Everyone knew this political showdown was inevitable. Conservatives in the Colorado Legislature have been pissed off about the state's involvement in the Masterpiece Cakeshop case, which is pending in front of the U.S. Supreme Court and stems from Lakewood baker Jack Phillips's refusal to create a custom wedding cake for a same-sex couple back in 2012. This session, Republicans decided it was time to strike back.
Their campaign started in February, when Republicans on the powerful Joint Budget Committee voted to withhold funding from the Colorado Civil Rights Division and its commission as leverage in the agency's sunset review this session, when legislators would decide whether to reauthorize its existence. (Every state agency periodically goes through sunset reviews.)
But while the CCRD eventually got its money's worth through a bipartisan effort by both chambers to reverse the Joint Budget Committee, Republicans had more in store for the CCRD. During the sunset review process, they have been focusing their efforts on restructuring the seven-member civil rights commission, which is appointed by the governor and oversees the CCRD. The division investigates discrimination complaints in housing, public accommodation and the workplace, and the commission serves as a citizen appellate body that can either reaffirm the CCRD's decision or hold an administrative hearing to listen to a case on appeal.
House Democrats were able to push a "clean" reauthorization bill — meaning no changes were made to the CCRD or its commission in exchange for the agency's existence — late last month, in a 36-26 vote along party lines on HB 1256. House Republicans, who are outnumbered in the lower chamber, tried to push two amendments, which ultimately failed. The first amendment would have limited gubernatorial appointments to the commission and changed the seven-member civilian board to instead include four lawyers and a retired judge. The second amendment would have forced the CCRD and its commission to undergo a second sunset review in five years rather than the typical nine years.
At the time, House Republicans said they wanted to "modernize" the commission and ensure that a judicial standard was used when deciding cases on administrative appeal. But opponents were quick to point out that while the amendment looked neutral on its face, women are underrepresented in the ranks of attorneys, and the underrepresentation is even worse for racial and ethnic minorities.
"Arguing that the commission should only be reserved for the privileged few, quite frankly, is incredulous to me," said Representative Leslie Herod, a Denver Democrat and primary sponsor of HB 1256.
Although the Democrats dodged those changes in the House, the fate of the CCRD is now in the Republican-controlled Senate, and Republicans there are keen to pick up where House Republicans left off. Given previous rhetoric from some Senate Republicans around CCRD reform efforts, it's no surprise that reauthorizing the agency could turn out to be an uphill battle until the bitter end. (The 2018 legislative session adjourns on May 9.)
On April 19, the Senate Judiciary Committee approved amendments to the CCRD reauthorization bill that would change the composition of the commission, change the process for seeking a jury trial, require the CCRD to create detailed quarterly reports of case outcomes, and make the division subject to a legislative performance audit.
"With all sunset processes, it is incumbent upon the general assembly to perform a review. The [Colorado] Department of Regulatory Agencies certainly does that, but it is incumbent upon us to make a review, hear from citizens and those with an interest in the particular regulatory body and decide whether or not to continue it and decide in what form and whether there are changes and revisions that would improve and better serve the people of Colorado," says Republican Senator Bob Gardner, one of three primary sponsors of HB 1256 and the lawmaker who put forward the amendments that were approved in committee on April 19.
While Gardner did not include any requirements for more lawyers or retired judges on the commission — the purpose of the commission is to provide civilian oversight, he says — he does think the commission is "somewhat skewed in its viewpoint." That's because all of the appointments are made by a single political figure — the governor — and are primarily from the Denver metropolitan area. He also thinks the process isn't equitable for the accused and that there's a lack of transparency in the decisions the CCRD makes before cases even make it to the commission.
Some of Gardner's amendments are reasonable, Representative Herod says, but she has concerns about others.
For example, currently a person accused of discrimination can't opt out of the CCRD complaint process; only the person alleging discrimination can decide to lodge a complaint in court after a CCRD investigation is completed. One of Gardner's amendments would allow accused parties to also have the right to seek a jury trial after a CCRD investigation is concluded.
The purpose of the CCRD and the commission was to limit frivolous lawsuits from clogging up the court system and create an even playing field for individuals and small businesses that don't have the financial means to lodge a complaint of discrimination in court. Herod and other legislators are concerned that allowing the accused to opt out of the CCRD and go to court would give bad actors a way to escape accountability.
"My number-one concern is we don't create a process or a way for people to bypass the [Colorado] Civil Rights Division or commission and go straight to the courts," Herod says. "When you do that, you give a significant advantage to big business and those who are able and willing to afford to pay for counsel over an individual who can't. I think that's a dangerous precedent and process for us to set up."
Herod also has concerns with part of the appointment process Gardner has proposed. Currently, all seven members are appointed by the governor and include people from the business community, state or local government representatives, and members of protected classes, such as racial and ethnic minorities, the disabled or queer Coloradans.
Under the proposed amendments, the commission would comprise eight civilians, four of whom would be appointed by the governor, two by the ranking House leader of the governor's opposing party and two by the ranking Senate leader of the governor's opposing party. While Gardner did stipulate that no more than six partisans — three from each major party affiliation — could serve on the commission, that partisan divide and split loyalties bothers Herod.
"Are we overly politicizing a commission that shouldn't be overly politicized?" Herod asks. "I think when you set up a commission that requires opposition and political engagement, they tend to be more politicized." She'd like to seek a compromise with Senate Republicans on this issue.
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House Democrats will have the last say on the CCRD reauthorization bill after it goes through three readings on the Senate floor. Any amendments made by the Senate will go to a conference committee, which will hash out the difference between the two chambers. House Speaker Crisanta Duran, another primary sponsor of HB 1256, says that whatever may happen in the Senate, she will not accept any amendments "that will undermine" the CCRD and its commission or weaken protections for minorities.
"Our goal is to ensure that Coloradans have the right to work and live in Colorado without fear of discrimination and harassment in their jobs and their homes, and the continuation of a strong, independent and balanced CCRD is critical to achieving that goal," Duran says. "I have serious concerns about some of the amendments the Senate Republicans have added that would make it harder to achieve justice. The continued existence of this agency is too important to play politics with it. We hope we can find common ground and pass a clean bill reauthorizing the CCRD this year."
Aside from Masterpiece Cakeshop, a landmark civil-rights case, the CCRD has ruled on several major cases since its inception in 1951. Here are some of the most important cases the agency has fielded over the years, according to House leadership: