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41 on ropes, Part 2

A lesson for lawmakers, too

Published June 2, 2007 at midnight

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As we explained at some length in Friday's lead editorial, Denver District Court Judge Christina Habas issued the most comprehensive, devastating critique of Amendment 41 that yet exists when she halted enforcement of the measure this week.

In numerous ways, the judge insisted, this misnamed "ethics in government" amendment chills free speech - to the point, in fact, that plaintiffs are likely to prevail at trial in their claim that it's unconstitutional.

What hasn't been noted in any coverage or commentary we've seen, however, is how the judge's decision is also an implicit rebuke of the legislature.

As you may recall, lawmakers tried to "fix" 41's worst problems with a new statute, Senate Bill 210. For Judge Habas, however, SB 210 seems to be about as relevant as the latest offer on a box of Post Toasties. She politely observes that the defendant - that would be state lawyers charged with putting the best face on this wretched ballot measure - believes the amendment only bars gifts "that are given with the intent of improperly influencing decisions by government officials or employees. In support of this argument, Defendant argues that Senate Bill 210 has created this 'nexus.' "

But Habas will have none of it. Lawmakers did not create such a "nexus" with SB 210, she concludes - and moreover, she's not going to do it for them. The amendment bans a much wider array of "gifts" in ways that interfere with normal human interaction and basic freedom; that's one of its worst problems, in fact.

Talk about tough love from the bench. Lawmakers pretty much wasted their time, in other words.

We frankly wished the judge had been even stronger on this point, perhaps writing something to this effect: "'Nexus,' shmexus. Shame on you. Who cares what SB 210 says? You can't rewrite a constitutional measure with a statute. Didn't they teach you fellows that much in law school?"

SB 210 essentially tries to turn Amendment 41 into a ban on bribery. But Colorado already bans the bribery of public officials. Amendment 41 intended to do much more, and it's a little late in the game for its supporters to be pretending otherwise. We may not agree with all of Habas' opinion - she goes overboard in several areas outlined in Friday's editorial (see rockymountainnews.com/drmn/editorials) - but she's absolutely correct in her refusal to take SB 210 any more seriously than she does.

A spokesman for Gov. Bill Ritter says the state will appeal the decision - which is only proper given that the amendment passed last fall by a substantial majority of voters. For that matter, even dedicated opponents of Amendment 41 such as ourselves were somewhat taken aback by the sweeping nature of Judge Habas' many findings.

Still, Habas is on firm ground when she finds that 41 "reaches into the personal lives of those who are covered by its terms" and that it erodes the "fundamental rights of association." Whether the state Supreme Court agrees remains to be seen, but at this point we wouldn't bet a whole lot on the survival of the most poorly written constitutional amendment of the past generation.