartisan participation, the Republican Party would not have four members across all of Colorado that would fit the status requirement as members of a “protected class,” which is currently the required minimum for the commission. Really? There are not four willing and able prospective commissioners in all of Colorado that are in an eligible protected class that also choose to identify as Republican?
Sen. Fields’ line of questioning implicitly conceded that she views the Commission as politically driven, rather than existing to ensure that Colorado law in the context of public accommodation is applied fairly and accurately. Other testimony along these same lines of objections simply underscore why the modification to the Commission’s composition is a critical legitimacy enhancement to restore public trust in the process, and ensure that due process is afforded without bias to either a petitioner or a respondent.
The amendment proposed attempts to both ensure that viewpoint discrimination in the composition of the commission is minimized and that both parties share in the responsibility of selecting qualified candidates to serve. Why can’t liberal-minded legislators get behind that?
The other key amendment ensures equal access to procedural due process for-you guessed it-both a petitioner or a respondent. The CCRC currently functions as an alternative dispute resolution (ADR) forum. If both parties consent to the jurisdiction of the commission, they will avail themselves of the remedies provided by the Commission. In other words, both parties can choose to have their dispute heard by the Commission.
But like any other traditional civil complaint process, either party should have the option to opt out of ADR. Currently, there is a lack of equal protection for respondents. A petitioner may directly file in court or may choose the CCRC. Respondents currently have no option to preserve due process on the trial level and request a judge or jury.
This is especially problematic when the CCRC is making findings of facts and conclusions of law, because the CCRC is not required to have any lawyers or attorneys within its commissioners, so compelled ADR forecloses meaningful access to a traditional judicial forum.
Again, why would liberal-minded people be against equal footing and equal rules for everyone? The true reason became very clear in testimony, when comments were made that certain groups are “depending on the Commission.” That the Commission “has their backs.” But the CCRC should not be biased toward or biased against any group or person.
Moreover, the Anti-Discrimination Act still stands exactly as codified regardless of the outcome of the sunset review. Ensuring procedural due process and meaningful access to justice in the context of a legislative review of the Commission’s efficacy and legitimacy has no bearing whatsoever on the standing law and available remedy under the Anti-Discrimination Act. The Act is what preserves civil rights in the context of public accommodation.
So again, I have to ask, why would liberal-minded people be against equality? This line of attack is actually admitting that liberals perceive the Commission as biased in applying the Anti-Discrimination Act. There is no logical or non-political reason not to support the proposed amendments.
Objections to the amendments were framed as encouraging “frivolous or costly” litigation, but I reminded the committee that small businesses or other respondents may still opt in to the Commission. Further, procedurally, the opt out mechanism would only occur after the CCRD’s finding of probable cause, which by legal definition eliminates frivolous claims. There is also no requirement for either party to be represented by counsel, call expert witnesses, or any such “costly” measures that opponents tried to suggest.
The question was posed, why are changes necessary to the Commission? Because this is exactly what a review process is for. The amendments and reauthorization bill ensure the ongoing and increasing legitimacy of the Commission in its composition and appointments, provide procedural due process to everyone equally,affords more transparency to every Coloradan and authorize a legislative audit to oversee the commission until the next review.
These are things we should all support. The final votes on the commission composition, opt out, and transparency amendments were 3-2 on party line (three Republicans voting yes; two Democrats voting no), and a 5-0 unanimous vote on the bill as amended to reauthorize the CCRD and CCRC.
I really hope liberals are true to their message of really wanting equality for everyone, not just better positioning for themselves. We’ll see.
Jenna Ellis is a constitutional law attorney, legal counsel for Colorado Family Action, fellow at the Centennial Institute, and a contributor to Washington Examiner. She hosts a radio show on KLZ 560 Denver. Follow her @jennaellisorg.