President (To Win Colorado)
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(D) Kamala Harris
(R) Donald Trump
80%↑
20%
CO-01 (Denver)
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(D) Diana DeGette*
(R) V. Archuleta
98%
2%
CO-02 (Boulder-ish)
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(D) Joe Neguse*
(R) Marshall Dawson
95%
5%
CO-03 (West & Southern CO)
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(R) Jeff Hurd
(D) Adam Frisch
52%↑
48%
CO-04 (Northeast-ish Colorado)
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(R) Lauren Boebert
(D) Trisha Calvarese
90%
10%
CO-05 (Colorado Springs)
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(R) Jeff Crank
(D) River Gassen
80%
20%
CO-06 (Aurora)
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(D) Jason Crow*
(R) John Fabbricatore
90%
10%
CO-07 (Jefferson County)
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(D) B. Pettersen
(R) Sergei Matveyuk
90%
10%
CO-08 (Northern Colo.)
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(D) Yadira Caraveo
(R) Gabe Evans
50%
50%
State Senate Majority
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DEMOCRATS
REPUBLICANS
80%
20%
State House Majority
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DEMOCRATS
REPUBLICANS
95%
5%
June 01, 2007 03:00 AM UTC
33 Comments
see comments in the Thursday open thread.
As noted there, judge refused to engage in ‘judicial legislation’ as the defense had advocated, in order to fix the clear and acknowledged ambiguity in the amendment:
“Ultimately, I conclude that the Government has not articulated a sufficient
justification for the challenged portions of Amendment 41. As tempting as it may be to
rewrite the language of this Amendment in the hopes that the will of the electorate of the
State of Colorado would be served, that function is not an appropriate function of the
judicial branch – it is a task best left to the voters of the State of Colorado.”
Love that paragraph.
Balls in your court now, Jared.
This is an injuction UNTIL a court time. IOW, it is a suspension, not a disolution. So, in the end, it may still be permitted.
Hopefully, instead, another re-write will happen that voters will again pass, and will do the job while not allowing all these wily republicans and dems to keep taking buy-outs from lobbyists. One of the things that I noticed was that the dems at the federal level rewrote a bunch of so-called tough laws but with LOADS of loopholes for themselves. It seems that no professional politician wants to prevent corruption; just the other parties corruption.
It will also be interesting to find out how the money flows during this interruption. I would think that a good reporter could have a LOT of fun. I know that I will be watching JFG’s money. I would not be surprised to see it more than double during this next quarter.
The lobbyist tax that was supposed to fix A41 was held up by the single subject rule a decision on appeal to the Colorado Supreme Court. If the appeal fails, nothing can go to the voters on this until Nov. 2008.
This case is unlikely to be pending that long.
Notice that Jason Dunn, the 12-year-old AG rep. on the title board, is the only one who voted to approve the proposed amendment. I wonder what that says about the AG’s view of Amend. 41……….
I’ve been following this Amendment 41 discussion for months. You have always been one of the more detailed commenters on this subject, and though I don’t always agree with your conclusions I respect your thorough approach. I suspect many people here would say the same.
Why is it that I never saw you disclose the fact that you work for one of the plaintiffs in the case against Amendment 41 until after this decision came out, and then only on the Colorado Confidential website? I’m not sure I trust what you’ve been telling us now. You appear to have had an undisclosed agenda this whole time.
I never presume that he, or anyone else who posts here, is entirely disinterested in the topics on which they post. Regardless, the posts should be evaluated on their merits. And I have found Oh-Willeke’s posts to have much merit. And I’ve never found them to be unduly slanted in discussing Amend. 41.
[DISCLOSURE: I have friends who are employees of both state and local governments and, thus, are potentially affected by Amend. 41.]
…is its very brief, almost cursory, discussion of the new Senate Bill. I don’t think the court persuasively explained why that legislation did not take care of many of the problems. Indeed, its analysis of this legislation was painfully short and not enlightening. However, I must say that, overall, the quality of the opinion was high.
As I’ve said before, I think there is a great amount of ambiguity in Amend. 41…..especially the disconnect between its prohibitions and its penalties. So,…..this ain’t over!
the foundation of the court’s dismissal of the SB 210 was the clause in Amend 41:
in no way shall such legislation limit or restrict the
provisions of this article or the powers herein granted.” (Emphasis supplied)
The court made a simple conclusion and didn’t justify further
Actually, the judge seemed to rule, in very brief fashion, that (a) SB 210 didn’t go far enough to save Amend 41 from being unconstitutional, and (b) probably the reason why SB 210 didn’t further was to do so would “limit or restrict” Amend 41 in violation thereof.
In my view, the court didn’t adequately justify either conclusion. That is, WHY didn’t SB 210 go far enough to save the Amend.? And WHY would SB 210 have violated Amend. 41 if it had gone further?
If I were appealing this case, I would hit these 2 points hard….along with the court’s rather expansive reading of the First Amendment and the court’s apparent refusal to read the prohibitions section of the Amendment in light of the penalties secton.
on why the current legislation didn’t rescue the amendment. Still, the legislation should have been drafted to be more effective. I think that the reason it wasn’t is that those under the dome were walking a tightrope, trying not to take too tough a stand against the amendment (violating the will of the people) or for it (maddening those unintentionally harmed).
Playing both sides rarely results in effective decision making. The amendment is probably where it belongs now, in the papers, being debated in the open, and most likely to be superseded by another ballot measure with fewer flaws.
…Having read the judge’s order more closely, I no longer believe it is of high quality. Although parts of the order are sensible, some parts are simply not. The court makes some sweeping and unjustified assumptions both about the reach of Amendment 41 and the protection of the First Amendment. The order has many holes in it.
Bear in mind that I think Amend. 41 is too broad, too vague, and badly drafted overall. But, even I can’t accept many of the court’s arguments for enjoining its enforcement. I think that the AG can have a field day taking the order apart on appeal.
Contrary to what the CC post suggests, the defendants (the AG) can appeal this decision immediately. An order granting a preliminary injunction is immediately appealable. Colo. Appellate Rule 1(a)(3). Indeed, such an appeal was taken in the Amend. 2 case way back in 1993.
But the chances of 1: the appeal of the injunction and having it overturned are very small; 2: the case being won by the defendants in trial and/or appeal is also very small.
This case is done. The issues are very clear and someone should find the money to put something that actually makes sense on the ballot – that which the proponents ‘claimed’ they were promoting rather than the vague/ambiguous language that was proposed.
But the 41 creators still seem to be hoping for a judicial miracle to correct their mistake.
completely reversed at trial when there have been three days of hearings already, that’s true. It is the same person making the decision at trial with only slightly more information. But, it wouldn’t be that unusual in a case like this one for a final injunction to be reversed on appeal. Different people often look at cases differently.
Thanks for catching that point. When you are rushing to get the scoop on the story, there isn’t always time to reflect on every option and I made a comment to the story analyzing the appeal option at length.
…I thought your instant analysis was remarkably cogent and accurate. Well done.
By the way, the rumor mill to which I pay attention says that the AG WILL appeal this decision….and very soon. So, Judge Habas’s decision will probably come under scrutiny right away.
As for the possibility of the AG agreeing to a “settlement,” I can’t imagine right now what sort of settlement could accomodate both the plaintiffs and the AG. I don’t recall ever seeing the AG reach a settlement when the constitutionality of a statute (or, here, a state constitutional provision) is at issue. But, I suppose anything can happen.
the issue deserves open debate
One rather common way to thwart a badly written statute or regulation (it happens a lot in environmental law and civil rights case) is to bring suit, establish that there is a bona fide dispute, and then to reach a consent decree on how the law will be applied that is sensible and workable, even if it is seemingly in clear contravention of the applicable law.
The attorney general probably has the power to bind the state and the ethics commission to a settlement in the context of this kind of litigation. In some ways, consent decrees have a greater ability to bend statutory plain language and to do things that would otherwise be illegal, than implementing legislation.
For example, Colorado’s legislature probably could not enact a constitutionally valid race conscious busing mandate upon a school district for intergration purposes, even with detailed legislative findings. But, if a factual record was made in a court case that there was a history of discrimination in a school district, the appropriate lawyer for the school district could probably enter into a legally binding consent decree that did just that.
In the same way, is Suthers were of a mind to do so, he could probably, particularly if his office suffered another serious litigation setback, to enter into a consent decree to do more or less what SB 210 did, in the interest of meeting the constitutional claims of the Plaintiffs in this case, which would be more binding than SB 210. There would be no one in a position to challenge that decree procedurally, so it would be the law for all intents and purposes (see, e.g., discussions of citizen standing when the AG has been a party to an action in some of the convoluted mid-term redistricting cases which Mr. Zakhem handled as an attorney for the GOP activists in federal court).
Some initial thoughts:
(1) The AG has already consented to some preliminary injunctions in some scholarship cases, in which he agreed that A.41 didn’t prohibit the scholarships. In the later injunctions, however, he didn’t agree that he or Ritter were proper parties. He argued instead that the proper party was the Ethics Commission because it is charged with enforcement. So, I don’t know if he feels that he can bind the Ethics Commission to any consent decree.
(2) The judge would have to approve the consent decree. If she doesn’t believe that SB 210 solves the constitutional problems, I wonder if she would approve a consent decree that merely mimics SB 210. Given the judge’s very broad interpretation of what Amend. 41 covers (which is now of public record, of course), it seems like she would approve a consent decree only if, in that decree, the State declines to enforce Amend. 41.
(3) I have followed the mid-decade redistricting cases closely. The federal district court found privity (for preclusion purposes) between Colorado citizens and the General Assembly, not the AG. The US supreme court later vacated that holding and found that the citizens lacked standing to bring their generalized complaints that the judge-made districts violated the US constitution. I don’t know if either of these rulings would prohibit a person directly affected by Amend. 41 from later challenging that amendment as violative of the US Constitution, regardless of any consent decree entered into by the AG. Of course, if Amend. 41 is applied very narrowly or not at all, pursuant to a consent decree, I doubt any private citizen would have a need to challenge the amendment later.
(4) Given the public spectacle surrounding Amend. 41, it seems doubtful that either the Gov. or the AG will enter into a decree that either: (a) stipulates that Amend. 41 violates the US constitution in some manner, or (b) agrees to not enforce Amend. 41 in any way, unless a court rules finally that the amendment is unenforceable in full or in part. It would seem to be easier and more politically palatable for the State/AG to simply get a ruling from the supreme court as to what Amend. 41 means and whether that meaning complies with the federal constitution.
…sounds really good right now. The Capitol was (yawn!) BORING this year. It’s like everyone was walking on frigginВґ eggshells the whole time – scared to even be seen with a lobbyist ( EVEN THE GOOD GUYS!). At least, without all the free food, many of them seemed to have dropped some pounds. Some, not all. Some seem to have replaced The Palm with McDonalds.
but, come on, the Capitol is heads and shoulders above the Palm!
…tres yummy!
41 is dead! A boon to the city! A greater economic boost than the DNC! Is Hickenlooper behind this?
That the whole culture depended on free food from lobbyists. It’s that ingrained expectation that does lead to ongoing low level corruption. So good riddance.
Don’t you remember Maslo’s hierarchy? It’s all about a dome over your head and food in your belly.
My preference for lunch would be to get away from everyone for 1/2 hour of quiet and grab a burger or hot dog somewhere.
As I’ve reported here that during my volunteer work at the capitol this session, we starved. Last year, lots food and lots of usually stupid gifts. This year, not one paperweight or bag of trailmix. This year I never even had a buffet sandwich lunch. Come on, things like that are open to everyon who walks by. Is a legislator going to say to himself, “Wow, the Colorado Car Dealers just bought me an Udi’s sandwich, I will vote with them?”
The basement cafeteria seemed a lot busier than last year, too. I bet they regret taking out the hot food line in 2006.
Maybe a few leg’s lost some weight, so that’s the upside of 41.
I’m new here. I’m wondering if this hangs around well into ’08 what does it do to the primary? Anyone want to enliten the new kid?
is if there are state employee kids who cannot accept scholarships in ’08. If so Jared Polis is toast in his primary bid and the rest of the morons who
wrotescrawled the very badly worded amendment 41 will be mostly ignored.At best it will be used to bring up the fact that those involved should not be listened to or voted for.
We’re pretty dysfunctional, but we do have a lot of fun.