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Appointments bill sparks heated debate in Colorado Senate

Author: Marianne Goodland - April 10, 2018 - Updated: April 23, 2018

Colorado Senate President Kevin Grantham, R-Canon City, speaks to the Senate during the opening session of the 2017 Colorado Legislature at the Capitol in Denver. (Photo by Brennan Linsley/The Associated Press)

Update: the Senate passed Senate Bill 43 on a party-line vote Tuesday, 18-16, with one senator excused and Sen. Cheri Jahn, an unaffiliated senator from Wheat Ridge, voting with the Democrats.

While the bill reauthorizing the Colorado Division of Civil Rights and Colorado Civil Rights Commission still awaits state Senate review, Senate Democrats and Republicans are already battling over a related issue, on what happens when the Senate doesn’t agree with an appointment.

The Senate squabbled for two days over a bill that danced around its reason for being. That’s Senate Bill 43, sponsored by Senate President Kevin Grantham of Cañon City.

The bill would make it clear that once the Senate rejects a gubernatorial appointee, that person cannot be reappointed to the position.

The bill’s driver comes out of what happened last year with an appointee to the Colorado Civil Rights Commission. Heidi Jeanne Hess of Clifton, on the Western Slope, had served on the commission as an at-large member since first being named to the body in 2013. Her appointment was due to expire on March 13, 2017, and Gov. John Hickenlooper reappointed her for a second term.

But Senate Republicans rejected her nomination in the Senate State, Veterans and Military Affairs Committee and on a party-line 18-17 vote in the full Senate.

The reason given was that Hess was incorrectly listed on the commission’s website as a representative of small business. That drew objections from small business representatives that she was anti-business. And that gave Republicans all the ammunition they needed to reject her reappointment. She remained on the commission until Jan. 9 of this year, when she resigned.

Hess is a lesbian and a field organizer for One Colorado. She was on the civil rights commission when it ruled in favor of a same-sex couple and against a Lakewood baker, Jack Phillips of Masterpiece Cakeshop. Phillips refused to bake a wedding cake for a same-sex couple, citing his religious beliefs. The couple went to the Division of Civil Rights, which found probable cause for discrimination.

The commission upheld that finding, as did the Colorado Court of Appeals. Phillips appealed to the U.S. Supreme Court, which heard oral arguments last December. A ruling is expected within the next two months.

Republican lawmakers have been gunning for the civil rights commission since before the session started, based on the opportunity to make changes when the Division of Civil Rights came up for a “sunset review” that would reauthorize the division and the commission for as much as nine years.

Republican Sen. Kevin Lundberg of Berthoud, a member of the Joint Budget Committee, told a “Religious Freedom Rally” at Colorado Christian University last November he and his colleagues will work to change the commission’s mission in the 2018 session so that it would defend people like Phillips. Lundberg was one of three Republicans on the JBC that voted against continuing the funding for the division into 2018-19, stating they wanted to see what would happen with the sunset review.

Not once in the two days of debate over Senate Bill 43 was the civil rights commission or Hess brought up.

Democratic Sen. Rachel Zenzinger said she believes Republicans are trying to pretend the bill isn’t about the civil rights commission. For Democrats, the bill definitely is about the commission, according to Assistant Minority Leader Lucia Guzman of Denver.

Guzman told Colorado Politics that constitutionally, the Republicans are correct, that the Senate should have final say about appointments. But she claimed that what’s happened in the past couple of years are appointments that have carried a “shadow of discrimination. It’s hard to prove,” she said, “but we know that’s part of it.”

Grantham said during the debate Friday that Senate rejection equals ineligibility, period. If the governor nominates someone and the Senate rejects that person, the nominee is deemed “legally unfit and ineligible to hold that office.” The bill makes it clear that the governor cannot renominate the person for the same office, even as a temporary appointment when the General Assembly is not in session.

The only exception, according to Grantham and which was contained in an amendment, is that the decision does not carry over into the next session of the succeeding General Assembly, because those decisions cannot bind a future legislature.

Grantham admitted that the governor’s office was not consulted on the bill or even on the amendment. The measure is unlikely to clear the House, where Democrats have been adamant about reauthorizing the commission without any changes to its mission. House Republicans sought changes to the commission’s appointment structure without success.

Hickenlooper nominated Hess’s replacement, Charles Fredrick Garcia of Denver, a Democrat and at-large member, on March 16. His confirmation hearing is scheduled for April 18 in the Senate State Affairs Committee. At that same day and hour, the sunset review bill for the division and commission is scheduled for the Senate Judiciary Committee.

On the same day, March 16, Hickenlooper nominated Hess to the Colorado Juvenile Parole Board. Her nomination was confirmed by the Senate on April 2.

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.