Friday, January 18, 2013

House Judiciary Committee discusses definitions, decides that "shall" is not the same as "must"

Must we know what the word "shall" means? Shall we, finally, understand the definition of "must?"

Those questions were answered "yes" by a House committee Thursday as a bill to clarify the legal import of the two words, which are common in statutes, was approved by a unanimous vote.

The problem is that the meanings of the words are sometimes confused by lawyers and judges. The word "shall" is generally used in statutes to specify an obligation that a person or an entity must carry out. In other words, the word implies that an action or inaction is mandatory.

"Must" is sometimes used the same way - to indicate a duty.

The measure sponsored by Reps. Claire Levy, D-Boulder, and Bob Gardner, R-Colorado Springs, would clear up that confusion.

HB 13-1029 specifies that the word "must," as used in a statute, would mean that a person or entity has to fulfill a certain condition or conditions before some consequence that flows from the condition or conditions would become effective. By contrast, according to the bill, "shall" would mean, in all statutes subsequently enacted, that a person or entity has a duty to do or not do something.

If they become law the definitions provided by the bill would not be retroactive to statutes enacted in prior years.

That may mean there will be arguments in later cases about whether the 2013 definition of "shall" or "must" applies or whether a more archaic understanding of the terms should be invoked.

The measure is sponsored in the Senate by Democrat Gail Schwartz of Snowmass Village and Republican Ellen Roberts of Durango.

Civil unions bill to get first hearing next week

A bill to authorize civil unions for gay couples will receive its first hearing next week.

SB 11 will be heard by the Senate Judiciary Committee on Wednesday, Jan. 23 at 1:30 pm.

Observers expect that the hearing will be the first in a series of steps leading to enactment of the legislation this year.

In 2012 the speaker of then-Republican House of Representatives stirred controversy by failing to allow a vote on a similar bill on the last day of the session after it had been cleared by the Senate. That bill, which had been approved by three House committees, appeared to have enough support to pass the chamber and head to Gov. John Hickenlooper for a promised signature.

Hickenlooper subsequently called a special session. Rep. Frank McNulty, R-Highlands Ranch, who was speaker at the time, then referred the measure to the House State, Veterans, & Military Affairs Committee, where it died on a party-line vote.

The issue helped Democrats pick up five seats in the chamber in the November election.

SB 11 is sponsored by Sens. Pat Steadman and Lucia Guzman, D-Denver, and Reps. Mark Ferrandino, the current speaker of the House, and Sue Schafer, D-Arvada.

Thursday, January 17, 2013

First big eco-devo bill clears House committee

A bipartisan bill that would bolster up-and-coming Colorado industries by making available grants from state funds cleared a House committee Thursday, moving quickly onto a fast track.

HB 1001 would set aside $12.5 million for entrepreneurs in a range of "advanced industries" that include aerospace, advanced manufacturing, bioscience, electronics, energy and natural resources, technology, and information and infrastructure engineering.

Of that sum, $7 million would be available only to bio-science and other "clean technology" industries. Start-ups in the other covered industry groups could seek funding from the remaining balance.

"Already, Colorado’s research institutions and federal labs bring in close to $2 billion a year in advanced technology research funding,” Rep. Dave Young, D-Greeley and the bill's lead sponsor, said. "This legislation will help us leverage even more dollars, as well as accelerate the commercialization process, which will lead to more products, companies and jobs.”

The bill would set up three separate grant programs to assist with the challenges faced during the start-up process.

The first focuses on research needed to establish that a product concept is viable. It would require that the work be done in appropriate institutions within the state and the grant size would be limited to $150,000.

The second would provide funds for the early start-up stage. The maximum grant would be $250,000. At least half of the venture's employees would have to be based in Colorado.

The third grant program would allow start-ups to seek funding for needed infrastructure. The maximum award would be $500,000.

The vote in the House Business, Labor, Economic and Workforce Development Committee was 8-3.

Republicans Chris Holbert of Parker, Dan Nordberg of , and Libby Szabo of Arvada opposed the measure.

Holbert argued that the bill is not needed because entrepreneurs can obtain initial financing of business ventures from private capital funds and banks.

HB 1001 now heads to the House Appropriations Committee. Rep. Cheri Gerou, R-Evergreen, is co-sponsoring the bill.

According to statistics cited by Gov. John Hickenlooper in a press conference last week that announced the bill, industries covered by the proposed legislation account for more than 500,000 of all jobs in the state and about one-third of wages earned by Colorado workers.

Senate passes civility resolution over Republican dissent

Debate on a routine, and traditional, resolution calling for civil debate in the General Assembly got a little bit exciting Thursday as seven senators dissented.

Senate Joint Resolution 13-004 calls on members of both chambers of the General Assembly to "reflect credit" on the legislature, "inspire the confidence, respect, and trust of the public," and "conduct ourselves during all legislative proceedings in a manner that creates a professional environment."

SJR 13-004 is, in that respect, fairly similar to exhortations pushed by legislators in previous years.

The discord over the measure may be a reflection of a partisan trend. In 2012, for example, when the House of Representatives was under Republican control, the measure was ultimately approved by both chambers, but not until May. In 2011, the first year after the GOP's short-lived takeover of the chamber in the Nov. 2010 election, the resolution passed the Senate, but was never adopted by the House of Representatives.

In 2010, by contrast, the civility measure was approved by mid-February. A similar quick path to passage occurred in 2009, 2008, and 2007 - all years in which Democrats ran both chambers at the capitol.

The seven "no" votes on SJR 13-004 were Sens. Randy Baumgardner, R-Hot Sulphur Springs; Greg Brophy, R-Wray; Bill Cadman, R-Colorado Springs; Larry Crowder, R-Alamosa; Kevin Grantham, R-Canon City; Kent Lambert, R-Colorado Springs; and Mark Scheffel, R-Parker.

Cadman is the Senate minority leader and Scheffel is his deputy.

Crowder said that his vote is a reflection of frustration with the extent of input the Senate's Democratic leadership will allow his caucus.

"I believe in rigorous debate," he said in an email message. "The Democrats' stand is, since they are the majority, we should sit in our seats and say nothing."

Crowder pointed especially to concerns that the Democrats would undermine constitutional rights and attempt to raise taxes.

"Defending your rights and not raising taxes is my job," he said. "In order to do this, we have to fight for you. We do this out of compassion and beliefs and will not weaken on this task, with respect and civility."

Eastern plains Sen. Greg Brophy did not invoke ideology as a reason for his vote. He said he thought the measure is unnecessary.

"Talking about it is as big of a waste of time as running it," he said.

An email request for an interview sent to the other five dissenting senators received no response by press time.

UPDATE, Jan. 23, 2013:

An email message sent by Sen. Randy Baumgardner, R-Sulphur Springs, this morning indicates that he opposed the civility resolution on financial grounds.

"The reason is purely a practical one," Baumgardner wrote. "I was elected to be a good steward with your money. It costs between $6,000 & $10,000 to run one piece of legislation."

Baumgardner noted that he voted for a similar resolution last year. He also implied that the resolution was unnecessary because legislators are implicitly expected to act in an appropriate manner when considering public policies.

"As adults and elected officials, I believe it is understood that we should be civil toward one
another, not just during the legislative session but all year long," Baumgardner wrote. "I try to follow the Golden Rule.'Do unto others as you would have them do to you.'"

GOP bill attacks science education

A group of Republican legislators want less science and more religion in Colorado's public school and university science classrooms.

HB 13-1089 would require K-12 public school teachers to "respond appropriately and respectfully to differences of opinion about controversial issues."

Evolution, climate change, the chemistry involved in the origin of life, and human cloning are specifically mentioned in the bill, which was introduced Thursday.

Josh Rosenau, a spokesperson for the National Center for Science Education and a biologist, said that there is no scientific rationale for focusing on those four topics.

"To me, what really unites the four issues that are listed in these bills is simply that they are scientific topics that conservatives don't like," he said. "It's purely political."

As a legal matter, a measure that purports to allow teachers to teach that that humans and other species were created by a deity would be ineffective under a 1987 U.S. Supreme Court decision.

"The Court ruled pretty decisively and has, in a series of cases going back to the sixties, said that you can’t teach creationism," Rosenau said. "They have specifically talked about laws that single out evolution as inherently suspect. The only reason you’d single out evolution for special criticism and scrutiny is religious motivation. There’s no scientific basis for that singling out of evolution."

The bill includes language that purports to disavow any goal of introducing religious criticism of biology's most fundamental and well-documented concept.

But Rosenau thinks that, notwithstanding that verbiage, the measure would embolden creationist teachers and encourage parents to pressure schools to teach creationism and its ideological sidekick, intelligent design, in the science classroom.

"It’s certainly a dog whistle to creationist teachers and students that they have permission to launch into a creationist lesson," he said. " It would give ammunition to parents who want creationism taught in schools to put pressure on teachers to do so."

Rosenau pointed out that it can be hard to stop teachers from introducing religious notions into their science instruction.

"For that to come to court, that would require not only that teachers are doing these things, but that someone step forward and file a lawsuit," he said.

As for climate change, Rosenau points out that some evangelical Christians object to the current consensus of the world's climatologists because their religion teaches that only God could change the planet's atmosphere.

"They’ll say that the atmosphere is irreducibly complex, that the feedbacks are so carefully created that human intervention couldn’t change it," Rosenau said, referring to religion-motivated doubters of ongoing human-caused climate change.

Similar legislation was enacted in Tennessee in 2012 and in Louisiana in 2008. A number of major scientific organizations have criticized the laws, arguing that they open the door to dishonest claims in science classes that evolution and climate change are scientifically controversial and undermine state laws that determine academic content standards.

"By permitting instructional materials that are not reviewed by the state’s science standards committees, the Louisiana Act and those like it encourage teachers and administrators to work outside these standards," the Society of Vertebrate Paleontology said in a 2008 statement. "This makes it possible for local school boards to define science and science education to suit their own agendas, thereby compromising the quality of science education for students, and allowing religious discrimination in America’s public school science classrooms."

College professors have also objected to bills like HB 13-1089, arguing that they will inevitably lead to efforts to push religious notions in science classes.

"'[A]cademic freedom' for alternative theories is simply a mechanism to introduce religious or nonscientific doctrines into our science curriculum," said a group of more than 200 University of Iowa faculty members in a 2009 statement.

The language in the Colorado bill, like similar bills enacted into law in Tennessee and Louisiana and introduced in recent years in Alabama, Florida, Iowa, Maryland, Michigan, Missouri, New Mexico, Oklahoma, and South Carolina, is largely provided by the Discovery Institute, a Seattle-based organization that advocates the scientifically discredited idea of intelligent design and the bible-based myth that humans and other organisms on Earth were directly created by a deity.

HB 13-1089 has two major parts - one that focuses on K-12 science education and another that focuses on college-level science instruction.

The elementary and secondary school focus of the measure is labeled the "K-12 Academic Freedom Act" and would require school boards, administrators, and teachers to
create an environment within public elementary and secondary schools that encourages students to explore scientific questions, learn about scientific evidence, develop critical thinking skills, and respond appropriately and respectfully to differences of opinion about controversial issues.
To accomplish this goal, HB 13-1089 would require that teachers be allowed "to help students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in a given course."

Rosenau thinks this section might force teachers to grant credit for answers that have no scientific validity.

"What if a student stands up in class and says ‘you taught that life was created by this chemical process billions of years ago, and I think it was created 6,000 years ago?;" Rosenau postulated. "Then, what if the student says, 'That’s what I’m going to put on my test, and if you grade me wrong you’re interfering with my critical thinking?'."

The college and university section of the bill is similar.

The principal sponsors of HB 13-1089 are Rep. Stephen Humphrey, R-Windsor and Sen. Scott Renfroe, R-Greeley.

Co-sponsors include Reps. Perry Buck, R-Windsor; Justin Everett, R-Littleton; Chris Holbert, R-Parker; Janak Joshi, R-Colorado Springs; Dan Nordberg, R-Colorado Springs; Lori Saine, R-Dacono; and Jim Wilson, R-Salida, and Sens. Kevin Grantham, R-Canon City; Ted Harvey, R-Highlands Ranch; and Owen Hill, R-Colorado Springs.