Butler v. Board of County Commissioners for San Miguel County , 2021 COA 32 ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 11, 2021
2021COA32
No. 19CA1913, Jerud Butler v. Board of County Commissioners
for San Miguel County — Employment Practices — Unlawful
Prohibition of Legal Activities as a Condition of Employment;
Labor and Industry — Freedom of Legislative and Judicial
Access Act
A division of the court of appeals considers whether the Lawful
Activities Statute — which prohibits an employer from
“terminat[ing] the employment of any employee” due to the
employee’s lawful off-duty conduct — applies to an employee’s
demotion to another position with the same employer. See § 24-34-
402.5(1), C.R.S. 2020. The division concludes that it does not.
The division also considers whether the Freedom of Legislative
and Judicial Access Act (Access Act) — which prohibits an employer
from taking any action against an employee for testifying before a
committee of the General Assembly or a court or for speaking to a
member of the General Assembly at the committee’s, court’s, or
member’s request — applies to an employee’s voluntary testimony
as a witness in a court proceeding without a court order, subpoena,
or other formal request by a judicial officer. See § 8-2.5-101(1)(a),
C.R.S. 2020. The division concludes that the statute may apply
when a party or a party’s attorney calls an employee to testify as a
witness in a court proceeding and a judge, magistrate, or other
judicial officer allows the testimony.
Accordingly, the division affirms the trial court’s dismissal of
the plaintiff’s Lawful Activities Statute claim, reverses the trial
court’s entry of summary judgment on the plaintiff’s Access Act
claim, and remands for further proceedings.
COLORADO COURT OF APPEALS 2021COA32
Court of Appeals No. 19CA1913
San Miguel County District Court No. 18CV30004
Honorable Kari A. Yoder, Judge
Jerud Butler,
Plaintiff-Appellant,
v.
Board of County Commissioners for San Miguel County, Colorado,
Defendant-Appellee.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE GOMEZ
Terry and Dunn, JJ., concur
Announced March 11, 2021
Killian Davis Richter & Mayle, PC, Nicholas W. Mayle, Damon Davis, Benjamin
P. Meade, Joseph H. Azbell, Grand Junction, Colorado, for Plaintiff-Appellant
Williams, Turner & Holmes, P.C., Jeffrey L. Driscoll, Grand Junction, Colorado,
for Defendant-Appellee
¶1 This case presents two issues of first impression, both arising
under statutory exceptions to the state’s at-will employment
doctrine. First, we determine that the Lawful Activities Statute —
which prohibits an employer from “terminat[ing] the employment of
any employee” due to the employee’s lawful off-duty conduct — does
not apply to an employee’s demotion to another position with the
same employer. See § 24-34-402.5(1), C.R.S. 2020. Second, we
determine that the Freedom of Legislative and Judicial Access Act
(Access Act) — which prohibits an employer from taking any action
against an employee for testifying before a committee of the General
Assembly or a court or for speaking to a member of the General
Assembly at the committee’s, court’s, or member’s request — may
apply when a party or a party’s attorney calls an employee to testify
as a witness in a court proceeding and a judge, magistrate, or other
judicial officer allows the testimony. See § 8-2.5-101(1)(a), C.R.S.
2020.
¶2 Accordingly, we affirm in part and reverse in part the trial
court’s entry of judgment in favor of defendant Board of County
Commissioners for San Miguel County (the County) and against
plaintiff Jerud Butler. Specifically, we affirm the dismissal of
1
Butler’s claim under the Lawful Activities Statute, reverse the entry
of summary judgment on his claim under the Access Act, and
remand for further proceedings.
I. Background
¶3 Butler and his former brother-in-law, Jeremy Spor, worked in
different districts within the County’s Road and Bridge Department.
As Spor and his wife (who is the sister of Butler’s wife) became
embroiled in contested divorce proceedings, Spor and Butler began
having issues at work. Around that time, Butler was promoted to
district supervisor, conditioned on successfully completing a
one-year probationary period and not having any negative
interactions with Spor at work.
¶4 Shortly after his promotion, Butler took approved time off from
work to testify at a parenting time hearing between Spor and his
wife. Butler was not issued a subpoena but came to court
voluntarily at the request of his sister-in-law and her attorney.
During the hearing, he testified about the unpredictable nature of
on-call work with the Road and Bridge Department. He indicated,
however, that he didn’t have any supervisory authority over Spor,
didn’t set Spor’s work schedule, and didn’t know whether Spor had
2
any agreement with his supervisor about his schedule.1 After the
hearing, the court in that case awarded Spor significantly less
parenting time than he had sought.
¶5 Spor lodged a complaint at work. The County conducted an
investigation, after which it demoted Butler to his prior,
nonmanagerial position at a lower rate of pay. The County’s stated
basis for demoting Butler was that his decision to testify about
Spor’s work schedule (when he didn’t supervise Spor and wasn’t
aware of Spor’s scheduling arrangements with his supervisors)
reflected poor managerial judgment and allowed his family dispute
to disrupt the workplace.
¶6 Butler brought this case, asserting claims under the Lawful
Activities Statute and the Access Act.2 The trial court dismissed
1 There is no transcript from the parenting time hearing due to a
failure of the court’s recording equipment. In the course of this
case, Butler offered a summary of what he recalled from the
hearing. Because we construe all factual assertions in Butler’s
favor, we assume for purposes of this appeal that his summary is
accurate. We note, however, that the parties dispute the summary,
including, in particular, whether Butler testified about Spor’s work
schedule specifically and whether he testified that Spor’s schedule
was not conducive to parenting young children.
2 Before bringing this case, Butler filed a federal lawsuit asserting
claims under the First Amendment and the Lawful Activities
3
Butler’s Lawful Activities Statute claim on a motion to dismiss
under C.R.C.P. 12(b)(5), concluding that the statute prohibits only
termination of employees and doesn’t apply to Butler’s demotion.
The court later granted the County’s motion for summary judgment
on Butler’s Access Act claim, concluding that Butler’s hearing
testimony was not protected because it wasn’t provided at the
request of a court. Butler appeals both rulings.
II. Discussion
A. Standard of Review
¶7 We review de novo a trial court’s dismissal of an action under
C.R.C.P. 12(b)(5) for failure to state a claim upon which relief can be
granted. Abu-Nantambu-El v. State, 2018 COA 30, ¶ 8. We accept
all factual allegations in the complaint as true and view those
allegations in the light most favorable to the plaintiff. Id. To
survive a motion to dismiss, a complaint must plead sufficient facts
Statute. A federal district court dismissed the First Amendment
claim and declined to exercise supplemental jurisdiction over the
Lawful Activities Statute claim, and the United States Court of
Appeals for the Tenth Circuit affirmed. See Butler v. Bd. of Cnty.
Comm’rs, 920 F.3d 651 (10th Cir. 2019).
4
that, if taken as true, suggest plausible grounds to support a claim
for relief. Id.; see also Warne v. Hall, 2016 CO 50, ¶¶ 9, 24.
¶8 Similarly, we review a trial court’s grant of summary judgment
de novo. Edwards v. Bank of Am., N.A., 2016 COA 121, ¶ 13. We
give the nonmoving party the benefit of all favorable inferences that
may reasonably be drawn from the evidence, and we construe all
doubts as to the existence of any genuine issue of material fact in
that party’s favor. Id. at ¶ 12. Summary judgment is proper only if
the pleadings and supporting documentation demonstrate that
there is no genuine issue of material fact and that the moving party
is entitled to judgment as a matter of law. Id. at ¶ 11; see also
C.R.C.P. 56.
¶9 We also review a trial court’s interpretation of a statute
de novo. Lewis v. Taylor, 2016 CO 48, ¶ 14. In construing a
statute, our primary purpose is to ascertain and effectuate the
legislature’s intent. McCoy v. People, 2019 CO 44, ¶ 37. To do so,
we focus first on the language of the statute. Id. We give the
statutory words and phrases their plain and ordinary meanings,
read those words and phrases in context, and construe them
according to the rules of grammar and common usage. Id. We also
5
endeavor to effectuate the purpose of the legislative scheme, reading
that scheme as a whole, giving consistent effect to all of its parts,
and avoiding constructions that would render any words or phrases
superfluous or would lead to illogical or absurd results. Id. at ¶ 38.
¶ 10 If the statutory language is unambiguous, we apply its plain
and ordinary meaning and look no further. Carrera v. People, 2019
CO 83, ¶ 18. But if the language is ambiguous, in that it is
susceptible of multiple reasonable interpretations, we may consider
other aids to statutory construction, such as the consequences of a
given construction, the end to be achieved by the statute, and the
statute’s legislative history. McCoy, ¶ 38.
B. Lawful Activities Statute
¶ 11 The parties dispute whether the Lawful Activities Statute’s
prohibition on termination of employment due to an employee’s
lawful off-duty conduct extends to the demotion of an employee.
We conclude that it does not.
¶ 12 Section 24-34-402.5, titled “[u]nlawful prohibition of legal
activities as a condition of employment,” provides that
[i]t shall be a discriminatory or unfair
employment practice for an employer to
terminate the employment of any employee due
6
to that employee’s engaging in any lawful
activity off the premises of the employer during
nonworking hours unless such a restriction:
(a) [r]elates to a bona fide occupational
requirement or is reasonably and rationally
related to the employment activities and
responsibilities of a particular employee or a
particular group of employees, rather than to
all employees of the employer; or (b) [i]s
necessary to avoid a conflict of interest with
any responsibilities to the employer or the
appearance of such a conflict of interest.
§ 24-34-402.5(1) (emphasis added). It also creates a private right of
action for employees who are aggrieved by a violation of these
provisions. § 24-34-402.5(2)(a).
¶ 13 We conclude, for five reasons, that the statute unambiguously
prohibits only termination or discharge of an employee’s
employment and does not extend to demotion of an employee to
another position with the same employer.
¶ 14 First, we look to the plain and ordinary meaning of the word
“terminate.” Where, as here, a statutory term is not defined in a
statute, is a word in common usage, and is a word where people of
ordinary intelligence needn’t guess at its meaning, we may refer to
dictionary definitions in determining its plain and ordinary
meaning. Mendoza v. Pioneer Gen. Ins. Co., 2014 COA 29, ¶ 24.
7
The dictionary definition of “terminate” is “to come to an end in
time.” Merriam-Webster Dictionary, https://perma.cc/23H7-
XWH2. So, a literal reading of the statute is “to end the
employment of any employee.” This unambiguously refers to the
end of the employment relationship — not just the cessation of a
particular position.
¶ 15 Second, we glean no significance from the legislature’s use of
the word “terminate” in section 24-34-402.5, as opposed to the
word “discharge” used in other employment statutes. See, e.g.,
§ 24-34-402(1)(a), C.R.S. 2020; see also People v. Jompp, 2018 COA
128, ¶ 68 (“Sometimes the legislature uses different language to
achieve similar results.”). Courts have used these two words
interchangeably in interpreting the Lawful Activities Statute. See,
e.g., Coats v. Dish Network, LLC, 2015 CO 44, ¶ 1 (“This statute
generally makes it an unfair and discriminatory labor practice to
discharge an employee based on the employee’s ‘lawful’ outside-of-
work activities.”) (emphasis added); Robert C. Ozer, P.C. v. Borquez,
940 P.2d 371, 375 (Colo. 1997) (“[A] jury instruction submitted
pursuant to this statute would necessarily include an element
providing that the employee was discharged because he or she
8
engaged in lawful activity away from the employer’s premises during
nonworking hours.”) (emphasis added).3
¶ 16 Nothing in the language of the Lawful Activities Statute
suggests the legislature intended a different meaning when it used
the word “terminate” rather than “discharge.” Indeed, even if there
might be a distinction between the two words in some contexts, the
legislature made its intent clear in this statute by adding the
phrase “the employment of any employee” after “terminate.” See
§ 24-34-402.5(1). By proscribing “terminat[ing] the employment of
any employee,” the legislature signaled that the statute applies only
to the end of the employment relationship.
¶ 17 This distinguishes the Lawful Activities Statute from section
24-19-102(5)(a), C.R.S. 2020, on which Butler relies. That statute
defines “postemployment compensation,” for purposes of provisions
limiting postemployment compensation for government-supported
3 As Butler admits, the legislature has, at times, used “terminate” in
a way that seems synonymous with “discharge.” See, e.g., § 17-1-
115.5(1)(k), C.R.S. 2020; § 17-2-202.5(1)(d), C.R.S. 2020; § 31-30-
1131(1) & (1.5), C.R.S. 2020. Other times, it has used neither word
although its intended meaning seems to have been the same. See,
e.g., § 13-71-134(1), C.R.S. 2020 (prohibiting employers from
“depriv[ing] an employed juror of employment or any incidents or
benefits thereof” based on the employee’s juror service).
9
employees, as compensation paid after an employee’s “termination
. . . from a particular employment position.” Id. In that statute, the
legislature made clear its intent to address termination from a
particular position, whereas in the Lawful Activities Statute it made
clear its intent to address termination from employment altogether.
¶ 18 Third, we look to the context in which the statutory words
appear. The title of the statute is “[u]nlawful prohibition of legal
activities as a condition of employment,” suggesting that the
legislature’s primary focus was on restrictions employers might
impose as a condition of maintaining employment — not on actions
that might result in an employee’s demotion from one position to
another while still remaining employed. See § 24-34-402.5; see
also Frazier v. People, 90 P.3d 807, 811 (Colo. 2004) (“Although
the title of a statute is not dispositive of legislative intent, it is a
useful aid in construing a statute.”). The statute’s exceptions for
“restrictions” that relate to bona fide occupational requirements,
employment activities and responsibilities, and conflicts of interest
reinforce this understanding. See § 24-34-402.5(1)(a)-(b).
¶ 19 Fourth, we are mindful that, in construing a statute, “[w]e do
not add words to the statute or subtract words from it.” Turbyne v.
10
People, 151 P.3d 563, 567 (Colo. 2007). Had the legislature
intended to include demotions or other adverse employment actions
within the scope of the statute, it could have said so, as it has in
other employment statutes. See, e.g., § 24-34-402(1)(a) (making it
unlawful to “refuse to hire, to discharge, to promote or demote, to
harass during the course of employment, or to discriminate in
matters of compensation, terms, conditions, or privileges of
employment” against any employee because of that employee’s
protected status). Because it did not, “we cannot supply the
missing language and must respect the legislature’s choice of
language.” Turbyne, 151 P.3d at 568.
¶ 20 Finally, while the Lawful Activities Statute is a remedial
statute that should be interpreted broadly to achieve its objective,
Watson v. Pub. Serv. Co., 207 P.3d 860, 864 (Colo. App. 2008), even
a remedial statute cannot be read “more broadly than its language
and the statutory scheme reasonably permit,” USA Tax Law Ctr.,
Inc. v. Office Warehouse Wholesale, LLC, 160 P.3d 428, 434 (Colo.
App. 2007) (citation omitted). Butler cites cases where other state
courts broadly applied common law public policy claims to extend
to demotion as well as discharge. See Hill v. State, 448 P.3d 457,
11
467-68 (Kan. 2019); Trosper v. Bag ‘N Save, 734 N.W.2d 704, 711-
12 (Neb. 2007). But when, as here, we are reviewing statutory
claims, we are confined by the language in the statute. See
Turbyne, 151 P.3d at 567-68.
¶ 21 Accordingly, we conclude that the Lawful Activities Statute
does not apply to the demotion of an employee to another position
for the same employer. And, because Butler alleges that he was
demoted — and does not allege that he was discharged (or even
constructively discharged) — from his employment with the County,
the trial court didn’t err in dismissing this claim.
C. Freedom of Legislative and Judicial Access Act
¶ 22 The parties dispute whether the Access Act protects an
employee who testifies as a witness in a court proceeding upon
being called by one of the parties or counsel to the proceeding but
without an order, subpoena, or other formal court-issued request.
We conclude that it does.
¶ 23 The Access Act provides, in relevant part, that
[i]t is unlawful for any person to adopt or
enforce any rule, regulation, or policy
forbidding or preventing any of its employees
. . . from, or to take any action against its
employees . . . solely for, testifying before a
12
committee of the general assembly or a court of
law or speaking to a member of the general
assembly at the request of such committee,
court, or member regarding any action, policy,
rule, regulation, practice, or procedure of any
person or regarding any grievance relating
thereto.
§ 8-2.5-101(1)(a) (emphases added). This prohibition, however,
does not apply to testimony that discloses confidential, proprietary,
or otherwise privileged information. § 8-2.5-101(1)(b). The statute
defines “persons” broadly to include counties as well as other
governmental and business entities, officers and agents of such
entities, and individuals. § 8-2.5-101(4). It also creates a private
right of action for employees who are injured by a violation of its
provisions. § 8-2.5-101(2)(a).
¶ 24 “This statute clearly expresses public policy regarding
employees’ responsibilities as citizens to honor requests for
testimony from courts and from committees and members of the
General Assembly.” Slaughter v. John Elway Dodge
Sw./AutoNation, 107 P.3d 1165, 1168 (Colo. App. 2005). It also
clearly expresses public policy regarding an employee’s right to be
free from adverse employment action solely for fulfilling those
responsibilities. Id.13
¶ 25 An employee must satisfy four elements to bring a retaliation
claim under the Access Act: (1) the employee testified before a
legislative committee or a court of law or spoke to a member of the
legislature at the committee’s, court’s, or member’s request; (2) the
testimony or conversation was about an action, policy, rule,
regulation, practice, or procedure or a grievance relating thereto;
(3) the testimony or conversation didn’t disclose any confidential,
proprietary, or otherwise privileged information; and (4) the
employer took action against the employee solely because of that
testimony or conversation.
¶ 26 The parties’ dispute in this case centers on the first element —
specifically, what it means to testify “at the request of . . . [a] court.”
We conclude that this language is ambiguous.
¶ 27 It’s unclear exactly what the legislature intended when it used
the term “request” with respect to a “court.” The statute doesn’t
define either term. Section 2-4-401(2), C.R.S. 2020, defines “court”
for purposes of state statutes to mean “a court of record.” Other
authorities suggest that “court” has frequently — but not always —
been viewed as synonymous with “judge” or “judicial officer.” See,
e.g., C.R.C.P. 107(a)(6) (defining “court” for purposes of the rule on
14
contempt sanctions as “any judge, magistrate, commissioner,
referee, or a master while performing official duties”); Fed. R. Crim.
P. 1(b)(2)-(3) (defining “court” for purposes of the Federal Rules of
Criminal Procedure as a federal justice, judge, or magistrate);
Matter of Ridgeway, 973 F.3d 421, 426 (5th Cir. 2020) (“[T]he term
court is synonymous with the judge or judges who sit on a
tribunal.”); Black’s Law Dictionary (11th ed. 2019) (defining “court”
as “[a] tribunal constituted to administer justice,” “[t]he judge or
judges who sit on such a tribunal,” or the place where justice is
administered). But see Gruner v. Moore, 6 Colo. 526, 529 (1883)
(concluding the term “court” in a particular statute wasn’t
synonymous with “judge”); Nat’l Home Ins. Co. v. Commonwealth,
444 S.E.2d 711, 714 (Va. 1994) (concluding the phrase “court of
competent jurisdiction” in a statute was ambiguous).
¶ 28 Assuming, then, that the term “court” in the Access Act means
a judicial officer, we turn to the term “request.” The statute
concerns a court’s “request” for a witness’s testimony — a verb that
ordinarily means “the act or an instance of asking for something.”
Merriam-Webster Dictionary, https://perma.cc/X566-M75Y; see
15
also Lutz v. Indus. Claim Appeals Office, 24 P.3d 29, 31 (Colo. App.
2000) (applying a similar definition of “request”).
¶ 29 However, judicial officers don’t ordinarily ask witnesses to
testify. The County suggests that “[a] court requests the presence
of an individual through a court order, subpoena, or pursuant to
CRE 614.” But judges, magistrates, and other judicial officers
rarely use these tools to solicit a witness’s testimony — and for good
reason, as they must take “great care to insure that [they] do[] not
become . . . advocate[s].” People v. Rodriguez, 209 P.3d 1151, 1162
(Colo. App. 2008) (quoting People v. Adler, 629 P.2d 569, 573 (Colo.
1981)), aff’d, 238 P.3d 1283 (Colo. 2010).
¶ 30 Thus, in practice, judicial officers don’t often enter orders
requiring witnesses to testify unless a party or witness raises an
objection (such as an assertion of a privilege or right against
testifying or a challenge to a subpoena) that would preclude the
testimony and the judicial officer overrules the objection. See, e.g.,
Hartmann v. Nordin, 147 P.3d 43, 52-53 (Colo. 2006); People v. Ray,
2018 COA 36, ¶¶ 3-8. Judicial officers also don’t sign subpoenas,
which are issued by court clerks or, more frequently, by attorneys.
See C.R.C.P. 45(a)(2) (requiring a clerk to issue a blank subpoena
16
upon request and permitting an attorney who has appeared in a
case to issue a subpoena “as an officer of the court”); see also, e.g.,
Fed. R. Civ. P. 45 advisory committee’s note to 1991 amendments
(explaining that the comparable federal rule has evolved over time
such that subpoenas initially were issued by court order, then by
court clerks in blank, and ultimately by attorneys themselves to
avoid the delay and expense caused by the need to secure forms
from a clerk). And, while judicial officers may call or question
witnesses under CRE 614, such actions (particularly calling
witnesses) are relatively rare and “subject to challenge for partiality”
due to concerns of “overintervention and courts becoming advocates
themselves.” Medina v. People, 114 P.3d 845, 861-62 (Colo. 2005)
(Coats, J., concurring in the judgment only) (citing Adler, 629 P.2d
at 573); see also 29 Victor J. Gold, Federal Practice & Procedure:
Federal Rules of Evidence § 6234, Westlaw (2d ed. database
updated Oct. 2020) (cautioning that a court’s authority under the
comparable federal rule “should be employed sparingly” as it
“encroaches upon the powers of the adversaries and risks the
appearance of judicial bias”).
17
¶ 31 Instead, it is the parties and their counsel who solicit
witnesses and witness testimony in court proceedings. For their
part, while judicial officers generally don’t solicit witnesses, they do
have “broad discretion to control the manner in which witnesses
offer testimony.” People v. Gutierrez, 2018 CO 75, ¶ 11. Thus, for
instance, judges may issue rulings allowing or precluding a
witness’s testimony. See, e.g., Erskine v. Beim, 197 P.3d 225, 226
(Colo. App. 2008) (reviewing order striking expert witnesses);
Williams v. Cont’l Airlines, Inc., 943 P.2d 10, 19-20 (Colo. App.
1996) (reviewing order striking witnesses due to insufficient
disclosures); see generally CRE 611(a) (“The court shall exercise
reasonable control over the mode and order of interrogating
witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the
truth, (2) avoid needless consumption of time, and (3) protect
witnesses from harassment or undue embarrassment.”).
¶ 32 These considerations render the legislature’s use of the phrase
“at the request of . . . [a] court” ambiguous. Accordingly, we turn to
the legislative history. See McCoy, ¶ 38.
18
¶ 33 As originally introduced, the bill didn’t include the “at the
request of” phrase. H.B. 97-1224, 61st Gen. Assemb., 1st Reg.
Sess. (Colo. 1997) (original bill as introduced in the House). Some
legislators expressed concerns about potential abuse by
“unscrupulous” employees, who could demand time off work every
week or in a large group to go to the legislature or could talk with a
legislator or testify before the legislature about “any old matter” for
the sole purpose of insulating themselves from adverse employment
action. See Hearings on H.B. 97-1224 before the H. State Affairs
Comm., 61st Gen. Assemb., 1st Reg. Sess. (Feb. 6, 1997);
2d Reading on H.B. 97-1224 before the H., 61st Gen. Assemb., 1st
Reg. Sess. (Feb. 18, 1997). Legislators agreed to add the “at the
request of” phrase to curb such abuses, noting that with this
change employees couldn’t leave work to come to the legislature
unless a legislator requested it. See 2d Reading on H.B. 97-1224
before the S., 61st Gen. Assemb., 1st Reg. Sess. (Mar. 27, 1997); H.
Concurrence to S. Amendments, H.B. 97-1224, 61st Gen. Assemb.,
1st Reg. Sess. (Apr. 8, 1997); H. Adoption of Conf. Comm. Report,
61st Gen. Assemb., 1st Reg. Sess. (Apr. 23, 1997).
19
¶ 34 This history shows that the legislature included the “at the
request of such committee, court, or member” phrase in the Access
Act to ensure that employees could invoke the statute’s protections
if — and only if — they had a legitimate reason to go to the
legislature or the court. Although the legislative discussions
focused on participation in legislative proceedings, it’s clear that the
legislature intended the same limited protections to be available to
employees who participated in court proceedings. Yet the
terminology the legislature used — a single phrase the drafters
inserted to apply to both legislative and judicial proceedings — is
consistent with the processes employed by legislators and legislative
committees but not necessarily with those employed by the courts.
¶ 35 We are mindful that, “when construing a statute, courts must
not follow [a] statutory construction that leads to an absurd result”
that would be “inconsistent with the purposes of the legislation.”
Town of Erie v. Eason, 18 P.3d 1271, 1276 (Colo. 2001); see also
Barnhart v. Am. Furniture Warehouse Co., 2013 COA 158, ¶ 14 (“[I]f
the literal import of the text of an act is inconsistent with the
legislative meaning or intent, or such interpretation leads to absurd
results, the words of the statute will be construed to agree with the
20
intention of the legislature.” (quoting 2A Norman J. Singer & J.D.
Shambie Singer, Statutes and Statutory Construction § 46:7, at
253-57 (7th ed. 2009))).
¶ 36 Here, affording statutory protections to court witnesses only
when a judicial officer formally requested their testimony by
entering a court order, issuing a subpoena, or calling or questioning
them as witnesses under CRE 614 would lead to an absurd result
not in accord with the legislative intent. As we have explained,
judicial officers generally don’t enter orders requiring a witness’s
testimony unless they are overruling a specific objection; they don’t
issue subpoenas; and they only occasionally question and even
more rarely call a witness under CRE 614. And any interpretation
that would afford employees protection only when a judicial officer
happened to rule on a procedural objection to their testimony or to
pose a question to them while they were on the stand would “exalt
form over substance without advancing any public policy interest,
and would lead to an absurd and illogical result.” Abrahamson v.
City of Montrose, 77 P.3d 819, 823 (Colo. App. 2003) (quoting Emps.
Ins. v. RREEF USA Fund-II (Colo.), Inc., 805 P.2d 1186, 1188 (Colo.
App. 1991)).
21
¶ 37 We therefore interpret the statutory phrase “at the request of
. . . [a] court” to apply to court proceedings in a manner comparable
to its application in legislative proceedings: to preclude protected
status for employees who attempt to sit in on or testify in a court
proceeding they have no connection with but to allow it where a
party or attorney calls the employee to testify as a witness in a
court proceeding and a judicial officer allows the testimony. In
addition to effectuating the legislative intent — which is our primary
purpose in statutory interpretation, McCoy, ¶ 37 — this
interpretation recognizes the different roles that parties, their
counsel, and judicial officers serve in court proceedings; is
consistent with evidentiary rules, which permit witnesses to testify
in court proceedings only if they have personal knowledge about
relevant matters, see CRE 402, 602; and broadly construes the
Access Act as a remedial statute, see Watson, 207 P.3d at 864.
¶ 38 We also reject the County’s argument that a witness must be
subpoenaed, rather than appear voluntarily, to fall within the
statute’s protection. In another context, our supreme court has
concluded that “[w]here a subpoena is required, the legislature
explicitly identifies that requirement.” People v. Yascavage, 101
22
P.3d 1090, 1095 (Colo. 2004) (interpreting “legally summoned” in
section 18-8-707(1)(b), C.R.S. 2020, as not requiring a subpoena).
We conclude the same is true here, particularly because the term
“request” in section 8-2.5-101(1)(a) doesn’t suggest any action as
formal or mandatory as a subpoena. Indeed, a separate subsection
of the statute makes it unlawful to intimidate or take action against
a legislative witness regardless of whether the witness testified
“voluntarily or pursuant to a subpoena,” § 8-2.5-101(1.5)(a), (b)(I),
suggesting that the legislature knew how to create a subpoena
requirement if it had wanted to.4 Also, as we have explained,
subpoenas are usually issued by attorneys, not by judicial officers
or court clerks.5 And, finally, we disagree that Slaughter suggests
4 We do not read the reference to subpoenas in one subsection of
the statute but not the other as suggesting that subpoenas may be
required under section 8-2.5-101(1)(a), C.R.S. 2020, although they
are not required under section 8-2.5-101(1.5)(a). The reference to
subpoenas in the latter subsection makes sense because one of the
enumerated unlawful acts in that subsection is intimidating
legislative witnesses to avoid “legal process summoning” their
testimony. § 8-2.5-101(1.5)(a)(I)(D). So, without the clarification
provided by section 8-2.5-101(1.5)(b)(I), that entire subsection
could’ve been interpreted as requiring that the witness be under a
subpoena or other legal process.
5And, to the extent that attorneys sign subpoenas as “officers of the
court,” C.R.C.P. 45(a)(2), it seems attorneys act equally as officers of
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an employee’s testimony must be involuntary to be protected. The
division in that case held that an employee’s acts of filing a lawsuit
and seeking a restraining order against her employer weren’t
protected — not because those acts were voluntary but because the
statutory language addresses only requests for testimony and not
filing of legal proceedings. 107 P.3d at 1168-69.
¶ 39 Applying the standard we have adopted today, we conclude
that Butler created a triable issue as to the first element of his
Access Act claim by presenting evidence that he was called by a
party or a party’s attorney and was permitted by a judicial officer to
testify as a witness in a court proceeding. We therefore conclude
that the trial court erred in granting summary judgment to the
County on this claim.
¶ 40 We decline the County’s invitation to affirm the entry of
summary judgment on the alternative basis that it didn’t demote
the court when they call or question witnesses. See generally
People v. Selby, 156 Colo. 17, 19, 396 P.2d 598, 599 (1964)
(“Lawyers should ever remember that it is their duty to act with
dignity, restraint and fairness in the hallowed process of seeking
justice through our judicial system. Those who forget, or
deliberately violate, this injunction violate their oath and obligation
as lawyers and officers of the Court.”).
24
Butler solely due to the fact that he testified in court but also
because he exhibited poor managerial judgment and allowed his
family dispute to disrupt the workplace. See Hoffler v. Colo. Dep’t of
Corr., 27 P.3d 371, 376 n.5 (Colo. 2001) (a disciplinary action isn’t
taken “solely” because of an employee’s testimony if it’s based on
the fact that the employee lied during that testimony). We also
decline Butler’s invitation to determine that he established each of
the four elements of his Access Act claim as a matter of law. Those
are factual issues that we cannot resolve on the summary judgment
record before us.
¶ 41 For these reasons, we reverse the trial court’s entry of
summary judgment on the Access Act claim and remand for further
proceedings on that claim.
III. Conclusion
¶ 42 We reverse the trial court’s entry of summary judgment on
Butler’s Access Act claim and remand the case for further
proceedings on that claim. We affirm the judgment in all other
respects.
JUDGE TERRY and JUDGE DUNN concur.
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