By Jerry Kopel

What if the $30 million Denver School Board mill levy/property tax increase on the November ballot was tainted because three of the five school board members selected in 1993 and 1995 were elected unconstitutionally? What if that fact denied the school board the necessary majority it needed? Now wouldn't that give School Superintendent Irv Moskowitz nightmares!

In Colorado, school district board members are either chosen "at large" or represent geographical areas of the district. In either case, they are elected by ALL district voters. Except Denver.

Denver was the subject in 1992 of SB 175 sponsored by Sen. Dottie Wham (R) and then-Rep. Pat Grant (R). The bill was unconstitutional even as the ink was drying from Gov. Romer's signature. It established new director districts for five of the seven board seats, with voters ONLY from within each of the five districts to elect the board member from that director district.

The problem is Section 15 of Article 9 of the Colorado Constitution. It states:

"The general assembly shall by law, provide for the organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected by the qualified electors of the district."

In 1963, the Colorado Supreme Court decided the issue in Berni vs. Cook, 153 Colo. 444, concerning a Boulder Valley School District election. There were seven districts designated A through G. The court laid out the issue:

"The entire dispute revolves around the question as to whether voting for district directors must be limited to those who reside within Director District A or whether, though nominated and residing within District A, the candidate must be voted on by the entire school district."

The court held the constitution requires a vote by all the school district electors. Was there a dissenting opinion? You bet! The dissent said that even NOMINATIONS from within a director district was a violation of the constitution's language.

Both sponsors of SB 175 were aware of the constitutional problem. A formal opinion on the subject was issued by Legislative Legal Services Office on Jan. 16, 1992, two weeks before their bill was introduced:

"...this office takes the position that the Berni case must be acknowledged as a limitation on the authority of the legislature to enact legislation which provides that a school district director may be elected by the votes of less than a majority of the qualified electors of the district.".

Their conclusion at the end of the legal opinion was that the legislature cannot "require or permit the Denver school district to have a district director plan of representation in which voting for a director is limited to those electors residing in the director district."

Normally, in a hundred out of a hundred instances, such a strong statement by the legislature's own lawyers is sufficient to kill a bill. In this case, the opinion gave the sponsors one slim possibility: The equal protection clause in the fourteenth amendment of the federal constitution, its counterpart in Article 2, Section 25 of the state constitution, or the federal Voting Rights Act of 1965.

The opinion points out that if you are going in that direction, you had better emphasize it with specific language that "an important legal, public policy, or state interest compelled the requirement of such a plan for the Denver school district."

And one early version of the bill prepared by Legislative Drafting did just that as to the Voting Rights Act, but it was discarded by the sponsors in favor of vague language in the law that passed about "parents of pupils enrolled in the district should be represented" and "the views of such communities will be better represented" by sub-district directors.

It turned out the sponsors were probably wise not to mention the federal Voting Rights Act. On Oct.2,1995, the U.S. Supreme Court further weakened that law in an 8 to 1 decision regarding majority-minority electoral districts.

According to David Savage of the Los Angeles Times, the decision "is the latest sign that states no longer will be under legal pressure to create electoral districts that elect minorities to Congress, legislatures, county councils or school boards."

Why hasn't SB 175 been challenged? On Feb. 25,1992, the Denver School Board wrote to each member of the Colorado House, quoting the Legal Services' opinion.

Lack of a challenge may have been due to timidity. In a discussion with one of the attorneys for the Denver School District back in 1992, I was told they wouldn't touch it for fear of being labeled anti-Hispanic. That decision may turn out to be the 1992 school board's worst.

Suppose someone or some group is upset by a positive vote on higher property taxes to raise additional revenue for the Denver School District through the ballot vote in November. They could file a lawsuit claiming the 1993 and 1995 elections were unconstitutional and any votes cast by school directors so elected to place the measure on the ballot were invalid.

Would they succeed? Probably not, for two reasons. First, of five directors elected in 1993 and 1995, three were unconstitutionally elected and two "at large" were validly elected. Two other "at large" directors (or their successors) were elected in 1991 for terms expiring in 1997. If four "at-large" directors voted in favor of the ballot measure, that would be a legitimate majority.

Unfortunately, Lee White, successor to "at-large" board member Carol McCotter, had not yet been appointed when the board voted 5 to 1 to place the measure on the ballot. There were only three definitely valid votes: Coleman, Gray and Lefkowitz.

Also, the lack of one of those four votes on any necessary procedural issue (such as placing the tax matter on the meeting agenda of the board) would taint the final vote.

Which leads to the second reason: The courts would probably hold "unconstitutionally elected" school board directors to be "de facto" directors, which means "a state of affairs which must be accepted for all practical purposes, but is illegal or illegitimate." Thus, they would be entitled to carry out the duties of the office.

That conclusion is based upon a Colorado Supreme Court case several decades ago in which I was a plaintiff arguing that Denver City Council members were improperly elected through council districts out of compliance with equal population. The court agreed, but held the council members elected could continue to hold office and the district lines would have to be changed before the NEXT election.

But at the very least, a lawsuit could tie up the money for some time until the matter was resolved by the Colorado Supreme Court. Such a suit would not be "frivolous" or "groundless" in my opinion. It would survive an early attempt by the school board to have it dismissed.

The facts are not in dispute, and a lawsuit would not be costly. One issue would be whether the constitution means what it says, or whether the legislature has discretion to turn the plain meaning of words on their head. Here the plaintiff would win. The other issue is whether the property tax increase was valid. Here, the defendants would win.

However, mill levies could probably not be altered until a lawsuit (that at least on the surface has merit) is finally resolved.

It didn't have to be this way. The fault lies with the Denver School Board in office in 1992 for not challenging the Wham-Grant statute, with the legislature for passing an unconstitutional law, and with Governor Romer for signing it.

Jerry Kopel served 22 years in the Colorado House and voted against SB 175 on constitutional grounds.