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Court hears Amendment 41 suit on free speech question today

John C. Ensslin, Rocky Mountain News

Published May 7, 2007 at midnight

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A court hearing begins in Denver today on a claim that voter-approved Amendment 41's limits on gifts to state employees and elected officials unfairly infringes on their First Amendment guarantees to freedom of speech.

A group called First Amendment Council is seeking an injunction in Denver District Court to block the provisions of the law immediately until a trial on the issues can be heard.

At least three days of testimony is anticipated, and about 15 people will testify against the law, including several of the individuals who brought the lawsuit, among them: former state Sen. Norma Anderson; Rep. Anne L. McGihon, D-Denver; and David Getches, dean of the University of Colorado Law School.

On Sunday, Getches said he initially was skeptical about the approach of attacking the constitutionality of Amendment 41 on First Amendment grounds. But as he read the cases cited by the lawyers in the case, it made sense.

"There's been a kind of dampening effect that this law has caused both in our personal and our professional lives," Getches said.

As an example, he cited a provision of the law that prohibits university employees like himself from accepting travel and accommodations at conferences on topics that concern him, such as environmental law, water rights issues and American Indian rights.

Unless he is listed as one of the speakers, Getches said he has to pay for such trips out of his own pocket. Such limits put a chilling effect on his right to associate with various nonprofit organizations that in turn attempt to shape government policy.

"When your professional life and your right of being able to spread your ideas is impaired, it came into focus for me that we do have some pretty serious First Amendment claims here," he said.

However, supporters of Amendment 41 contend the law recently signed by Gov. Bill Ritter to implement the measure already had dealt with many of the complaints raised in the lawsuit. The law creates an ethics commission but also provides guidelines aimed at preventing frivolous cases.

"Amendment 41 was clear to begin with that it was aiming at violations of public trust," said Mark Grueskin, a lawyer for a coalition formed to implement the measure.

"It was all about people who were trading in public office in situations that would undermine confidence in government," he said. "The legislature made it clear that anything other than that was frivolous and shouldn't be heard by the ethics commission."

Approved by Colorado voters Nov. 7, Amendment 41 bans elected officials, government employees and government contractors and their families from accepting gifts worth $50 or more. It also limits elected officials from becoming lobbyists for a period of time after they leave office.

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