Loss of Initiative 300 Sad Day for Denver

CCDC CIVIL RIGHTS LEGAL PROGRAM DIRECTOR’S VIEWS ABOUT THE INCREDIBLE LOSS OF THE HONORABLE WILEY Y. DANIEL, SENIOR DISTRICT COURT JUDGE, UNITED STATES DISTRICT COURT OF COLORADO

We lost a great judge. We lost a great person. Senior District Court Judge Wiley Y. Daniel passed away on May 10, 2019. All of the lawyers and their clients who have brought cases in the United States District Court of Colorado before Judge Daniel and all of those lawyers and their clients who could’ve brought cases before Judge Daniel will never be the same. The author of this blog has practiced law in this district for 22 years (in three days it will be 23 years), and I have had the great privilege of practicing before Judge Daniel on numerous occasions. Not enough, but several. He was different in many ways, all of them good.

I certainly do not mean any disrespect to any of the judges in front of whom I have practiced before. Or to any of those in front of whom I currently practice. And it would be inappropriate to comment publicly about judges before whom I might practice. But I must say this: Judge Daniel has always been my favorite. There are too many reasons to list in a blog, but I will do my best to hit the highlights. I want you to know. I feel a great sadness that I will no longer have the fortune to practice before this great judge and great human being ever again. I feel a great sadness that he is no longer with us.

All practicing lawyers, especially those like me who practice in a particular area (in my case, disability rights law as an individual who uses a motorized wheelchair) probably have certain judges they might prefer. They might prefer those judges because, for those of us who practice in federal court, we practice before judges who are nominated by the President of the United States who are then confirmed by the United States Senate; some of us might believe (and some of us do believe) that those political affiliations will color the opinions, attitudes and judgments of our judges. Some practicing lawyers simply might not like the personality of a particular judge. I remember well a particular judge whom most lawyers I know feared yet I never did because I found the particular judge to be fair even though the judge was known for being temperamental, disagreeable and for having a generally antagonistic personality. Some practicing lawyers might dislike a certain judge because that judge opposed the lawyer on a case when the judge was still practicing and had not yet been appointed and confirmed to the bench. There are many reasons why some practicing lawyers don’t like certain judges.

But some judges are just likable no matter what. In this practicing lawyer’s opinion, Judge Daniel was that kind of judge.

As many of you know, in civil practice, lawyers do not go to trial on many cases; nevertheless, we do have many legal arguments we must make before judges regularly in many of our cases. I and my co-counsel had the pleasure of arguing cases before Judge Daniel several times. Judge Daniel was simply different.

One of the most important differences is that Judge Daniel was about “telling it like it is.” This is a theme that describes everything good I have ever felt about him.

The Guidepost: Judge Daniel told it like it was the moment he entered the courtroom, and we heard, “All rise!” We knew that what was coming was going to be the straightforward, simple, plainspoken truth. Often, Judge Daniel would begin a hearing with a statement something like the following: “I have just a couple of comments before we begin.” Or, “Here is what we are going to do today, and here is what we are not going to do today.” These guideposts always told the parties where he was coming from and where he wanted us to go. Even though I don’t believe I have ever practiced before a fairer judge, Judge Daniel made his brief comments (1) to let us all know he knew the history of the case inside and out;[1] (2) this is what the proceeding was about; (3) this was where his interests for the course of the proceeding were;  and (4) we had better follow them because otherwise we were wasting time. A guidepost from the Court is something a practicing lawyer (no matter how many years we have been at it) is very thankful for when entering the courtroom. Judge Daniel told us what he wanted, why he wanted it and why it wasn’t worth bothering doing anything else.

Fairness. Even though Judge Daniel gave us all the guidepost on his way into the hearing, he never failed to make sure the lawyer who might not have received the telegraphed message during the guidepost commentary had the opportunity to make the lawyer’s client’s case. The record was always clear. Both sides would have the opportunity to make all of their arguments before one of them was reminded of the rules set forth in the guidepost. He also found it very important to treat every lawyer and client with the greatest amount of respect. I never saw or heard Judge Daniel be unkind or derogatory in the slightest way to anyone. I also always found him to be very accommodating for attorneys with disabilities and our clients who have disabilities. He did so without even thinking about it. It was just a natural part of who he was and how he understood his role in the “people’s courthouse.”

Writing: I love reading Judge Daniel’s orders. Short, brief, simple and straight-to-the-point sentences. No words wasted. Everything there that needed to be was. Nothing that did not. Looking back over his orders in our cases, he usually cited to one case for legal authority instead of some long, unnecessary string cite. Why bother, when one case will do? He wrote like he talked: He told it like it was.[2]

There are so many other reasons why some other practicing lawyers including myself may have really had great respect for Judge Daniel.

He was the first African-American[3] judge appointed to the United States District Court of Colorado, appointed by President Bill Clinton in 1995. He was born on September 10, 1946, in Louisville Kentucky. He also attended Howard University both as an undergraduate, receiving his Bachelor’s Degree in 1968 and his Juris Doctor Degree in 1971. Howard University is the alma mater of one of my heroes, United States Supreme Court Justice Thurgood Marshall after Justice Marshall was denied admission to the University of Maryland College of Law in 1930 because he was Black.

In 2017, the Center for Legal Inclusiveness presented Judge Daniel with The Lifetime Achievement Award. I think many of the reasons why I greatly respect, like and will miss Judge Daniel are best summed up here in his own words and in his own voice:

Click Here for Captioned YouTube Video of the Honorable Wiley Y. Daniel

Despite the fact that the United States District Court was established in 1876, the only other Black judge appointed to the United States District Court of Colorado is Raymond Moore. Judge Moore was appointed by President Barack Obama in 2013.

[1] He once said in one of our hearings in a case that happened about 4 1/2 years after the case started and every motion a lawyer could dream of was filed in the case (I won’t say by whom): “Unfortunately, even though I’m a Senior Judge, my memory is just as good as before. What can I say, it’s a blessing, but also a curse, sometimes.” Either way, it was always true. He knew the case. We did not have to worry about that.

[2] A typical sentence look like this: “I disagree with this assertion for the reasons stated above.” “I find this argument an attempt by Defendants to re-litigate Plaintiffs’ standing.” “The named Plaintiffs have suffered and will suffer in the future if the Elevated Entrances are not removed.” Maybe that is why Judge Daniel’s Practice Standards warned lawyers like me, “Excessive or prolix statement of facts sections will be STRICKEN.” The bolding appears in his Practice Standards. Why bother using something like “exceedingly and superfluous” when you can simply say “prolix?”

[3] I generally use the word “Black” instead of the word “African-American” even though I know that different individuals prefer different terms, which is why I use the term “African-American” here because it is the term the judge Daniel used. I have been corrected by many friends and colleagues when I have referred to them as “African-American.”  They have explained to me just as I am considered “White,” they are considered “Black.” I have been corrected by friends and colleagues that do not feel as though they are “African-American” because they have no connection to the country of Africa. This makes sense to me since I too was born in this country and many of my ancestors were as well; I don’t feel connected to any other country except America and yet my race is described as “White” or sometimes as “Caucasian,” not as “Welsh-American” or “German American.”

Restaurant Review from CCDC

You will not find restaurant reviews on the CCDC blog often, and almost never by me, but today is different.  CCDC took the members of our legislative team who were available to lunch today at Pizzability at 250 Steele Street to thank them for their many hours of tireless work this session.  They were an admirable team and deserved more than lunch.  However, lunch and our undying gratitude are what we can provide.  Our amazing community organizer Dawn Howard chose the location.

Like most restaurants in Cherry Creek North, it is physically small.  Unlike any other restaurant in that area where I have eaten, I did not feel in the way—even when I was objectively in the way.  In any space, when a bunch of us come in at the busy hour we can be..well…in the way.  It only takes a couple of wheelchairs, never mind some canes, walkers, dogs, and general klutziness to make us seem like we are taking over.   When we are doing an action that is exactly what we want, but when we go to eat out, whether individually or in a small group we do not want to feel as if our mere presence is an inconvenience.   So today we show up and our presence overwhelms the place both physically and logistically.  Yet we are greeted with warmth and genuine pleasure that we are there.   When I was objectively in the way blocking an aisle no one bumped into me, no one asked me to move, no one gave me “the look”.  No employee rushed to serve me quickly for the purpose of getting me out of the way.

Most of our crew had ordered but there were three of us left when I arrived.  The bill for three lunches in Cherry Creek North came to $16.   The food was good.  Most significant for me is that they had Gelato—I saw that and forgot about pizza.  The slices that my colleagues ate looked terrific.  They were big, and hot and had many varieties. Salads were an option also and non-alcoholic drinks appeared to be free with the pizza.  They had some alcohol for sale as well…soon they will have pairing suggestions.

As you might guess by the name, this is a restaurant that sells mostly pizza and most of the employees are people with disabilities, particularly people who appeared to have intellectual and developmental disabilities.  Most of the customers eating there today appeared to have disabilities as well.

My personal food tastes are more in line with other places in Cherry Creek North.  Earlier this week I had an hour in between meetings in that part of town and went somewhere else.  The food I like (and admit it is kind of ridiculous food) is more like an overpriced salad with things like goat cheese, grapes, and cranberries.  I had that with unsweetened tea (trying to be good diet wise) and while the food was delicious, and there was much more physical space in this place than at Pizzability, I felt completely in the way the entire time I was there.   It was uncomfortable.  While no one was rude or even unkind it was my presence was made people uncomfortable.   I had to ask several people to move to get to a space to eat.  I actually considered getting it to go even though it was raining and cold that day.  I am sure the people in this restaurant (staff and customers) would have been relieved had I just taken the food to go.  Today, when some of choose to sit outside at the tables (it was probably 60 degrees and felt lovely) they asked repeatedly if we were sure we were comfortable and offered to move things around if we preferred to be inside.  The offer was made in a manner that showed respect and that they valued our business.

There were other cool features.  The menus are paper and you circle what you wanted and write your name.  Accessible for Deaf folks and people that do not speak English, do not read, etc.  Some work would be required to make it accessible for blind folks (there is a menu online).  There was a “sensory corner” with various objects.  Each plate was different and they were painted by artists from the Access Gallery (an art gallery for disabled artists).

There did appear to be someone without a visible disability running things and the way she talked there was a training component for employees.  (I learned later on their facebook page that this is indeed a training program)The employees were working hard and seemed happy, and the work is real work that valued employees do in restaurants every day.  If part of the goal is to train workers for “integrated” jobs, I am sure that will work.  However, some employees may want to stay and be around others with disabilities.   Maybe some will become supervisors or trainers.  Maybe some will prefer to keep doing the great job they are doing today.

Is this segregated?  Maybe?  Not sure that it matters because it is a choice. Doing a good job and being paid for work, and continuing to learn and improve at one’s job is what adults do in our society.  Other groups have businesses that are primarily run by and serve specific communities.  They do not eschew customers from outside groups but they cater to their own communities.  This is how disenfranchized communities build economic power.  There are “pink pages” advertising gay-owned businesses.  There are Latinx and Black Chambers.  Why not promote and support more disability-run/disability positive businesses?  Non-disabled people can work and eat there but the atmosphere and culture stay disability positive.  Just like as a white person I can go to eatery owned, staffed, and patronized mostly by people of color.  I am welcome to show up but not to inappropriately take over the culture of the place (as white people often want to do).   Communities of color started and continue these businesses because there is an economic and cultural need for spaces that do not have to bend to the dominant culture.   That is cultural pride, not involuntary segregation.  We need to start understanding the difference.

We need businesses like this in our community..that is by and for our people.  Where non-disabled allies are welcomed but where our disability culture and our vibe will stay the dominant feeling.   We need to stop defining success by how much we interact with people who do not have disabilities.

I know that I preferred eating lunch in a disability positive environment, among not only my peers/colleagues with disabilities but among other customers and employees with disabilities.   I would rather eat in a place where I feel comfortable and welcome than in a place where I am obviously in the way.  The next time I happen to have an hour in between meetings in Cherry Creek North, Pizzability will get my business!  I encourage you all to do the same.  I am sure they will also welcome those of you without disabilities too.

Keep Your Eyes on the Prize

By Michael Neil

The results of this past Tuesday’s municipal election in Denver were, I think, a grave sadness to most of us believe in.  In many ways, fear and the status quo defeated human rights, money defeated compassion about poverty, and misinformation triumphed overall. But, even with all of that said, many races are going to runoffs, and many of those races pit candidates of the status quo against people who believe in human rights, in greater accessibility in our city, in criminal justice reform, and so many more issues that I believe are our issues nearly as much as Medicaid, LTSS, and CDASS are.  So, as the great folk song and spiritual says:

Keep your eyes on the prize, hold on
Freedom’s name is mighty sweet
And soon we’re gonna meet
Keep your eyes on the prize, hold on

We are not done. For those of us who live in northwestern Denver, north-central Denver, including downtown, Five Points, Elyria-Swansea, and beyond, a stretch of central Denver from eastern Capitol Hill to north Cherry Creek, and even in east-central Denver, we are not done and we must keep our eyes on the prize with these runoff elections. I know we want to slow down after the legislative session and the first round of balloting in the municipal election, whether in weariness or frustration, or both.  But we can’t do that just yet. Our city deserves better and our community does too.

2019 Legislative Session Wrap Up

This was a busy session as is typical whenever there is a new administration and many new legislators.  Despite some unfortunate partisanship that caused delays,  the reading out loud of 2000 page bills, hearings that occurred during a blizzard, and overnight sessions some great work did get done that will benefit the people of Colorado including people with disabilities.

Before talking about the bills, I want to call out the amazing CCDC team that worked at the Capitol this year.

• CCDC Board Co-Chair Josh Winkler showed his typical leadership working some bills very hard, following the budget, and mentoring some of our newer volunteer lobbyists. Other board members that participated in the process were Scott Markham and Dr. Kimberley Jackson.
• Our volunteer lobbying team consisted of Francesca Maes, Michael Neil, Jennifer Roberts, Haven Rohnert, and Linn Oliver with help from Jennifer Remington, Auralea Moore, and Tim Postlewaite.
• Valerie Schlecht did a fantastic job as our contract lobbyist for mental health issues and stepped up on several other issues as a volunteer. Dawn Howard our community organizer, AKA Cat Herder in Chief did a great job making sure everyone knew what was happening, where people were needed, etc.

CCDC wants to thank our many partners, in particular the Arc of Colorado, Arc of Aurora, Arc of Adams, the Colorado Center on Law and Policy, the Colorado Children’s Campaign, 9-5 Colorado, ACLU of Colorado, Colorado Senior Lobby, Disability Law Colorado, Colorado Common Cause, PASCO, and Accent on Independence Homecare amongst others.  We also want to thank Colorado Capitol Watch for a great product that made tracking the bills easier.

Because this was a year with many new legislators and many groups rushing to push through bills that had struggled in years past, many of which were bills we were going to support, CCDC made a deliberate decision to NOT run our own proactive bills this year but to focus on our coalition work, and building relationships with the many new Senators and Representatives.   We laid groundwork for policies we want to promote over the next few years while focusing on the many coalition bills and responding to bills that affected our community.    We followed 139 bills.  This report shares the highlights-not every bill that we worked on during the session.

Housing:

This is being dubbed the year of the renter.    There were many bills that helped renters, along with some that will fund affordable housing.

• HB 19-1085 Increases the property tax/heat/rent rebate program both the amount of the grant and the income limits for people eligible for this grant through July 2021.
• HB 19-1106 Limits rental application fees to actual costs
• HB 19-1118: Requires landlords to expand the notice before eviction from three to 10 days, hopefully giving people a way to either find a new place to live or cure the problem that led to the eviction
• HB 19-1135 Clarifies that income tax credits for retrofitting a home for accessibility are available when one retrofits a home for a dependent.
• HB 19-1170 Improves warranty of habitability in housing to make it work for tenants.
• HB 19-1285 and HB 1332 Affordable housing funding
• HB 19-1309 Creates mobile home park dispute resolution and enforcement program, also increasing time to move if there is sale or eviction.
• HB 19-1328 Responsibilities of landlords & tenants to address bed bug infestations.
• SB 19-180 Creates an eviction defense fund to help low-income people

Health Care:

• HB 19-1044 Allows for an advanced directives for behavioral/mental health.
• HB 19-1120 Multiple approaches to address and prevent youth suicide
• HB 19-1151 Revisions to the Traumatic Brain Injury Program funded by the Brain Injury Trust Fund.
• HB 19-1176 Enables a study of various methods of health care reform including an option for universal health care.
• HB 19-1189 Reforms wage garnishment laws to take into account medical expenses and medical debt.
• HB 19-1211 Reforms what health insurance companies can and cannot do regarding prior authorization. This is to stop insurance companies using prior authorization to harass doctors and deny patients.
• HB 19-1216 Measures to reduce the cost of insulin.
• HB 19-1233 Health care payment reform to promote increasing utilization of primary care.
• HB 19-1269 Mental Health Parity-variety of measures to require both private insurance companies and Medicaid to pay for mental health care appropriately.
• HB 19-1287 Increases treatment funding for substance use disorders
• SB 19-001 Expands the Medication Assisted Treatment pilot program
• SB 19-005 Gives state permission to request permission from the federal government to import drugs from Canada to give Colorado residents price relief
• SB 19-010 Funds professional mental health services in schools
• SB 19-073 Creates statewide system to allow electronic uploading of advance directive documents so in the case of emergency any hospital can ascertain the wishes of the individual. This is voluntary.
• SB 19-079 Requires some doctors to submit prescriptions of controlled drugs electronically
• SB 19-195 Creates a system to better coordinate children’s mental health policy
• SB 19-222 Increases mental health services for people at risk of institutionalization
• SB 19-238 Requires the 8.1% increase for personal care and homemaker be passed directly to workers, and sets up stakeholder group to address issues with personal care workforce.

THERE WERE A NUMBER OF BILLS RELATED TO THE COST OF PRIVATE INSURANCE AND HOSPITALS.  PLEASE CHECK OUT THE COLORADO CONSUMER INITIATIVE OR THE COLORADO CENTER ON LAW AND POLICY FOR REPORTS ON THOSE BILLS.

Good Government:

• HB 1062 Allowing sale of property at the Grand Junction regional center
• HB 19-1063 Allows information sharing between adult and child protective services and allowed people who are subject to adult protective services to see their own records.
• HB 19-1084 Requires that staff of legislative council prepare demographic notes on certain bills. For a handful of bills each future session the citizens and elected officials of Colorado will be able to have research on how a bill affects specific (often underrepresented) populations.
• HB 19-1239 Creates a grant program to do outreach for the 2020 census.
• HB 19-1278 A variety of changes to election law making it easier for voters
• SB 19-135 Requires a study of state procurement disparities to see if state contracting is being fair and inclusive to businesses owned by people of color, women and people with disabilities.

Education:

• HB 19-1066 Requires schools to count special education students in graduation rates.
• HB 19-1134 Research for better methods to identify dyslexia in young children
• HB 19-1194 Limits schools ability to expel and suspend children in and below the 2^nd grade
• HB 19-066 Creates grant program to help defray costs of high cost special education students

Employment:

• HB 19-1025 Limits employers’ ability to ask about criminal backgrounds (with appropriate exemptions) before employee goes through the application process.
• HB 19-1107 Creates job retention and employment support as part of the Department of Labor and Employment
• SB 19-085 Increases enforcement for those facing pay-based discrimination
• SB 19-188 Creates a study of Family Medical Leave

Transportation:

• HB 19-1257 and HB 19-1258 Brings to the voters a request for state to keep and spend excess revenue for transportation and schools
• SB 19-239 Creates a stakeholder process to address the changes in transportation

Justice Systems:

• SB 19-036 Creates pilot program to remind people of court dates
• HB 19-1045 Provides funding for an office of Public Guardianship
• HB 19-1104 Creates a right to counsel for parents who are facing custody loss to be represented through the office of respondent parent counsel.
• HB 19-1777 “Red Flag” bill that sets out when a judge can temporarily take away someone’s gun if they are at imminent risk of harming themselves or someone else. CCDC was initially concerned that this might be based on diagnosis, but it was not.  It is based only on behavior, has many protections and excellent due process.
• HB 19-1225: Prohibits money bail for some low-level offenses to avoid people being jailed for not having small amounts of money for non-violent crimes.
• SB 19-172 Makes it easier to prosecute people that abuse at risk adults and makes it clear that inappropriate confinement is abuse and illegal.
• SB 19-191 Creates defendants’ rights to pretrial bonds to reduce the number of people with low-level crimes sitting in jail just because they are poor.
• SB 19-223 Reforms regarding the competency process in the criminal court system

State Budget (aka the long bill SB 19-207)

• Increases personal care and homemaker rates for CDASS and IHSS by 8.1%
• Funds housing inspections for host homes in the I/DD system for basic life-safety issues
• Creates an Office of Employment First at JFK Partners
• State funded SLS and Family Support Services waiver slots
• Creates a Supported Employment pilot at HCPF for I/DD waivers
• Provides funding for HCPF customer service
• Provides funding for food and travel for HCPF Member Experience Advisory Council
• Provides state mental hospital funding for Disability Law Colorado settlement

Disability Specific:

• HB 19-1069 Allows Colorado to create our own certification system through the Colorado Commission on the Deaf, Hard of Hearing and Deaf/Blind CCDHHDB to adopt or develop a certification system for American Sign Language interpreters. This is address the shortage of interpreters, especially in the rural areas.  THANKS TO THE INDEPENDENCE CENTER OF COLORADO SPRINGS FOR LEADING THIS BILL.
• HB 19-1151 Revisions to the Traumatic Brain Injury Program funded by the Brain Injury Trust Fund. THANKS TO THE BRAIN INJURY ALLIANCE OF COLORADO FOR LEADING THIS BILL.
• HB 19-1223 Provides application assistance to people on the Aid to Needy Disabled program to help them obtain approval for Supplemental Security Income (SSI). THANKS TO THE COLORADO CENTER ON LAW AND POLICY FOR LEADING THIS BILL
• HB 19-1332 Funds the talking book library
• SB 19-202 Creates a path for accessible ballots for people who are print disabled to allow such individuals to vote in private in our all mail ballot system. THANKS TO THE NATIONAL FEDERATION OF THE BLIND OF COLORADO FOR LEADING THIS BILL.

Overall it was a good year.  There were some disappointments, but there always are—now we have to make sure the bills we like get implemented and make sure people know about these new laws and programs.

Arc of the Universe

“The arc of the moral universe is long, but it bends toward justice.” ~ Martin Luther King Jr.

Alert: RA for Access-a-Ride Users with Hearing Issues

If you are an RTD Access-a-Ride user or plan to be, RTD may provide a reasonable accommodation for persons with hearing loss.  The accommodation would allow user to use an email to make or change Access-a-Ride reservations.

For more information please visit RTD website at http://www.rtd-denver.com/accessARide.shtml

Click “Accessibility Services”

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