A coalition of thirty civil-rights groups coalesced on the west steps of the Capitol yesterday, February 14, to protest what they — and Democrats — have called a Republican-led effort to defund the Colorado Civil Rights Division and its commission.
Inside the Capitol, Senate Republicans staged their own response to the rally, saying in a statement that they "pose no mortal threat to that organization's continued existence."
Republicans on the Joint Budget Committee weren't initially available for comment to discuss why they decided to vote along party lines last week in a 3-3 decision to withhold funds from the CCRD. But Senator Kevin Lundberg, a Berthoud Republican campaigning for state treasurer and a member of the Joint Budget Committee, explained to Westword the decision and why Democrats have it all wrong.
"If there's a takeaway, it is to make the Civil Rights Division more functional for all of Colorado. I want to make it better, and I have no intention of pulling funding for it. I have every intention of seeing it function better. It shouldn't be a commission that's just focused on a couple of special interests. It should be focused on all of the interests of people in Colorado, and I'm troubled that it's not been well focused in that arena," Lundberg says.
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The Joint Budget Committee, which approves the budget of each state agency, has until March 26 to wrap up its review so that an appropriations bill can begin to wind its way through either chamber. Lundberg insists that he and his colleagues intend to revisit funding in committee. (Lundberg previously said in a Facebook post that he wanted to wait until after the sunset review process before approving any funding for CCRD. More than a dozen other state agencies, programs and laws are undergoing sunset review, including the Colorado Auto Theft Prevention Authority and Board.)
However, he did speculate that even if the committee doesn't approve an appropriation for a state agency, funding could be included during the budget amendment process in either chamber.
"The budget itself can be adjusted by future action of the legislature," Lundberg says.
So why the vote of no confidence from Republicans, particularly those in the Senate?
It's no coincidence that the discussion comes in the midst of ongoing U.S. Supreme Court litigation between the Colorado Civil Rights Commission and Lakewood baker Jack Phillips of Masterpiece Cakeshop, who refused to make a wedding cake for a same-sex couple in 2012. The Civil Rights Commission, which oversees the division's investigations into discrimination complaints and conducts hearings, took up the initial complaint and has carried the case through the appeals process.
Lundberg says that the Masterpiece Cakeshop case prompted further probing into the commission, which now leads the Republicans to believe that serious reforms are needed. This year is bound to be that year; the CCRD and commission started their sunset review on February 13 in the House Judiciary Committee. The Republican-controlled Senate will decide if the agency will continue to exist or have adequate funding.
Lundberg says it comes down to a handful of key issues: the power of appointments, due process for the accused, increased rulemaking transparency, and the power to levy fines.
Currently, only the governor has the power to appoint members to the seven-member commission to hear complaints of discrimination in housing, employment and public accommodations. Governor John Hickenlooper had a run-in with the Senate last year when the chamber voted along party lines against the reappointment of Heidi Hess, a Western Slope field organizer for the LGBTQ advocacy group One Colorado, in May. Instead of finding another appointment to take Hess's place, Hickenlooper retaliated against the Senate by refusing to name a commissioner.
Here is where we enter the legal gray area: Hess continued in her post because she had no replacement. Senate Republicans, however, were angry at what they believe was a governor who had stripped the chamber's constitutional right to confirm appointments. (At the time, Hickenlooper said that if a gubernatorial appointment is rejected, the constitution allows the seated commissioner to continue to serve. Hess resigned after the controversy.)
Now, Senate Republicans are using a two-pronged approach to restructuring appointments. SB 43 would close the appointment loophole by making it clear that a Senate rejection would deem a gubernatorial pick as unfit to hold that office, even temporarily. The second is to redistribute CCRD commissioner appointment powers. Republicans don't anticipate crossing this bridge until the CCRD sunset review is in the Senate, and Lundberg says that the process might be similar to Colorado Reapportionment Commission appointments, which are made by the governor, chief justice, and House and Senate leadership.
"The commission has a great deal of independent authority over the citizens of Colorado," Lundberg says. "Maybe there should be a shared responsibility of picking the members [of the commission]."
As for due process, Lundberg says the rights of the accused are not being fully considered under the current system because there is no appeals process for the commission's decision outside of going to court. He says a judicial review or a jury should be available for an administrative appeal.
"This is a one-stop shop here where the commission rules, and the only way you can overturn that is step outside that and take it to the courts," Lundberg says.
Thirdly, Lundberg (and his colleagues) say CCRD lacks transparency for two reasons. The first is because the commission only keeps meeting minutes rather than full meeting transcriptions. The second way that Republicans say CCRD lacks transparency is through confidentiality policies that protect details of dismissed cases, meaning those dropped by CCRD investigators before they are heard by the commission. (Of course, complainants have the right to appeal a dismissal directly to the commission to seek justice.) What Republicans want to know is what process is being followed behind "the veil of secrecy" when deciding what is or isn't dismissed.
"Now, I know when you're talking about some of these issues, there should be some component that should be held in a private fashion, but there are blanket policies that hold back a great deal on the process," Lundberg says, adding that most court records, which would include sensitive cases like discrimination and libel, are publicly accessible, and that records on dismissed cases should be public, at least in part, too.
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The last key point of contention is in regard to levying fines. Currently, the commission doesn't have that power, but Lundberg said the CCRD asked to be able to levy anywhere between $5,000-$25,000 per fine in its budget request to the Joint Budget Committee.
"That troubles me. That would be in place for a commission that hasn't been fully functional up to this point," Lundberg says.
For now, the CCRD and its commission are scheduled for a second House Judiciary Committee hearing for its sunset review on February 20.