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February 05, 2007 04:33 PM UTC

Calling In The Grownups On Amendment 41

  • by: Colorado Pols

As the Denver Post reports:

House Speaker Andrew Romanoff said Sunday he will ask the legislature to seek Colorado Supreme Court guidance on a bill being drafted to ensure Amendment 41 doesn’t ban things such as scholarships for government workers’ children.

It’s a somewhat unusual move, Romanoff said, but one that would make it easier for lawmakers to figure out the best approach for resolving the problems with the constitutional amendment, which even its drafters admit is flawed.

“We’ve been too paralyzed here,” said Romanoff, D-Denver. “The problem is we’re on sort of uncertain constitutional ground. The proponents tell us we are fully within our power to pass a statute (clarifying the amendment’s reach). And they may be right.

“But I think we need to ask. The only folks who can answer the question are the folks on the Supreme Court.”


43 thoughts on “Calling In The Grownups On Amendment 41

    1. I don’t think Speaker Romanoff is attempting to save Jared Polis, but rather trying to fix the over-reaching constitutional amendment.

      Hey Steve, did you campaign in favor of this governmental entrenchment? It seems to me, to be somewhat contradicting of your ideology.

    2. Make them job contracts instead of scholarships. Make the kids work for the money.

      Where’s the creativity on the part of scholarship grantors?

      1. That is the first creative way around the bill that I have heard. I do not know whether to applause or be pissed. Maybe both.

        Sadly, workfare appears to be out of favor in this day and age. Funny thing, is that I hear so many republicans knock FDR for welfare, when he actually gave us workfare.

      2. but that is a horrible idea. Making it a job contract would mean a wonderful scholarship organization would have to deal with a whole host of different tax issues. One such scholarship organization in Colorado has already filed suit in order to avoid any problems for them or the recipients of their scholarship.

        Also, most scholarships are not just given away to lazy losers (although some are). Kids DO work hard by being involved in high school and getting good grades. I remember my high school years…if you count the hours I spent in sports, drama, school, volunteering, etc. I easily had a 50+ hour work week every week. None of that made me entitled to any scholarships, but it was nice to be recognized for all I had done by receiving some money for college.

  1. …..ask a bunch of judges who sit on the Court of Last Resort whether something is constitutional or not!
      I suspect that Joan Fitz-Gerald is smart enough to know that she can only rub Jared Polis’ face in the A-41 excrement for so long before she helps fix the problem.
      She’ll still be able to take credit for fixing the problem which he created.

  2. And, is it constitutional?  I’m confident AR got advice on this, plus his own lawyering education.  Nevertheless, I must ask.

    What is the format?  Do you ask the judges to take an afternoon off and join a committee?  Ask them to please put together a joint essay?  Go over to the Red Room mezzenine and have a few drafts together?

    1. The legislature and/or governor may ask the Court to opine on specific questions, and Court may agree to do so.  It’s happened in the past, but it’s relatively rare.

      CO Constitution, Art. VI, Sec. 3:

      The supreme court shall give its opinion upon important questions upon solemn occasions when required by the governor, the senate, or the house of representatives; and all such opinions shall be published in connection with the reported decision of said court.

    2. To answer your other questions:  The legislature drafts 1 or more questions (interrogatories), usually related to the constitutionality of a particular proposed bill.  The Court then decides whether to answer the questions.  If so, the Court takes briefing from the legislature and other interested parties as the Court sees fit.  In relatively short order (given the rushed nature of interrogatories), the Court issues a written opinion delivering the answers.  Like any other opinion, there may be dissents or concurrences.

      1. Wow.  Something I actually *like* about the Colorado State Constitution.

        This gets to the point of the matter…  Given that the AG and a decent chunk of the Legislature doesn’t want to touch Amdt. 41 with a 14,000 foot pole, a “can we legally do this” question to the state court is a great idea.

        1. so I’m told, of having the most new laws declared unconstitutional, this approach is wise.  Let’s hope the questions are smart and the Supremes agree to opine.

          1. First, to the others who thanked me above, you’re very welcome.

            Second, the Supreme Court has to be very careful about taking such questions.  Usually, a constitutional challenge to a law will be heard ONLY after the law has been passed and ONLY if the challenge is brought by someone actually affected by the law……for all sorts of a good reasons (potential mootness being one . . . if the bill is never passed into law, the Court’s opinion on the law’s constitutionality is superfluous ).  Thus, the Court will resist a practice that allows the exception to swallow the rule. 

            Third, the Court may view this as attempt by the legislature to avoid the difficult constitutional and political questions, and instead to punt them to the Court……thus, placing the Court in an uncomfortable position at the center of a political storm.  The legislature has a duty to pass only constitutional laws and to decide in the first instance whether the law is constitutional.  Some may say that the legislature is shirking this obligation by asking the Court to take it from them.

            1. If I didn’t think better of the Amendment’s supporters, I’d have suspected that this was a trap designed to oust or embarass sitting legislators; vote to limit some of the “unintended consequences” and be branded a supporter of inethical practices.

              I think the Legislature has cover here because the AG has already indicated his legal opinion…  We don’t need endless reruns of the AG suing his own state – better to forestall the financial layout and ask the Court in advance.

  3. First, sounds like Romie has picked the right move. Kudos.

    Second, and I apologize if this has been discussed, but I’ve been offline for a week and there are thousands of comments …

    … but amid all the recriminations — Common Cause, Polis, voters — how come NO ONE in the press figured out the pitfalls of 41 last fall? It’s so obvious once Suthers points it out. What happened to that crack election coverage we’ve come to expect from “competing” dailies? Or did Ted Haggard, Beauprez-in-Mouth and vulnerable GOP majority stories swamp the political writers? Who was really asleep at the switch here?

    1. Some of the potential issues even made the Blue Book.  The papers discussed it, opponents discussed it.

      In the end, the voters decided that we were all doomsayers and ne’er-do-wells.

      I hope the Supreme Court counters Suthers’ arguments – and those being put forward by others in the Legislature, and indeed by me.  IANAL, but I don’t see them doing that; I think the best we can expect is that they issue an opinion that it violates some obscure interpretation of the U.S. Constitution.  Otherwise, it’s yet another off year with a referendum on the ballot (can we do that, or is that just for Budget resolutions?)

      1. That really should be changed.  As long as we’re stuck with the initiative process and as long as we’re using that process quite extensively, we should have annual elections on ballot questions so that we can correct the mistakes that are bound to occur (Amendment 41 being Exhibit A) sooner than waiting two full years.

        1. Is to reform I&R to make Constitutional Amendments much harder to pass – either a much larger signature requirement or a 2/3 vote.  If there isn’t a movement to do so by later this year, I’m thinking of dipping my feet a bit further into the political process myself.

          1. Dip, wade, dive and swim in the process! Its a hoot!

            The only way to get things done is get involved, and judging by your posts, you’re the kind of person who should be involved.

            1. I’ve long been appalled at how often we add stuff to the constitution.  The US Constitution should be our model, what, 18??? amenedments after the first 10 after 230 years?

          2. A simple majority or 2/3?

            I’m being partially facetious here, I grant you.  But, I do wonder about your answer.  I know, as a legal matter, that a simple majority would suffice, but would you accept merely that, given the content of your proposal?

            1. I don’t think I get a say in what passes an Initiative.  I might be able to write it to say “only takes effect if it passes by a 2/3 majority”, but I’m not sure if I can do that before the fact as it were…

              It would be part of the research.  If I were to do it, I’d make it a three-pronged Initiative (one subject, three prongs):
              1) Make passage of a simple law via Initiative a relatively easy thing to do.  (This part’s the one I’m not too sure about, but if the scope is limited, or I just lower signature count a bit, it might be the bone I have to throw to get it passed with that 2/3 majority. 😉  If I can’t make it work without scaring myself, this part drops…)
              2) Make passage of a supermajority law via Initiative the same as the current process.  This gives the voters a sense of permanency without the irrevocability/immutability of a TABOR or Amendment 41.
              3) Make passage of a Constitutional Amendment more difficult than the current process.

              There are other issues like the one you bring up that I’d have to consider – like the numerous amendments already made under I&R…  They shouldn’t get any special protection just because they fell before the change, but they shouldn’t be the loophole to sneak in new Amendments under the table, either.

              1. First off, I agree with your sentiment.  Amending the constitution should be more difficult than it is now.

                Now to the dumb questions:  What is the difference, in your view and usage, between a “simple law” and a “supermajority law”?  And what difference in process between the two do you envision?  While I’m at it, I guess I should ask what you see as the difference betweeen a “supermajority law” and a “Constitutional Amendment?”

                No need to answer unless you really want to.  I’m partially talking to myself with this post.  Bartender, another shot of….

                1. A “supermajority law” would be one that requires a 2/3 majority of the House and Senate to override.  The restrictions on such an Initiative measure passed into law would be that the Lege couldn’t change the section of the statues that the Initiative affected in any way that would alter the Initiative’s intent and/or operation, except through the use of a supermajority override.

                  This has the intent of the current I&R process WRT Constitutional Amendments, without the complete inviolability of an Amendment.  If someone were to pass a screwed-up law like Amdt. 41 appears to be, the Legislature could fix it if they could get the appropriate votes.  They still need to be careful not to piss off the voters, because the voters still have the (tougher to pass) Amendment option available if they disagree with the override.

                  A “simple law” is just a law.  The I&R process allows petitioners to submit laws to the voters, but because those laws can be overridden by a simple majority vote in the House and Senate (and Governor’s signature), most petitioners go the Amendment route to protect their issue from unwanted tampering or repealing.

                  A Constutional Amendment is just that – an amendment to the underlying law of the state.  The Constitution cannot be altered by legislative means (aside from a Referendum), and guides the government in all it does.  The problem is, things like Amdt. 23 and the minimum wage amendment don’t really belong in the Constitution; they’re laws that petitioners didn’t want repealed by an unfriendly Legislature.  Since the current process doesn’t make it harder to pass an Amendment, there’s little reason not to go that route.

                  1. What about a constitutional convention? I like your idea; I think people will give pause to future amendments if it was passed, but there is so much clutter now. Can a citizen bring about a constitutional amendment? By way of I&R, I mean.

                    1. I lived in NY for a long time; Constitutional Conventions scare me.  I&R allows for amendments now; I just propose to make it a bit harder, to give some incentive to move some of this crap into statute instead of the constitution.

          3. Because once you create the supermajority requirement, it will be that much harder to delete the stupid amendments that went in under the earlier requirements.  Witness TABOR, which resulted in the single-subject rule, which eliminated any chance at repealing TABOR.

            1. One of the things that needs to be worked out is how to grandfather the old amendments down to simple majority.  It makes the Initiative more complex, but it’s a necessary part of any successful Initiative along these lines.  I’d love to figure out how to encourage a move of those “older” amendments into statute, but I don’t see that happening.

          4. Just about everything that is screwing up effective, efficient government were citizen initiatives.  I know the arguments for the initiative route and don’t agree with the populist view.  I’d much rather have the legislature vet the issue with hearings and critical examination before it makes it to the ballot.  It would solve the constitutional amendment problem.

            1. Because I’ve seen what happens when you remove I&R completely…  You get New York – staid, one might even say ossified, with no motion or re-envigoration.

              I’m with Code Name V – governments should be afraid of their people (though not in the way he meant it…).  I&R has seriously bent our government, but it’s also done Good Things.  It provides minorities (and majorities) an extra path around sometimes unsympathetic legislators and governors.

  4. Let’s assume I work for the gov’t.  Are you telling me, that my three children cannot receive gifts from people, valued at over $50?  I don’t understand this … none of my children live with me, and my oldest has six children of her own … my two youngest haven’t lived with me in years (my youngest still lives with her Mom) … so, none of them can receive gifts, despite my “estrangement” from them?  I’m confused … and saddened by this … what do my kids have to do with any of this?

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