Cynthia Masters, Michelle Montoya, Mildred Anne Kolquist, Lawrence Garcia, Paula Scena, Jane Harmon, Lynne Rerucha, and Denver Classroom Teachers Association, Plaintiffs-Appellants,
School District No. 1 in the City and County of Denver; Jane Goff, Valentina Flores, Debora Scheffel, Pam Mazanec, Marcia Neal, Steve Durham, and Angelika Schroeder, in their official capacities as members of the Colorado State Board of Education, Defendants-Appellees.
City and County of Denver District Court No. 14CV30371 Honorable Michael A. Martinez, Judge
McNamara Roseman & Kazmierski LLP, Mathew S. Shechter, Todd McNamara, Denver, Colorado; Kris Gomez, Denver, Colorado; Alice O'Brien, Philip A. Hostak, Washington, D.C., for Plaintiffs-Appellants
Lewis Roca Rothgerber LLP, Eric V. Hall, Tamara F. Goodlette, Brent R. Owen, Denver, Colorado, for Defendant-Appellee School District No. 1 in the City and County of Denver
Cynthia H. Coffman, Attorney General, Antony B. Dyl, Senior Assistant Attorney General, Jonathan P. Fero, Assistant Solicitor General, Michelle Merz-Hutchinson, First Assistant Attorney General, David Dahl, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees Jane Goff, Valentina
Flores, Debora Scheffel, Pam Mazanec, Marcia Neal, Steve Durham, and Angelika Schroeder, in their official capacities as members of the Colorado State Board of Education
Holland & Hart LLP, Anastasia A. Fainberg, Stephen G. Masciocchi, Jason A. Crow, Denver, Colorado, for Amicus Curiae Colorado Succeeds
¶ 1 In this teachers employment case, plaintiffs, Cynthia Masters, Michelle Montoya, Mildred Anne Kolquist, Lawrence Garcia, Paula Scena, Jane Harmon, Lynne Rerucha, and Denver Classroom Teachers Association (DCTA), appeal from the district court's judgment granting defendants' C.R.C.P. 12(b)(5) motion to dismiss their claims under the Colorado Constitution's contract clause, art. II, § 11, and due process clause, art. II, § 25, for failure to state a claim upon which relief can be granted. We reverse and remand.
I. Statutory Background
¶ 2 The Teacher Employment, Compensation, and Dismissal Act (TECDA) was enacted in 1990. Ch. 150, sec. 1, § 22-63-101, 1990 Colo. Sess. Laws 1117. It repealed and re-enacted the Teacher Employment, Dismissal, and Tenure Act of 1967 (TEDTA). Id. TECDA maintained TEDTA's distinction between probationary teachers, who must complete a three-year probationary period, and nonprobationary teachers, who have successfully completed that probationary period. See § 22-63-103(7), C.R.S. 2015; Ch. 435, sec. 1, § 123-18-12(1), 1967 Colo. Sess. Laws 979. Under TECDA, nonprobationary teachers may only be dismissed for specified reasons constituting good and just cause and only after an opportunity to be heard. §§ 22-63-301 to -302, C.R.S. 2015.
¶ 3 In 2010, the General Assembly passed Senate Bill 10-191 (SB 191), which amended TECDA. Ch. 241, sec. 11, § 22-63-202, 2010 Colo. Sess. Laws 1070. Through SB 191, the legislature changed the method for evaluating teachers and placed a new emphasis on measuring teacher effectiveness. See sec. 5, § 22-9-105.5, 2010 Colo. Sess. Laws at 1056. Among other things, SB 191 added provisions linking the achievement and retention of a teacher's nonprobationary status to certain effectiveness criteria. Sec. 10, § 22-63-103(7), 2010 Colo. Sess. Laws at 1070.
¶ 4 SB 191 maintained TECDA's provisions that nonprobationary teachers may only be dismissed for specified reasons and only after an opportunity to be heard. See § 22-63-301. It added provisions allowing a school district to remove (or displace) nonprobationary teachers from their teaching positions when a determination is made that their services are no longer required because of a "drop in enrollment; turnaround; phase-out; reduction in program; or reduction in building, including closure, consolidation, or reconstitution." § 22-63-202(2)(c.5)(VII), C.R.S. 2015; 2010 Colo. Sess. Laws at 1073.
¶ 5 Before SB 191 was passed, TECDA required a school district to find a new position for a displaced nonprobationary teacher, and the receiving school was required to accept the teacher. See § 22-32-109(1)(f)(I), C.R.S. 2015. This was known as "forced placement." Through SB 191, the legislature replaced this procedure with a "mutual consent" procedure whereby a displaced nonprobationary teacher may be assigned to a position at another school only with the receiving principal's consent and input from at least two teachers at the school. See § 22-63-202(2)(c.5)(I); 2010 Colo. Sess. Laws at 1070-73.
¶ 6 Also, through SB 191, the legislature authorized the school district to place on unpaid leave any displaced nonprobationary teacher who has not secured a mutual consent position in the district within twelve months or two hiring cycles, whichever is longer. § 22-63-202(2)(c.5)(IV); 2010 Colo. Sess. Laws at 1072.
II. Facts and Procedural History
¶ 7 As set forth in plaintiffs' amended complaint, plaintiff teachers were employed as full-time teachers by Denver Public Schools (DPS). With the exception of Ms. Kolquist, all the plaintiff teachers achieved nonprobationary status under TECDA before SB 191's effective date. Ms. Kolquist also achieved nonprobationary status, but she did so after SB 191's effective date. Plaintiff DCTA is a public employee labor organization that represents thousands of teachers employed by DPS.
¶ 8 Plaintiffs commenced this action in Denver District Court. They pleaded two claims for relief. First, they alleged a violation of the Colorado Constitution's contract clause, art. II, § 11. Specifically, they argued that TECDA created contracts between nonprobationary teachers and their employing school districts, and such teachers therefore have vested rights to TECDA's employment protections. Plaintiffs claimed that TECDA's challenged mutual consent provisions substantially impair those contractual rights insofar as they allow school districts to place nonprobationary teachers on unpaid leave without cause or a hearing. ...