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Breaking: Amendment 41 Deal Cut

by: Colorado Pols

Tue Mar 13, 2007 at 08:08:10 AM MDT


( - promoted by Colorado Pols)

Rocky:

Lawmakers have reached a deal on controversial legislation that implements an ethics measure approved by voters last fall.
The compromise calls for Coloradans this fall to vote on the proposed bill, basically asking them, "Is that what you meant when you voted for Amendment 41?" said House Minority Leader Mike May.

The Parker Republican played a key role in brokering the deal over House Bill 1304, which is to be debated on the floor this morning.

The bill will be amended to include an election in the fall, May said.

The bill defines terms in Amendment 41, making it clear, for example, that the children of government workers are eligible for scholarships.

Critics of HB 1304 - which had been expected to die in the Senate until the compromise was reached - said the legislation rewrote Amendment 41 to fix its problems, which is not allowed under the constitution. A companion measure asks the Colorado Supreme Court whether the legislation is constitutional.

May said if the court comes back and says the legislation is unconstitutional, there would be no election in the fall. But if the court declines to take up the issue or determines that the bill is constitutional, then the election would proceed.

Today's original Amendment 41 post "Amendment 41 Injunction Requested" is now located below the fold. That's what we in the business call the "news cycle" for you.
Colorado Pols :: Breaking: Amendment 41 Deal Cut
Original post: Amendment 41 Injunction Requested

In a move certain to make some of you happy, the Rocky Mountain News reports this morning that the legal challenge seeking Amendment 41's whimpering and unceremonious death is now underway.

A group of Coloradans challenging a new ethics measure asked a court Monday to halt its enforcement until their lawsuit is heard.

The motion for a preliminary injunction against Amendment 41 was no surprise. The question is whether the court will act on it before the legislature votes on two bills related to the measure or adjourns May 9.

The suit against Amendment 41, launched in February, and the motion for the injunction were filed by former Supreme Court Justice Jean Dubrofsky [sic -- Pols] and attorney Doug Friednash.

Their suit in Denver District Court says the measure is unconstitutional because it has a "chilling" effect on free speech and association.

"Overly broad and vague restrictions such as those imposed by Amendment 41 must be challenged," Dubrofsky said in a statement.

Jenny Flanagan, director of Colorado Common Cause, which helped put Amendment 41 on the ballot, said "wild interpretations of the ethics law are not consistent with the measure's language" and called on lawmakers to support HB 1304.

New plaintiffs in the suit, according to a press release, include Rep. Ann McGihon (D) and ubiquitous Gold Dome lobbyist Danny Williams.
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Breaking: Amendment 41 Deal Cut | 41 comments
Interesting Approach
Going for the injunction based on the First Amendment?  It might just get them the injunction they desperately need.

It also might just sink Polis even further: "Judge rules Amendment 41 in violation of the First Amendment."

win-win-lose
One nice thing about going straight to court is that it gives two ways to "win."  It's pretty basic doctrine that if a statute can be interpreted two ways, but on the broader interpretation it would be unconstitutional, the court will interpret it the narrow way.  Indeed, courts have been known to use this rule as an excuse to interpret a statute more narrowly than they have to just to keep it constitutional.  The plaintiffs can win by getting an injunction based on the apparent unconstitutionality of A.41 (making Polis and CC look bad), or they can "win" by having the court deny their request for an injunction but in the process adopting a narrow interpretation of A.41 (with the result that Polis and CC can come out looking pretty good).  Only if the court says the broad interpretation is constitutional do they lose (assuming their goal is just ot avoid absurd results, and I don't see Dubofsky acting as a stooge of Fitzegerald).  Of course, the damn thing says what is says so they just might lose.
[ Parent ]
Peter Blake provides useful clarifications
Peter Blake's column this morning clarifies a lot about the 41 issue.

Link is here:

http://www.rockymoun...

New insights for me include the fact that less than the required 2/3 of the legislators will support putting a constitutional amendment on the ballot to fix 41. So they have to go with a legislative amendment, which, I"m thinking, will be unconstitutional.

Also, the Denver District Court challenge is based on the idea that lobbyists can't provide information to legislators under 41 because it costs money to prepare and deliver that information. Legislators depend on lobbyists for background information, data and legal opinions and fixes, all of which cost money. The law suit says it is a violation of the First Amendment to ban communications between lobbyists and legislators.

Is this a good argument or a stretch. I'd say it's creative and should prevail in the courts.

[ Parent ]
Rocky blasts "The grand sham," HB 1304
The Rocky editorially opposed 41 before the election, and it says 41 must be approved by an amendment to the constitution.

Link is here:

http://www.rockymoun...

Key graphs from the editorial:

Lawmakers should reject this convoluted scheme and instead mend 41 the right way, by referring a constitutional amendment to the November 2008 ballot.

Instead, lawmakers have chosen a stealthy way to circumvent an actual amendment. If passed, House Joint Resolution 1019 would ask the Supreme Court if 41 can be defined by statute in ways that amount to amending important parts of it. Should the court say yes - and heaven help the rule of law if it does - House Bill 1304 would then spell out the changes as well as ask voters to OK those fixes with a separate ballot measure in November 2008.

The critical flaw: That ballot measure would not be a constitutional amendment.

Why the chicanery? Why not simply refer an amendment to the November 2008 ballot?

Perhaps lawmakers fear they can't get the necessary two-thirds votes there to refer a measure to voters. But speed is also clearly a motive. HB 1304 would let lawmakers remove the harshest provisions from Amendment 41 immediately, without having to wait 18 months.

[ Parent ]
Jared must fix 'Jared's law'
It's time for Jared and Common Cause to announce that they will do what it takes to put a constitutional amendment that will fix their flawed 41 on the ballot in the next statewide election. We don't need to go to the expense of a special statewide election to fix this, imho.
[ Parent ]
I don't believe anyone is talking about a special election.
The compromise announced yesterday would put the referred law to the voters in the 2008 general election, which is also the earliest time any new Common Cause-initiated measure could go to the ballot.
[ Parent ]
'08 is the soonest that anything, other than a TABOR issue, can go on the ballot
  As long as Colorado is going to be governed by referendum and initiative, we should go to the polls more frequently so that we can correct the errors of prior referenda and initiatives sooner. Perhaps every three months would be frequently enough.
  A-41 as well as the TABOR/A-23 train wreck underscore the need for more frequent voting on ballot questions.
[ Parent ]
what about
there can be a special election - but only to revoke any amendment or initiative? So all they could do is repeal 41 now and wait for 41 to try again?

Tom Tancredo Interview
[ Parent ]
I don't think so.
As that Queer Dude said, elections on initiatives or referenda may go to the ballot only during the biennial regular election, except for Tabor stuff.

See Colo. Constitution Article V, section 1(4).

[ Parent ]
I meant change the law to allow that
You are right at present all we can do is wait till '08 if the Supreme Court doesn't decide to ignore the wording in 41.

And we don't want special elections every other week.

But what if there could be a special election only to repeal something passed in the previous 4 years? So we would have a fast way to undo big mistakes?

Tom Tancredo Interview

[ Parent ]
Federal district court?
Sloppy reporting and editing by the Rocky.

Was this filed in Federal District Court? Is there a state Denver district court?

I"m no lawyer, and the editors assume I know what court this suit has been or will be filed in.

I don't see how a state court can rule an amendment to the state's constitution unconstitutional. But I can see how a federal court can rule Amendment 41 violates the First Amendment to the U.S. Constitution.

I would bet that at the federal level, Amendment 41 is unconstitutional limitation of free speech, but, then, the U.S. Supreme Court has approved the censorship required under McCain-Feingold. So there is a chance that Amendment 41 would be upheld in the federal courts, which would be wrong.

[ Parent ]
It was filed in Denver District Court, a state court
This new request for an injunction is simply part of the same state court case that these plaintiffs filed over a month ago.

State courts have as much power and duty to apply the federal constitutional as federal courts.  Indeed, state courts probably apply the federal constitution much more often than they apply the state constitution.  This case asks the state court to find that A.41 violates the federal constitution (just as the state courts found in the Amendment 2 litgation, for example).

[ Parent ]
Thanks
That should have been in the story, imho.
[ Parent ]
IMNAL
but what does the ability to pay off a politician or state employee have to do with free speech? Hopefully, that attempt fails big.


Sadly,based on a number of statements in other historical postings seem to indicate that this is more about Polis and less about trying to clean up gov.

I prefer the "u" in honour as it seems to be missing these days.
[ Parent ]
A strange deal.
It's difficult to understand exactly what the compromise entails, just reading from the article.  But, here is my initial stab:

The legislators would refer HB 1304, a proposed statute -- not a constitutional amendment, to the voters in 2008.  The voters could then vote on the proposed statute.....as a way of measuring whether they believe the statute is consistent with their intent in enacting A.41.

But, HB 1304 would first be sent to the Colorado Supreme Court to see if the court believes it's consistent with A.41.  If the court says no, the HB 1304 will not be sent to the voters in 2008.  But, if the court says yes the bill is constitutional or the court declines to say anything about it, the bill will be sent to the voters anyway (because the legislators are too chicken-shit to enact this bill even if it is constitutional??).

This compromise does not seem to make the lawsuit or request for injunction go away.  Those request immediate action to stop A.41, which is in effect right now.  I don't see how waiting until Fall 2008 will satisfy the plaintiffs.  So, the courts may still have to get involved in this debate regardless of this compromise.

That's what I read...
I wonder if even a Referendum that would lead to statute would stand vs. a challenge based on the wording of Amdt. 41, but I think in conjunction with the query to the Supreme Court of Colorado, it's a fair solution.

In the worst case of a late decision against by the court, the legislature could always come back for an emergency session to re-issue something in an Amendment.

In the meantime, you're right - the injunction is still a valid move.

"I have come to the conclusion that the making of laws is like the making of sausages-the less you know about the process the more you respect the result."  -- Anonymous IL State Rep. circa 1878

[ Parent ]
A referred statute may be subject to constitutional challenge..
.....just like any other statute, as your post implies.

So, if the supreme court declines to weigh in on this controversy, and the voters then enact this proposed statute, this statute could then be challenged in court as violative of A.41.  Yikes!  Of course, a court hearing such a challenge may find it relevant that the voters themselves enacted the statute (thus shedding light, perhaps, on their earlier intent in enacting A. 41).

Also, I don't know if an emergency session would be necessary in the event of an adverse decision (on the validity of the proposed statute) by the supreme court.  A new constitutional amendment wouldn't go on the ballot until Fall 2008.  The leg. could put something together in the next regular session.

[ Parent ]
Not wanting to take their medicine
I wish the legislators would just suck it and follow the will of the people.  I know most of the legislators don't like the idea of open and accountable government but it's not there choice any more.  This stalling tactic is the most transparent attempt to subvert the people's will I've ever seen!
What is the "will of the people"?
The various supporters of this measure have stated different things.

Lots of pro-41 folks have stated that they never intended this to affect lesser positions, or to affect scholarships, or...  Others like Jared Polis have pretty much stated that a truly free and accountable government means that all government employees must be free from influence.

So what exactly should the legislators implement?

"I have come to the conclusion that the making of laws is like the making of sausages-the less you know about the process the more you respect the result."  -- Anonymous IL State Rep. circa 1878

[ Parent ]
Voters supported language in 41, regardless of what supporters now say
What Jared and Common Cause say today has no bearing on what voters wanted. They voted for 41 as written, like it or not.

So why would the current bill call for a new statute when 41 says it can't be amended by legislators. Can it be amended by statute under the constitution, or is a new constitutional amendment needed?

Why not fix the constitution?

[ Parent ]
It boils down to whether the proposed statute "facilitates the operation" of A.41, or "limits or restricts" A.41.
The former is permitted by A.41; the latter is not.  Obviously, it's a matter of interpretation and opinion.  This compromise would allow, in some sense, the voters to decide this question........but only if the court doesn't first give a particular answer to this question.  If the court first decides that the statute is ok under A.41 (or declines to say anything at all), then the voters can decide they want the statute.  If the court decides that the statute is not ok under A.41, the proposed statute goes away and voters have no choice about whether they wish to enact the statute.

Only a constitutional amendment can amend the constitution, not a statute.  But, of course, the relevant question is whether the statute attempts to amend the constitution (i.e., the statute conflicts with the constitution).

[ Parent ]
Another thanks
for the clarification.
[ Parent ]
You're welcome

[ Parent ]
Personally...
It needs another amendment to fix it.  But, IANALAIDPOOTV (I Am Not A Lawyer, And I Don't Play One On TV).

At least by asking the Supreme Court to issue an opinion on the legality of this measure, they don't waste any more time on debating the issue.  If they court rules against the legislation, then we know it's back to the Amendment Drawing Board.

"I have come to the conclusion that the making of laws is like the making of sausages-the less you know about the process the more you respect the result."  -- Anonymous IL State Rep. circa 1878

[ Parent ]
Senate
Apparently this was a House only compromise.  Fitzgerald says she did not know about it until the House already had voted on, although she expects it to pass.  If so, a nice bit of manuevering by May and whomever else was behind it.
Which side is Fitz-Gerald on?
Fitz-Gerald has said the commission -- not lawmakers -- can best determine which situations go against Amendment 41's main provision against "violating public trust through private gain."

http://www.denverpos...

I'm curious to see if she votes for the "compromise" or not.

[ Parent ]
My guess
she and Groff hold off committing as long as possible while counting votes and seeing what, if anything, the courts do in the meantime.  She is on the side of making Polis and CC find a way to clean this up.
[ Parent ]
Sigh.....these legislators are putting the courts in tough positions.
If the legislators would have the guts to do something or refuse to do something, that would be clarifying in itself.  Instead, they are political animals who are afraid to take a stand.  And the courts are placed in the middle trying to settle the b/s.

(in case anyone wonders, I don't work for the courts.)

[ Parent ]
Tip o' the hat to Mike May
See, I can give credit to a Republican when it is due!

"Collective fear stimulates herd instinct and tends to produce ferocity toward those who are not regarded as members of the herd." -Bertrand Russell

I'm gonna need signature verification on this one parsing:)

[ Parent ]
The law is the law
You bozos voted for 41 (I voted against it). You made it the law. Now you want everyone to ignore the clear wording of what you voted for to fix your stupidity.

We are a nation of laws. If the people of this state pass an amendment and it is not unconstitutional, then we must follow it. And trying to get around it is trying to break the law.

If you don't like what a law will do - DON'T VOTE FOR IT! All this talk about how most people didn't realize what it would do is total BS - the blue book, newspaper articles, my blog - all listed out exactly what it would do.

I don't like 41. I voted against it. But I also think if we ignore the law that is a greater wrong than the people who will suffer under 41. So we live with it for 2 years and then repeal it in 08.

- dave

ps - yes that means Polis will have to run on the same ballot as the one repealing 41 and that will hurt him in the election. But that is just desserts.

Tom Tancredo Interview

Dave....
How many voters read the blue book? Or newspaper articles? Or blogs? (I know you're being facetious when you mention your blog...) I think the majority of voters pay attention to mailers and TV ads, and I can't think of a single one regarding A41. For that matter, I can't think of much discussion about it here at Cpols prior to the election, although I did take a break and didn't read it at all for the last week and a half prior to the election... maybe there was more about it then, but I bet it was still nothing like all the posting that's occurred since it passed.

Anyway, my point is, since there weren't many (any?) ads or mailers for or against A41, and since many, if not a majority, of voters don't do their homework, all they were left with was the ballot. And if you read the ballot, A41 sounded pretty good.

Now, if it's possible for the legislature to fix the amendment, and it sounds like it is, why don't we just let them do it and move on? No one is coming forth to say, "I voted for A41 because I believe that scholarships for the children of DMV clerks is unacceptably influencing state policy and lawmaking," so I think it's safe to say that the voters didn't intend to enact such a law.

If it is, in fact, illegal for the leg to "clarify" amendments then yes, you have a point. But if it's legal? Then there's nothing untoward going on.

"The fact that we Dems can't rebuild the house does not mean you bring back the [Republicans] who burned it down." - DavidThi808

[ Parent ]
There were plenty of editorials against 41
I think (can't remember for sure) I voted for 41, because I wanted to send a message to legislators that I don't trust them, having seen how lobbyists corrupt state legislators.

Voters knew what they were doing. They were sending a message. Forget the details and unintended consequences.

The idea that initiatives create more problems than poorly drafted laws is naive. Almost every bill enacted in state legislatures and Congress has unintended consequences, often costly ones.

That's why legislatures usually meet annually. They need the time to fix bad laws.

If you think legislators are smarter and write better bills than the people who put initiatives on the ballot, on average, I've  got a bridge I'll sell to you.

[ Parent ]
In other words you are saying
the voters are too stupid and/or lazy to know what they are voting on so just "fix" anything they pass? In that case, why even bother with elections - lets just have a benevolent dictatorship.

Tom Tancredo Interview
[ Parent ]
Continuous quality improvement
Continuous quality improvement was popularized in Japan in the 70s and 80s and in the U.S. in the 80s and 90s.

Putting an amendment to the state constitution on a statewide ballot that would "fix" 41 would validate the roles of voters rather than negates it.

I don't see how having voters amend 41 would constitute dictatorship. It just doesn't make sense to me.

[ Parent ]
I think you misunderstood me
My response was to people who said the voters did not understand 41 so it's fine to have a law that "corrects" it to match the will of the voters.

A new amendment that kills 41 and is sensible is I think the proper solution. It's too bad that people will have to suffer for 2 years until it can be fixed.

And I am worried that they cannot get enough votes in the leg to craft a better amendment - the last thing we need is another Polis/CC written ammendment.

- dave

Tom Tancredo Interview

[ Parent ]
I know you're smarter than that
and you're obviously impassioned about the issue which may be why you're missing the point, so I'll won't write my initial response and clarify - what I'm saying is that there was little effective campaigning against A41 and that's a big reason why it passed.

Voters in general just aren't that proactive when it comes to the issues. Many ignore the editorial pages because of perceived bias one way or the other (Post is liberal, News is conservative); many don't read the blue book because they (feel they) don't have the time to read it; and most voters don't blog which we can deduce from the traffic here. They're passive, which is why active campaigning is the most important factor is their success or failure. A41 opponents just didn't make the effort.

And again, if you're point is that the law is the law, and the law allows for the lege to fix A41, then what's the problem? (If it's proven to be unconstitutional, then that's a problem all right, but if not?)

"The fact that we Dems can't rebuild the house does not mean you bring back the [Republicans] who burned it down." - DavidThi808

[ Parent ]
It's not illegal to "clarify" the amendment.
In fact, A.41 expressly calls for legislation that facilitates its operation.  But, A.41 forbids legislation that would limit or restrict the amendment's provisions.  So therein lies the debate.  Does the proposed legislation do the former or the latter?

Also, some supporters of A.41 do claim that they intended to enact the extreme prohibitions that you describe.  It's hard to know what everyone intended, but the plain language of the law is typically the best evidence of the voters' intent.

[ Parent ]
I voted against Amend. 41 also
It was clear that it was going to have negative impacts. Supporters today say it was just the fear created by opponents of the measure. Well, the fire organizations and police organizations taking a stand against 41 is what convinced me that something was wrong with it.

In my personal opinion, this whole fiasco is proof of why voter initiatives are a bad idea. Because I feel that the harm done by voter initiatives should be looked at more closely, I am with David on this one. Let everyone see the glaring errors they made in voting for this measure. The information was there for everyone to see. If they decided instead to listen to ads to tell them what the measure meant... well that is their problem. Maybe a discussion will start about how easily people are convinced that initiatives mean one thing when in fact they mean another. I think this is what happened with TABOR also.

[ Parent ]
I agree
Alll the proponents ever talked about was preventing lobbyists from providing 'perks' to legislators.  And the problem is, the language not only permits, but actually prescribes much more thant that - much of what is now being decried as unintended consequences.

While the focus lately has been on scholarships and nobel prizes, there are many more problems.  If you don't actually change the language in the amendment, you are left, in any 'claryifing' statute, with trying to list every event that the amendment 'did not intend', but which the language in the amendment would effect.  It is not possible to do that.  You have the recent case where people taking donations to assist a public employee or a member of his/her family in a medical emergency.  Some of those donations might be prevented by A41.  Is that something that is going to be listed in clarifying statute?

And how many other unique situations will arise, that folks will say - "gee we didn't mean that", but that will be prevented by A41 because it did not get listed in the clarifying statute.

If the legislature can send the statute for a vote of approval by the voters, why not just re-write the amendment with language that does what the proponents claim was their intent, and be done with this.

[ Parent ]
Yes, the law is the law and attempting to nullify it legislatively sends the wrong message
Dave is right on.

What the legislators are showing by attempting to avoid 41 is that they have some larceny in their hearts.

No surprise, but disappointing nonetheless.

[ Parent ]
Breaking: Amendment 41 Deal Cut | 41 comments
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