2021 COA 32
Colo. Ct. App.2021Background
- Butler was promoted to district supervisor in San Miguel County with a one-year probation condition and a requirement to avoid negative workplace interactions with Jeremy Spor (his former brother-in-law).
- Butler voluntarily attended and testified at a parenting-time hearing at his sister-in-law’s and her attorney’s request; he was not subpoenaed and testified about on-call Road & Bridge scheduling and that he did not supervise Spor.
- After the hearing, Spor complained to the County; the County investigated and demoted Butler to his prior nonmanagerial position with reduced pay, citing poor managerial judgment and workplace disruption.
- Butler sued under Colorado’s Lawful Activities Statute (§ 24-34-402.5) and the Freedom of Legislative and Judicial Access Act (§ 8-2.5-101), alleging the demotion violated both statutes.
- The trial court dismissed the Lawful Activities claim (concluding the statute covers only terminations) and granted summary judgment to the County on the Access Act claim (concluding Butler’s testimony was not "at the request of . . . a court").
- The Court of Appeals affirmed dismissal of the Lawful Activities claim, reversed summary judgment on the Access Act claim, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Lawful Activities Statute’s ban on "terminat[ing] the employment of any employee" cover demotions? | Butler: statute protects employees from adverse actions like demotion based on lawful off-duty conduct. | County: "terminate" means end the employment relationship; demotion is not a termination. | The statute unambiguously targets termination (end of employment) and does not cover demotions; dismissal affirmed. |
| Does the Access Act protect an employee who is called by a party (or counsel) and permitted by the court to testify voluntarily (no subpoena or formal court request)? | Butler: Yes—statute should protect testimony allowed in court even if the testimony was solicited by a party and the witness appeared voluntarily. | County: Protection applies only when testimony is at the court’s formal request (e.g., court order, subpoena, or judge calling the witness). | The phrase "at the request of . . . a court" is ambiguous; interpreted to protect witnesses who are called by a party or counsel and whose testimony is permitted by a judicial officer; summary judgment for County reversed and claim remanded. |
Key Cases Cited
- Butler v. Bd. of Cnty. Comm’rs, 920 F.3d 651 (10th Cir. 2019) (prior federal litigation involving related First Amendment and lawful-activities claims)
- Turbyne v. People, 151 P.3d 563 (Colo. 2007) (court may not add or subtract statutory language; respect legislature’s wording)
- Slaughter v. John Elway Dodge Sw./AutoNation, 107 P.3d 1165 (Colo. App. 2005) (Access Act reflects public policy protecting legislative and judicial testimony)
- People v. Yascavage, 101 P.3d 1090 (Colo. 2004) (where a subpoena is required the legislature says so; absence of such language suggests no subpoena requirement)
- Watson v. Pub. Serv. Co., 207 P.3d 860 (Colo. App. 2008) (remedial statutes should be construed broadly but within their language)
- People v. Rodriguez, 209 P.3d 1151 (Colo. App. 2008) (judicial officers must avoid becoming advocates; courts rarely solicit witnesses)