Civil rightsLegislatureNews

Civil rights bill is heavily amended in Colo. Senate committee

Author: Marianne Goodland - April 19, 2018 - Updated: April 30, 2018

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Mary Torres of Falls Church, Va., left, with her daughter Maria Torres, and Eugene Delgaudio, holds up a rolling pin in support of cake artist Jack Phillips, while outside of the Supreme Court, Tuesday, Dec. 5, 2017, during the ‘Masterpiece Cakeshop v. Colorado Civil Rights Commission’ case in Washington. (AP Photo/Jacquelyn Martin)

A bill reauthorizing the Colorado Civil Rights Commission and Division of Civil Rights went through a four-hour hearing in the Colorado legislature Wednesday that drew dozens of witnesses, most opposing a slew of amendments planned by the bill’s sponsor, Republican state Sen. Bob Gardner of Colorado Springs.

“If it ain’t broke, don’t fix it,” said several.

House Bill 1256 passed the Senate Judiciary Committee on a unanimous vote, while five amendments passed along a strictly party-line 3-2 votes in the Republican-controlled committee.

The amendments would change the seven-member civil rights body to eight members, allow parties in a complaint to take the complaint to a district court rather than allowing the commission to resolve it, and require more transparency over commission complaints.

“There’s universal agreement” that the commission and division should be reauthorized, Gardner told the committee. The disagreements revolve around the commission’s makeup and process, and well as transparency, he said.

House Bill 1256, when it left the Democratic-led House last month, was a “clean” reauthorization bill that won support from all the Democrats and two out that chamber’s 28 Republicans. The House version only reauthorized the commission and division for another nine years without any of the other recommendations of a sunset review conducted last year by the Department of Regulatory Agencies.

The agency, and in particular the commission, has been a lightning rod at the Capitol ever since the legislature’s Joint Budget Committee in January deadlocked on a party-line 3-3 vote over continuation funding for the agency in 2018-19. That issue was resolved during the budget process earlier this month when both the House and Senate backed amendments to provide the $2.1 million in funding the agency will need in the coming year.

The commission has been under the gun from Republicans ever since it supported a discrimination claim in 2012 filed by a same-sex couple against a Lakewood bakery, Masterpiece Cakeshop. Bakery owner Jack Phillips, citing his Christian beliefs, refused to bake a wedding cake for the couple.

The division found probable cause for a discrimination claim, based on the state’s public accommodations provision within the anti-discrimination law. That requires a retail business that serves anyone to serve everyone, regardless of race, ethnicity, gender and sexual orientation, among a host of protected classes. The commission backed the finding.

Phillips appealed all the way to the U.S. Supreme Court, which has heard arguments and is expected to rule on the case later this spring.

In the wake of the Supreme Court case, conservative Republicans at the Capitol have supported measures this session such as House Bill 1206, which would allow discrimination against same-sex couples based on “sincerely-held” religious beliefs. That bill died three weeks ago in a House committee.

Gardner said nothing in his amendments would change the protections of the state’s anti-discrimination laws. He pointed out that the sunset review process, which started the path to the 2018 bill, is an opportunity to look at the regulatory processes and whether “other conditions warrant new regulation.”

Gardner’s four amendments did not address issues or problems raised by the sunset review, other than a hike in fines for violations.

Initially, one amendment would have raised the fines for a first violation to $5,000, $10,000 for a second violation and $25,000 for third and subsequent violations. Sen. John Cooke, Republican of Greeley, offered an amendment of his own, to reduce the fines to $500, $5,000 and $10,000. That amendment was accepted on a party-line vote by the committee.

“I haven’t seen anything that would justify these amendments,” said Rev. Amanda Henderson of the Interfaith Alliance. She claimed the change in appointment structure, which would allow the governor to appoint half of the eight commissioners and legislative leaders the other half, would politicize the commission.

Other witnesses argued that an eight-member body could lead to gridlock. Virtually all state-appointed boards and commissions, as well as the General Assembly itself, are made up of an odd number of members to avoid that problem.

Barry Roseman of the Plaintiff Employment Lawyers Association said he believed an amendment that allows the complainant or respondent to go to court and bypass the commission might be unconstitutional. The amendment allows either party to a complaint to have the matter moved to the district court, with the commission bearing the legal costs for the complainant.

However, Roseman pointed out that the Attorney General’s office currently represents the commission and questioned whether that office would represent complainants.

Gardner later told reporters that it isn’t clear who should represent complainants in the district court, and didn’t respond when asked if he had checked with the Attorney General’s office first. He said the Attorney General’s office would do it if the commission were required to by law.

But Sen. Rhonda Fields of Aurora noted that respondents will more than likely choose to go to court rather than go through the commission, noting that business owners have the means and resources to hire attorneys, while complainants often don’t. She also said that the Attorney General’s office should be consulted before the legislature passes a bill requiring that office to represent complainants in a district court case.

Fields also said that the amendment on appointments aligns with a bill passed by the Senate last week on gubernatorial appointments, Senate Bill 43. That bill, which passed on an 18-16 party-line vote, shows a lack of confidence and trust in the governor and an attempt to pull back his authority, Fields said.

Gardner claimed he brought the amendments at the request of business owners and business groups like the Colorado chapter of the National Federation of Independent Business and the Colorado Association of Commerce and Industry, the latter a statewide chamber of commerce. However, not one business owner who supported the amendments or representatives of those two groups testified at Wednesday’s hearing.

Gardner said those stakeholders claim the commission, as it is currently composed, is not wholly representative of the state and that they lack confidence in the commission.

“There’s a lot of reluctance for business owners to come in and further expose themselves to complaints or boycotts,” he told reporters. The commission is stacked in favor of complainants, leaving business owners with no choice but to settle through the commission.

Business owners who testified in favor of the bill included Jim Smith, owner of Golden Real Estate and representing Good Business Colorado, a progressive coalition of business owners. He said the division “saves Colorado small businesses from paying to retain a lawyer for advice on discrimination laws. That’s money that’s being kept in the pockets of businesses, which could go towards employee pay, benefits, and savings to their clients and customers.”

Gardner advocates for the bill, once passed by the Senate, to go to a conference committee that will work out the differences between the House and Senate versions.

After the hearing, Joe Megeysey, a former communications director for the Senate GOP, commented that he was pleased the committee approved the bill, but “as a conservative, I have deep concerns about amendments added that would make it harder for Coloradans to file discrimination claims with the Division, and weaken protections for people who have been discriminated against. These amendments are solutions in search of problems,” Megeysey, who is board chair for One Colorado, said.

Marianne Goodland

Marianne Goodland

Marianne Goodland is the chief legislative reporter for Colorado Politics. She's covered the Colorado General Assembly for 20 years, starting off in 1998 with the Silver & Gold Record, the editorially-independent newspaper at CU that was shuttered in 2009. She also writes for six rural newspapers in northeastern Colorado. Marianne specializes in rural issues, agriculture, water and, during election season, campaign finance. In her free time (ha!) she lives in Lakewood with her husband, Jeff; a cantankerous Shih-Tzu named Sophie; and Gunther the cat. She is also an award-winning professional harpist.