Every legislator has seen it happen. A bill is up for debate on second reading. A legislator who opposes the bill goes to the mike and explains why the bill is unconstitutional. The sponsor comes to the mike with a smirk (knowing the uncounted votes are in favor of his or her measure) and says "If it has 18 votes in the Senate and 33 votes in the House, it's constitutional."
Well, it may be "valid", but it is not "constitutional", and the Colorado Supreme Court does have the power to declare the measure "unconstitutional" even if it passes the legislature 100 to 0. If the legislator who warned about the dangers of passing the bill doesn't have a lot of legislative years left, chances are he or she won't be on the House or Senate floor to say "I told you so" when the court finally does rule.
In 22 years in the House, I did have the opportunity a few times to go to the mike after a Supreme Court decision and remind my fellow legislators what I had said about an "unconstitutional" measure as it passed the House. But that won't happen for SB 175, which passed the legislature in 1992, setting up a different election schedule for school board members in the City and County of Denver.
SB 175 was sponsored by Sen. Dottie Wham, R-Denver and Rep. Pat Grant, R-Denver and amended Article 31 of Title 22 concerning the election of school district directors. It provided for subdistrict representation for the City and County of Denver, which means the director to be elected had to live within the subdistrict. THAT is perfectly constitutional. But SB 175 also provided in CRS 22-31-131 (1.5) (b) (I):
There are seven school board directors in Denver. Two are elected at-large by all the voters in the district. Five are elected from subdistricts and only by the electors residing within that subdistrict. This is contrary to CRS 22-31-105 (6):
Why do you think that language is in the statutes? Because in 1963 the Colorado Supreme Court decided Berni vs. Cook, 386 P.2d 588, regarding a Boulder Valley School District election. There were seven subdistricts, designated A through G. The court stated:
The court held that electors in the entire school district and not just in District A must vote on the District A candidates. The court based its opinion on Article 9, Section 15 of the state constitution which provides:
This court decision was not unanimous. A dissenting justice claimed even nominations only from within a director district would violate the constitutional language.
Sponsors of SB 175 were warned in advance of the problem with their bill. In a formal opinion by the Legislative Legal Services office on Jan. 16, 1992, two weeks before the bill was introduced:
Their conclusion at the end of the legal opinion was that the legislature cannot require or permit the Denver school district to have a sub-district director plan of representation in which voting for a director is limited to those electors residing in the director sub-district. Their conclusion was echoed by the Denver Board of Education in a letter to members of the Colorado House on Feb. 25, 1992.
Under Article 31 of Title 22, Denver is the only school district in which the state legislature has set out the subdistrict boundaries, by way of SB 175. That is entirely inconsistent with CRS 22-31-108 which provides such school sub-district boundaries will be voted on by the electors of the school district.
Sponsors of SB 175 might have justified having the legislature draw the Denver subdistrict boundaries as necessary to have everything in place before the May, 1993 Denver board of education election. But as presently written, the Denver School Board can NEVER change the subdistrict boundaries. Only the state legislature can. Under CRS 22-31-131 (1.5) (c) (II):
This is very shaky, legally, and needs to be repealed, since it denies equality to Denver voters compared to the rest of the state, as noted by the Denver Board of Education letter:
Denver city council districts have been reapportioned without interference from the state, and Denver does elect persons of Hispanic and African-American heritage to positions of power.
This November, one at-large school district director seat will be on the ballot. Everyone can vote for one of four persons seeking the seat. The four candidates include the appointed incumbent Lee White. Other contested seats up for election are in Districts 2, 3 and 4. That means voters in subdistricts 1 and 5 can only vote for one school district director. Voters in Districts 2,3, and 4 can vote for two. But NO ONE in Denver can vote for four.
SB 175, when it passed, made reference to Section 7 of Article 20 of the State Constitution, which makes Denver one school district "elected in such manner as the general school laws of the state shall provide". As if this language gave the legislature the right to overlook Section 15 of Article 9 of the same constitution!
There is nothing in Section 15 inconsistent with or in conflict with the language of Section 7, Article 20, and so both have to be read together.
Any Denver elector who is not permitted to vote for all four school board contested elections has "standing" to bring a court action to halt this legislative intrusion into Denver school board elections.
But a Denver elector who pays property taxes and who has children in a Denver school subdistrict different from his or her subdistrict of residence would have the clearest "standing" to sue.
Any successful lawsuit would not interfere with directors elected prior to the court's decision, but it would restore the rights of Denver citizens to vote for all FUTURE school district directors.
Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.
Copyright 2015 Jerry Kopel & David Kopel