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Eleventh-hour compromise reached on reauthorizing Colorado civil rights panel

May 9, 2018 Updated: May 10, 2018 at 7:45 am
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Senate President Kevin Grantham R-District 2, speaks Wednesday, May 9, 2018, during the final day of the Colorado State Legislature at the Capitol in Denver. (The Gazette, Christian Murdock)

A bill reauthorizing Colorado’s Division of Civil Rights and the Colorado Civil Rights Commission — the subject of much contention during the 2018 Colorado legislative session — was on its way to the governor’s desk just before the final gavel fell Wednesday night.

As a midnight deadline approached, a legislative conference committee worked out differences between the House and Senate versions of House Bill 1256.

Earlier Wednesday night, the Republican-controlled Senate voted 26-9 to approve the compromise and 30-5 to pass the bill. The Democrat-led House voted 43-21 to re-pass the bill. Democrats broke out in applause with the announcement of the final vote.

Gov. John Hickenlooper told Colorado Politics late Wednesday he approves of the compromise, largely because it keeps politics out of the equation, referring to earlier language that sought to allow legislative leaders to make some of the appointments to the civil rights commission. Hickenlooper and House Democrats believed that would politicize the commission.

The commission had come under fire from some conservatives, especially after it weighed in on the case of a Lakewood baker who refused to make a wedding cake for a same-sex couple. The panel ruled against the baker; the case is now before the U.S. Supreme Court.

The compromise on House Bill 1256 went through a series of conference committee meetings, the last just after 8 p.m. Wednesday night, the 120th and final day of the 2018 legislative session.

The agreement was hammered out after a contentious meeting between the House and Senate sponsors that took place earlier in the day and that resulted in a standoff on the House floor, when Democrats threatened to stick to their version of the bill, which would have meant the bill’s demise.

Letting the bill die would mean Republicans would have no chance to effect change in the commission’s appointment structure. The agency’s funding is already set in the 2018-19 budget and would be allowed to continue for another year.

House Democrats had suggested they could try again in 2019, with hopes that Democrats could wrest control of the state Senate away from Republicans and hold onto the governor’s office. That would allow them to craft a bill that would expand the commission’s mission and the division’s operations.

Moments after that standoff, Speaker of the House Crisanta Duran of Denver announced one of the Senate Republicans on the conference committee, Sen. John Cooke of Greeley, had agreed to a compromise that would make changes in who would be appointed to the commission, as well as incorporating language from another bill pushed by Senate President Kevin Grantham of Cañon City on commission appointments.

Under the compromise, the seven-member commission would still be appointed by the governor.

Currently, two members are representatives of state and local government with a third coming from business. The compromise changed that to a member from state or local government, another member who is a majority owner of a business of five to 50 employees, another who is from a business of more than 50 employees, and another who represents a statewide chamber or similar organization. That could be from a Hispanic Chamber of Commerce, the Colorado Black Chamber of Commerce, the Colorado chapter of the National Federation of Independent Business or the Colorado Association of Commerce and Industry.

The commission already has a requirement that four of its seven members must be people representing protected classes under the state’s civil rights laws (LGBT, the disabled or minorities, for example). Democratic Rep. Leslie Herod of Denver, one of the bill’s co-sponsors, said she believed that could still happen under the compromise.

The compromise grew out of one suggested during the first conference committee meeting earlier in the day that reviewed two proposals, one offered by Democratic Sen. Daniel Kagan of Cherry Hills Village and another from Republican Sen. Bob Gardner of Colorado Springs.

Kagan’s proposal would set the commission’s seven members at no more than three from each major political party, with the seventh member either unaffiliated or from a minor party. That became part of the final compromise.

“It’s a vast improvement for those who want more balance and a sensible middle ground,” Kagan said.

Duran, the House speaker, said she also would be willing to consider performance audits included in the Senate version, calling it a reasonable idea. That also made it into the compromise.

The language incorporated into the bill’s final version from Senate Bill 43 states that when the Senate rejects a nominee, that person is deemed ineligible to hold the office for two years.

That bill was the result of Senate Republicans’ concerns tied to a commission appointment in the 2017 session, when the Senate, on a party-line vote, rejected an LGBTQ woman appointed to the commission by the governor. Even though Heidi Hess’s appointment was rejected by the Senate, she remained on the commission until January, although her appointment formally ended last year.

Gardner also sought an unprecedented (at least in Colorado law) 60 percent approval vote for commission appointees, claiming it would allow the minority party to be consulted on those appointments. That did not make it into the final version.

Gardner also raised red flags among Democrats when he suggested that complainants have more rights with the commission than do respondents, although he did not identify any examples where that’s happened.

However, Duran pointed to a press release during the last 24 hours from the Colorado Christian University-based Centennial Institute that complained that the “radical, agenda-driven leftists have used the Colorado Civil Rights Commission to penalize people of faith, including Christian business owners, instead of protecting the rights of all.”

That’s a reference to the Masterpiece Cakeshop case currently awaiting a decision from the U.S. Supreme Court.

“The real reason to make these changes [as proposed by the Senate Republicans]…is to undermine LGBT rights,” Duran said. “That’s unacceptable.

The commission is working, Herod said. She explained that her caucus would have sought to strengthen the commission in the legislation but instead chose to offer a “clean” version that simply reauthorized it for another nine years.

Herod called Gardner’s proposals “on the verge of unconstitutional and unprecedented” and said those ideas could render the commission ineffective and more partisan.

Gardner retorted that his proposal “transcends partisanship” and repeatedly pointed out that the Senate had passed its version of the bill on a 35-0 vote, including the chamber’s 16 Democrats. He also took offense at the suggestion that the Senate Republicans proposal would undermine the state’s efforts to protect Coloradan’s civil rights.

Daniel Ramos, executive director of One Colorado, the state’s leading LGBTQ advocacy organization, said in a statement that “at the end of the day, we wanted to ensure that Colorado had a civil rights division and commission that can effectively protect the civil rights of all Coloradans. I am pleased that today, on the last day of the session, Democratic and Republican members of the House and Senate were able to come together on a compromise that ensures the future of such a critical agency in our state.”

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