DENVER – The Colorado State Supreme Court today decided to let stand an appellate court ruling that Masterpiece Cakeshop violated Colorado’s anti-discrimination law when it refused to sell a same-sex couple a cake for their wedding reception.

“The highest court in Colorado today affirmed that no one should be turned away from a public-facing business because of who they are or who they love,” said Ria Tabacco Mar, staff attorney for the American Civil Liberties Union’s LGBT Project, who argued the case. “We all have a right to our personal beliefs, but we do not have a right to impose those beliefs on others and discriminate against them. We hope today’s win will serve as a lesson for others that equality and fairness should be our guiding principles and that discrimination has no place at the table, or the bakery as the case may be.”

In 2012, Colorado residents David Mullins and Charlie Craig, along with Charlie’s mother Deborah Munn, visited Masterpiece Cakeshop to order a wedding cake. Mullins and Craig planned to marry in Massachusetts and then celebrate with family and friends back home. Masterpiece Cakeshop owner Jack Phillips informed the couple that, because of his religious beliefs, it was his standard business practice to refuse to provide cakes to customers for same-sex weddings. Phillips has turned away several other couples for the same reason.

Colorado’s Anti-Discrimination Act prohibits businesses, such as Masterpiece Cakeshop, from refusing service based on factors including race, sex, national origin, or sexual orientation. The American Civil Liberties Union and the ACLU of Colorado filed suit on behalf of Mullins and Craig in 2013. In December 2013, an administrative judge ruled that the bakery had illegally discriminated against the couple.

In 2014, the Colorado Civil Rights Commission affirmed that ruling. Masterpiece Cakeshop appealed. In a unanimous decision issued on August 15, 2015, the Colorado Court of Appeals ruled that the bakery unlawfully discriminated against Mullins and Craig by refusing to sell them a cake for their wedding reception.

When businesses and other institutions that serve the public have sought exemptions to laws barring discrimination based on sexual orientation and gender identity, the courts have held that businesses are required to comply with anti-discrimination laws. The courts have ruled without regard to whether LGBT people could have obtained the goods or service elsewhere. Instead the courts have recognized the harm to equal opportunity if lesbian and gay people can be turned away from businesses otherwise open to the public because of who they are.

more on this case

JAILED DEFENDANTS TOO POOR TO BOND OUT REQUIRE COUNSEL AT FIRST APPEARANCE

The U.S. Supreme Court has held the first appearance in court is a “critical stage” where the defendant’s right to counsel attaches. A defendant’s first appearance involves much more than an advisement of rights, and often results in a guilty plea. At this stage, counsel can advocate for reduced bond, ensure the defendant is not inappropriately pressured to plead guilty, advise defendants on the collateral consequences of a guilty plea, and guard against wrongful convictions.
Municipal courts stand alone in denying in-custody defendants counsel at first appearance. In state and county courts, the public defender is available at first appearance to advocate for release of jailed defendants and to advise these defendants on possible pleas when jail is a possible sentence. In almost all Colorado municipal courts, however, municipal defendants must face the judge alone, must make arguments for release alone, and must decide how to plead alone.
Impoverished municipal inmates frequently plead guilty just to get out of jail. Appearing alone before a judge, municipal defendants face a terrible choice: ask for counsel and return to jail until your next court appearance when counsel will be present OR plead ‘guilty’ and get out of jail quicker. Understandably, most municipal defendants simply plead guilty at first appearance to secure their fast release from jail, even those who are innocent and have strong legal defenses.

HB 1309 BRINGS FAIR AND CONSTITUTIONAL PRACTICES TO MUNICIPAL COURTS

HB 1309 ensures counsel at first appearance to the most vulnerable defendants. It requires counsel be provided at first appearance to those defendants who are so poor that they cannot afford to bond out of jail on a minor municipal offense and who face a possible jail sentence.
HB 1309 ensures all defendants in Colorado have the same access to counsel. Unlike municipal courts, Colorado’s state and county courts already automatically provide counsel to criminal defendants at their first court appearance when they are too poor to post bond and face a possible jail sentence. This bill creates parity between municipal courts and all other Colorado criminal courts.
HB 1309 brings Colorado’s municipal courts in line with constitutional standards. By providing counsel at first appearance, when most municipal defendants plead guilty, municipal courts come in line with Supreme Court caselaw holding that first appearance and guilty pleas are “critical stages” where the right to counsel attaches.

HOW MUNICIPALITIES MAY AVOID POTENTIAL COSTS ASSOCIATED WITH IMPLEMENTATION OF HB 1309

**While costs should never excuse failure to meet constitutional standards or failure to ensure fairness in criminal proceeding, municipalities have several ways to avoid significant expenditures in implementing the provisions of HB 1309.

1. Municipalities may designate all or many city offenses as non-jailable. The bill does not require appointment of counsel for individuals held for a non-jailable offense. Most municipal ordinances regulate non-violent conduct that, standing alone, poses no threat to public safety – such as park hours restrictions and limitations on panhandling. Municipalities may choose to designate such ordinances as infractions that are not punishable by jail. Colorado Springs and Arvada are examples of cities that have amended their municipal codes to make many city offenses non-jailable.
2. Municipal prosecutors may waive jail for all or most city offenses or may waive jail for any individual who is still in custody at the time of first appearance. The bill does not require appointment of counsel for individuals who do not face a possible jail sentence, even if held in jail for failure to appear.
3. Municipal courts may immediately or at first appearance release all individuals arrested for a municipal offense on a personal recognizance bond or unsecured monetary bond. The bill does not require appointment of counsel for individuals who are not in custody.
4. Municipal police may issue citations for municipal ordinance violations instead of making custodial arrests. For serious offenses, municipal police may charge violators under Colorado law, rather than municipal law. As a result, the state public defender’s office – rather than the municipality – would then be the entity responsible for appointment of counsel at first appearance for those in custody. Some smaller municipalities, such as Hooper and Morrison, have already adopted this practice.
 

Since 1999, Colorado law has prohibited the seclusion of children as punishment. Children may only be secluded during an ongoing emergency, when a child is in immediate danger of harming self or others.
In June 2014, the Colorado Department of Youth Corrections (DYC) was found to have repeatedly violated the law. An investigation by the ACLU, CJDC and Colorado Disability Law revealed DYC had illegally placed children in isolation for days, weeks, even more than a month as punishment when there was no emergency, as a form of “treatment.” DYC’s own policies condoned this illegal and misguided practice. Because of the investigation, DYC recommitted to following the law by ending its use of solitary confinement except in emergencies, and adopted a new policy to that effect.
In October 2015, DYC was again found to have repeatedly violated the law. After an in-depth investigation, the Colorado Springs Gazette reported 299 instances of youth isolation that occurred after DYC changed its policies. Some children had been held in solitary confinement for days, even when there was no emergency, in violation of the law and DYC’s own recent policy change.
SOLITARY CONFINEMENT HURTS CHILDREN

The reality of solitary confinement for children held by DYC is disgraceful. Youth in seclusion were held in tiny, barren rooms, with only a metal bed frame, toilet and sink. Blankets and mats were withheld except during sleeping hours. Children were expected to pass their days alone, quiet and bored.
Locking children in isolation is psychologically shattering and can cause permanent harm. Experts agree that at-risk youth, particularly those with a mental or developmental disability, are particularly susceptible to the negative mental health effects of isolation. Nearly 60% of the children committed to DYC’s care have mental illness. Further, the majority of suicides in juvenile correctional facilities occur during isolation.
There are better solutions than isolation. National evidence-based research shows that, with proper care, kids can be rehabilitated through positive reinforcement and immediate and proportional interventions to misbehavior. Locking kids in isolation makes it harder for them to recover and grow into productive adults.
WHY HB 1328 IS THE SOLUTION

It codifies current DYC policy and protects children from prolonged isolation. HB 1328 codifies current DYC policy limiting the use of seclusion and establishing procedures to be followed when a child is secluded for more than four hours. These procedures ensure that seclusion is justified by an emergency, and that the child is not having a mental health crisis requiring treatment rather than isolation.
It establishes transparency and oversight to ensure DYC follows the law. DYC has a history of violating state law limiting the use of seclusion on children, and DYC is not subject to most open records laws. Had HB 1328’s transparency and oversight provisions been in place over the last few years, DYC’s illegal use of seclusion would have been caught sooner and fewer children would have been harmed.
Colorado’s children need the protection of state law. DYC’s current leadership may be committed to keeping children out of prolonged solitary confinement, but this should not put the public at ease. DYC policies often change quickly and unilaterally, and leadership turnover is high. In the last two years, DYC has had three directors who made a total of 26 policy changes, with some policies changing more than once.