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Stories about Colorado

Colorado Supreme Court rules that state board must defer to disciplinary actions taken by other state agencies

Photo of Colorado State Supreme Court building

On Dec. 21, the Colorado Supreme Court ruled in DOC v. Stiles that the Colorado State Personnel Board (Board) must defer to disciplinary decisions made by state agencies. The court’s decision aimed to shed light on the standard the Board must apply when reviewing other state agencies’ disciplinary decisions. 

The court held that when the Board considers appeals of decisions to discipline agency employees, they must apply the “arbitrary, capricious, or contrary to rule or law” standard instead of reviewing the facts of the case on a de novo basis. 

The arbitrary or capricious standard instructs the Board to give deference to the disciplinary action taken by the state agency. It prevents the Board from overturning such actions unless the agency failed to give honest consideration to the evidence involved in the case or violated a law or rule. De novo review would allow the Board to evaluate the evidence in the case and make its own decision without regard for the earlier conclusions made by the state agency that decided to discipline an employee.

The court remanded the case back to the state administrative law judge (ALJ), working for the Board, who had overruled the state agency disciplinary action at issue in the case. 

In the opening paragraph of the opinion announcing the decision, Justice Carlos Samour wrote about the stakes of the case in the following way: “At a micro level, it will affect whether Mathew Mark Stiles keeps his job at the Department of Corrections (“DOC”). At a macro level, it will affect the 30,000-plus other certified state employees in Colorado’s personnel system.”

The standard articulated by the Colorado Supreme Court is similar to the arbitrary-or-capricious test established by the federal Administrative Procedure Act. Under that test, courts reviewing agency actions invalidate any that they find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

To learn more about state administrative law judges or judicial deference, see here:

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Text of the decision:



Filing deadline passes for successor candidates in Colorado school board recall

A recall election seeking to remove Lance McDaniel from his position as the District A representative on the Montezuma-Cortez School District Board of Education in Colorado is being held on February 16, 2021. The filing deadline for candidates wishing to replace McDaniel if the recall is successful was January 8. One candidate—Cody Wells—filed.

The recall election will have two questions. One will ask if voters are in favor of recalling McDaniel, with the option to vote yes or no. The other question will list the successor candidates. If a majority of voters cast ballots in favor of recalling McDaniel, the successor candidate who received the most votes will replace him on the board. If a majority of voters cast ballots against recalling McDaniel, he will retain his position on the board.

The recall effort started in July 2020. Recall supporters said McDaniel had shown a “lack of leadership and has proven to be a poor role model for our children” due to several of his social media posts. The petition stated, “We need school board members that understand leadership and the power of mentoring, and know not to voice their personal, political, or social opinions that could influence children.”

McDaniel said he was not concerned about the recall effort. “When it gets down to it, I’m a loudmouth liberal, and they don’t like that,” he said. McDaniel said he stood by his social media posts. “The conservatives don’t like the fact that there are some more progressive people in the town,” he said.

To get the recall on the ballot, supporters of the effort had to submit 1,126 signatures in 60 days. The number of signatures was equal to 40% of the citizens in the school district who voted in the last school board election. Recall supporters submitted the signatures by the deadline, and Montezuma County Clerk and Recorder Kim Percell determined enough signatures were valid. Before a recall election could be scheduled, four challenges were submitted against the petition, saying the petition was “baseless, frivolous and infringes on Mr. McDaniel’s First Amendment rights of freedom of speech.” A hearing on the challenges was held on November 19, and the challenges were denied on November 23. Hearing Officer Mike Green said that the recall petition met the statutory requirements.

McDaniel is one of seven members on the board of education. He was appointed to his position in 2018.

In 2020, Ballotpedia covered a total of 226 recall efforts against 272 elected officials. Of the 49 officials whose recalls made it to the ballot, 29 were recalled for a rate of 59%. That was higher than the 52% rate for 2019 recalls but lower than the 63% rate for 2018 recalls.

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Colorado school board recall scheduled for February 2021

A recall election seeking to remove Lance McDaniel from his position as the District A representative on the Montezuma-Cortez School District Board of Education in Colorado is being held on February 16, 2021.

The recall effort started in July 2020. Recall supporters said McDaniel had shown a “lack of leadership and has proven to be a poor role model for our children,” regarding several of his social media posts. The petition stated, “We need school board members that understand leadership and the power of mentoring, and know not to voice their personal, political, or social opinions that could influence children.”

McDaniel said he was not concerned about the recall effort. “When it gets down to it, I’m a loudmouth liberal, and they don’t like that,” he said. McDaniel said he stood by his social media posts. “The conservatives don’t like the fact that there are some more progressive people in the town,” he said.

To get the recall on the ballot, supporters of the effort had to submit 1,126 signatures in 60 days. The number of signatures was equal to 40% of the citizens in the school district who voted in the last school board election. Recall supporters submitted the signatures by the deadline, and Montezuma County Clerk and Recorder Kim Percell determined enough signatures were valid.

Before a recall election could be scheduled, four challenges were submitted against the petition alleging that it was “baseless, frivolous and infringes on Mr. McDaniel’s First Amendment rights of freedom of speech.” A hearing on the challenges was held on November 19, and the challenges were denied on November 23. Hearing Officer Mike Green said that the recall petition met the statutory requirements.

McDaniel is one of seven members on the board of education. He was appointed to his position in 2018.

In 2019, Ballotpedia covered a total of 151 recall efforts against 230 elected officials. Of the 66 officials whose recalls made it to the ballot, 34 were recalled for a rate of 52%. That was lower than the 63% rate and 57% rate for 2018 and 2017 recalls, respectively.

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Colorado governor appoints Maria Berkenkotter to state supreme court

Photo of Colorado State Supreme Court building

Colorado Gov. Jared Polis (D) appointed Maria Berkenkotter to the Colorado Supreme Court on November 20, 2020. Berkenkotter will succeed Chief Justice Nathan Coats, who is retiring in January 2021 when he reaches the mandatory retirement age of 72. Berkenkotter is Polis’s first nominee to the seven-member supreme court.

Under Colorado law, state supreme court justices are selected through the assisted appointment method. The governor chooses an appointee from a list of candidates submitted by the judicial nominating commission. Initial terms on the supreme court last at least two years, after which justices stand in retention elections. Subsequent terms last 10 years.

Berkenkotter was a judge for the Twentieth Judicial District Court in Colorado from 2006 to 2017. She was appointed by former Governor Bill Owens (R) and became chief judge in 2013. 

Prior to joining the Twentieth Judicial District Court, Berkenkotter ran the Antitrust, Consumer Protection, and Tobacco Litigation Units of the Attorney General’s office. Previously, she practiced law at Holmes & Starr, P.C. in Denver.

Berkenkotter earned a J.D. from the University of Denver Law School in 1987. 

The Colorado Supreme Court is the state’s court of last resort. As of November 2020, six judges on the court were appointed by a Democratic governor, and one judge was appointed by a Republican governor.

In 2020, there have been 22 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. One vacancy occurred when a chief justice died, and 21 vacancies were caused by retirements.

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Recall petitions submitted against two Colorado school board members

Recall petitions seeking to remove Kurt Wassil and Stephanie Buker from their positions on the Elbert County School District C-2 school board in Colorado were submitted to the county for verification on November 13, 2020. The recall effort also initially included board member Stacy Morgan, but no petitions were submitted against her by the deadline. To get the recalls on the ballot, 244 petition signatures must be verified by the Elbert County Clerk and Recorder. The county has 15 days to review the signatures.

The recall petitions against the three board members were submitted to the county clerk and recorder on September 9 and deemed sufficient to circulate on September 14. The petitions read: “Our schools have suffered loss of staff, and extracurricular activities/programs. The art program was eliminated for K-12, yet the auto shop program continues for 6 students at a budget of over $35,000. Student enrollment/ratings are the lowest in Kiowa’s history and yet the superintendent is the highest paid in Kiowa’s history. Lack of support for staff and teachers has resulted in low morale, an unhealthy work environment, and a 42 percent turnover in teachers during 2018-2019.”

In reaction to the recall effort, Wassil said the board acknowledges every year that they are deficit budgeting. He said, “We try not to cut programs or classes, but we have to anticipate the budget each year, and there’s a lot of guesswork with the revenue, we get funds from a lot of different sources. A lot of times you don’t know what the revenue will be until school starts and we get an actual number of students who are enrolled.”

Wassil is serving his second term on the board, which expires in 2021. Buker is also serving her second term on the board, which expires in 2023. Morgan is serving her first term on the board, which expires in 2023.

In 2019, Ballotpedia covered a total of 151 recall efforts against 230 elected officials. Of the 66 officials whose recalls made it to the ballot, 34 were recalled for a rate of 52%. That was lower than the 63% rate and 57% rate for 2018 and 2017 recalls, respectively.

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Voters in Arizona, Colorado, Illinois decide ballot measures regarding state income taxes

Voters in 12 states voted on 19 ballot measures addressing tax-related policies on Nov. 3. Ten of the measures addressed taxes on properties, three were related to income tax rates, two addressed tobacco taxes, one addressed business-related taxes, one addressed sales tax rates, one addressed fees and surcharges, and one was related to tax-increment financing (TIF).

The three measures concerning state income taxes were on the ballot in Arizona, Colorado, and Illinois. Arizona voters approved a measure to add a surtax for income above a certain level to fund education. Colorado voters approved an income tax decrease. Illinois voters defeated a measure to allow for a graduated income tax.

Arizona Proposition 208 was approved by a vote of 51.75% to 48.25%. The measure enacted a 3.50% income tax, in addition to the existing income tax, on taxable income above $250,000 (single filing) or $500,000 (joint filing). As of 2020, the highest income tax in Arizona was 4.50%, which was levied on income above $159,000 (single filing) or $318,000 (joint filing). Based on the existing income tax rates, the ballot initiative has the effect of increasing the tax rate from 4.50% to 8.00% on income above $250,000 (single filing) or $500,000 (joint filing). The Invest in Education PAC was registered in support of the ballot initiative. The PAC received $21.6 million in contributions. The Arizonans for Great Schools and a Strong Economy and No on 208 PACs were registered in opposition to the ballot initiative. The PACs received $5.7 million in contributions.

Colorado Proposition 116 was designed to decrease the state income tax rate from 4.63% to 4.55% for individuals, estates, trusts, and foreign and domestic C corporations operating in Colorado. It was approved by a vote of 57.88% to 42.12%.

The Colorado individual income tax rate has been a flat tax rate since 1987. The flat tax was 5% from 1987 to 1998. It was lowered to 4.75% in 1999. The rate has been 4.63% since 2000. Energize our Economy (306 Real Fair Tax) and Americans for Prosperity Colorado Issue Committee raised $1.55 million in contributions to support the measure. Protect Colorado’s Recovery and Fair Tax Colorado reported $3.19 million in contributions to oppose the measure.

An amendment to authorize the state to enact legislation providing for a graduated income tax was on the ballot in Illinois where it was defeated by a vote of 45.46% to 54.54%. The ballot measure would have repealed the state’s constitutional requirement that the state’s personal income tax is a flat rate across income. Instead, the ballot measure would have allowed the state to enact legislation for a graduated income tax. In Illinois, income is taxed at a flat rate of 4.95%.

The Vote Yes For Fairness, Vote Yes for Fair Tax, and Yes to a Financially Responsible Illinois PACs were registered to support the constitutional amendment. Together, the committees had raised $60.33 million. Gov. J.B. Pritzker (D) contributed 94 percent of the PACs’ total combined funds.

The Vote No On The Blank Check Amendment, Coalition To Stop The Proposed Tax Hike, and Chambers Against Progressive Income Tax PACs were registered to oppose the constitutional amendment. Together, the committees had raised $60.86 million. Ken Griffin, the founder and CEO of Citadel, contributed 88 percent of the PACs’ total combined funds.

Going into the 2020 election, 43 states levied a tax on personal income. Of these 43 states, 11 states had a flat income tax rate, meaning there is a constant rate across income before deductions and exemptions. The flat income tax rates ranged from 2.00% in Tennessee to 5.25% in North Carolina. Tennessee’s income tax was scheduled to be reduced to 1.00% in 2020 and to be repealed entirely in 2021. Most (32 of 50) states had a graduated income tax, with different rates applied to different levels of income.

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Signatures due Friday in Colorado governor recall effort

Supporters of the effort to recall Colorado Gov. Jared Polis (D) have until November 13 to submit 631,266 signatures to require a recall election. The recall was approved for circulation by Colorado’s secretary of state on September 14.

The recall effort is being organized by Lori Ann Cutunilli and Greg Merschel. Last year, Merschel was part of a different group that tried and failed to recall Polis. The current recall effort criticizes Polis over his use of executive orders in response to the coronavirus pandemic. Executive orders described in the recall petition include the mask mandate and the closing of businesses and houses of worship due to the pandemic. Merschel said the following on his reasons behind the second recall effort, “He’s [Polis] ruling the state by executive order. He’s usurping the legislature.”

Polis’ office issued the following statement in response to the recall effort, “Since day one, Governor Polis has been focused on delivering real results for Coloradans across the state, and he has done just that. He has delivered on his promise to provide free full-day kindergarten to Colorado’s children regardless of zip code, fought tooth and nail to lower the cost of health care, taken bold climate action putting Colorado on the path to 100% renewable energy by 2040, and cut taxes for small businesses. Now during this unprecedented pandemic, Colorado has been a model for the country thanks to the bold and swift actions taken by Governor Polis including being one of the first states to reopen. Like the majority of Coloradans, the Governor believes that playing politics during this challenging time for our state and country is simply inappropriate and shameful.”

Colorado has a Democratic state government trifecta. A state government trifecta exists when one political party simultaneously holds the governor’s office and both state legislative chambers. Democrats control the state Senate by a 19-16 margin and the state House by a 41-24 margin. Polis was elected as Colorado’s governor in 2018 with 53.4% of the vote.

Sixteen gubernatorial recall efforts are currently underway in 2020. Nine of those efforts are against Michigan Gov. Gretchen Whitmer (D). From 2003 to 2019, Ballotpedia tracked 21 gubernatorial recall efforts. During that time, two recalls made the ballot, and one governor was successfully recalled. Former California Gov. Gray Davis (D) was recalled in 2003 and replaced by Arnold Schwarzenegger (R). In 2012, former Wisconsin Gov. Scott Walker (R) was retained in a recall election. The only other governor to ever be successfully recalled was former North Dakota Gov. Lynn Frazier (R) in 1921.

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33 committees supporting and opposing Colorado’s 11 November ballot measures raised over $59 million, spent over $57 million

Thirty-three committees registered to support and oppose the eleven measures that appeared on the Nov. 3 ballot in Colorado.

The 33 committees raised $59,164,321.52 and spent $57,392,791.82 according to reports due on November 2 that covered election information through October 28. The next regular reports are due on December 3.

Eight of these 11 measures on the ballot were placed on the ballot through citizen petition drives. These measures concern issues like wolf reintroduction, abortion restrictions, citizenship requirements for voting, a national popular vote, paid medical leave, gambling and taxes. The other three measures were referred to the ballot by the legislature.

The campaigns that raised the most money won in all cases — except Proposition 116 to decrease the state income tax rate, where supporters raised $1.55 million and opponents raised more than double that amount, though that measure was approved by Colorado voters.

Three Colorado ballot measures (Amendment C concerning charitable bingo, Proposition 114 concerning wolves and Proposition 117 concerning state enterprises) were too close to call as of Friday afternoon.

The measure with the highest amount of contributions was Proposition 115, which would have prohibited abortions after 22 weeks of gestational age.
This measure was defeated. Opponents of Proposition 115 raised over $9.5 million, while the proposition’s supporters raised nearly $690,000.

The other top most expensive measures in Colorado in 2020 were:

  • Proposition 118 to create a state-run paid medical and family leave program, which was (approved):
    • Support — $8,918,452.11
    • Opposition — $785,423.2
  • Proposition EE to create a tobacco and vaping products tax to fund health and education programs (approved):
    • Support — $4,711,452.39
    • Opposition — $4,410,902.45
  • Amendment B to repeal the Gallagher Amendment and freeze current property tax rates (approved):
    • Support — $7,311,344.10
    • Opposition — $722,140.10

So far in 2020, Ballotpedia has tracked $1.18 billion in contributions to committees supporting or opposing the 129 statewide measures in 2020. Colorado currently ranks fourth among states with the highest ballot measure campaign contributions, behind California ($739.0 million), Illinois ($121.2 million) and Massachusetts ($61.6 million). These numbers and the total dollar-amount will continue to grow based on post-election campaign finance reports.

The most expensive ballot measure in 2020 was California Proposition 22 concerning app-based drivers and relevant labor policies. A total of $223 million was spent on the measure ($203 million by supporters and $20 million by opponents). The measure was approved.

In 2018, Ballotpedia tracked $1.19 billion in contributions to the ballot measure campaigns supporting and opposing the 167 certified 2018 measures. Campaigns supporting and opposing the 13 statewide ballot measures on the 2018 ballot in Colorado raised $70.4 million, making Colorado the state with the sixth-highest ballot measure campaign contributions in 2018. In the Ballotpedia tracking, California ballot measures were first at $369 million in contributions.

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Colorado voters approve paid family and medical leave proposition

Colorado voters approved Proposition 118 in a vote of 57% to 43%. The measure establishes a paid family and medical leave program in Colorado to provide 12 weeks (up to 16 weeks in certain cases) of paid leave (with a maximum benefit of $1,100 per week) funded through a payroll tax to be paid for by employers and employees in a 50/50 split. While eight other states have paid leave programs, this was the first time voters weighed in on the issue through a statewide ballot measure.



Hickenlooper (D) defeats incumbent Gardner (R) in Colorado Senate race

Former Gov. John Hickenlooper (D) defeated incumbent Sen. Cory Gardner (R) and six others in the U.S. Senate election in Colorado. 

Gardner was first elected in 2014 after defeating incumbent Sen. Mark Udall (D) with 48% to 46% victory margin. This year, he was one of two incumbent Republican senators, along with Sen. Susan Collins of Maine, running for re-election in a state that Hillary Clinton (D) won in the 2016 presidential election, when she received 48% in Colorado to Donald Trump’s (R) 43%.

Hickenlooper was governor of Colorado from 2011 to 2019.

Thirty-five of 100 Senate seats are up for election. Republicans have a 53-47 majority. Of the 35 seats up, 23 are held by Republicans and 12 by Democrats, giving Republicans greater partisan risk this year.

Democrats need to win a net four seats to win an outright majority in the U.S Senate.

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