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Supreme Court punt

State high court ducks question of 41's constitutionality

The Rocky

Published February 26, 2008 at 12:05 a.m.

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Most judges don't relish overturning amendments passed by a majority of voters. It makes them look like arrogant second-guessers. Maybe that explains the peculiar decision Monday by the Colorado Supreme Court regarding Amendment 41, which spared the justices from having to evaluate the actual language of the measure.

Instead of addressing the fundamental constitutional questions raised by plaintiffs in Developmental Pathways v. Ritter, the Supreme Court tried to punt the issue - at least temporarily - out of the courts altogether. It reversed as premature - not "ripe," in legalese - a district court opinion declaring numerous provisions of Amendment 41 as very likely unconstitutional.

"In order for plaintiffs to obtain a declaration that the amendment is unconstitutional as applied," the court explained, "there must be an actual application or at least a reasonable possibility of enforcement or threat of enforcement."

Conveniently enough, Amendment 41 will be enforced by an ethics commission that is still not up and running, incredible as that may be. What disturbs us about the Supreme Court's ruling, however, is not so much the court's insistence on the emergence of the ethics commission, but its hints that the amendment might be saved if the commission refuses to enforce it as written.

The court didn't put it like that, of course. "It is the commission that will implement the amendment and develop rules to guide the enforcement of the gift bans," the court said. "Perhaps, in the future, there may be truth to the concerns expressed by plaintiffs, but that is for the commission to consider as it enforces the amendment, not for this court at this time. For now, these fears, which undoubtedly have caused plaintiffs and others much anxiety, are merely speculative interpretations of what might occur once the commission is operative."

But those fears are not speculative interpretations of what Amendment 41 actually says. As Denver District Court Judge Christina Habas pointed out in her decision last year, "Amendment 41 restricts a lobbyist from socializing with anyone in their personal lives, if those people happen to hold office, are employed by the government, have contracts with the state of Colorado, or are family members of these individuals and groups." That's literally true, even if voters failed to appreciate the draconian nature of what they were approving.

It is equally true, as Habas also pointed out, that Amendment 41 technically prevents members of the Colorado Health Sciences Center Police Department from contributing "more than $50 for funeral expenses to assist a co-employee whose son had died."

Habas concluded that "This interference violates the fundamental right of association . . . ," and we would tend to agree. But what if the ethics commission never pursues any complaints regarding the sort of socializing or aiding of friends that Habas describes? Would that make the amendment all right? The high court seems to be suggesting that it would - that the commission, like the legislature before it, can simply ignore the plain language of a voter-passed measure and act as if it says something else.

Why, if everyone pretends hard enough, maybe the courts will never have to deal with the ugly possibility that Coloradans passed a measure that is an open assault on personal liberty - even a core liberty protected by the Constitution.

By the way, we are not great fans of Habas' opinion, which overreaches in several arguments. But it does raise important issues that we thought deserved more than Monday's inconclusive reversal.

Comments

  • February 26, 2008

    2:49 a.m.

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    mrfxx writes:

    An assault on personal liberty my ass! The voters were fed up with hearing about legislators getting box seats at sporting events that none of us could afford, junkets in the name of "education" sponsored by businesses, etc - which regularly at least seem to result in "quid pro quo" legislation.

    The amendment may well have been phrased badly - perhaps to the point of being too vague. I seriously doubt any of the voters intended preventing someone NOT in a position of creating/passing legislation from having a child be eligible for a scholarship (most of us don't consider those gifts: either the student earned it through scholarship or athletic ability - a scholarship isn't usually handed out like trick or treat candy), nor did we intend for a member of the police, fire departments or even teachers from having a fundraiser thrown to help them in case of on the job injury or catastrophic illness - and I am sure that none of us intended that the cost of a gift from a spouse or child should be limited (assuming the spouse or child can afford to buy the gifts without assistance from special interest groups). Those are issues that the Colorado Supreme Court should have addressed - and didn't have the guts to address!

    Why shouldn't the state legislators have to face the same ethical "gift limits" we in business do? (I can't receive a gift from a customer that costs over $25.)

  • February 26, 2008

    6:44 a.m.

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    VVVV writes:

    I agree that it's not the supreme court that should decide these issues. An ethics commission should be intelligent enough to leave fund raisers for officer funerals off of the enforcement list. They should also be smart enough to enforce against a senator receiving free tickets. Almost every law in the constitution has some level of interpretation involved in its enforcement, and that interpretation can change with the times. This chicken little attitude towards a new law is just the legislators pulling out every little possibility of enforcement because they don't want to give up their freebies.

    As far as I'm concerned, the measure didn't go far enough. Fundraising for politicians should be capped at an annual amount. Spending gobs of money on relentless TV advertising does nothing more than to leave a bad taste in every voter's mouth. We are so far removed from a citizen government that voting rates are appalling. Most people can plainly see that state or national government no longer speaks for them, but is tantamount to a Roman Senate consisting of the wealthiest and most removed elite. And we recognize that they are running our country into the ground.

  • February 26, 2008

    8:12 a.m.

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    angka writes:

    More overwrought hand-wringing over nothing...

  • February 26, 2008

    9:02 a.m.

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    alcambell_9 writes:

    You want good and fair government; make the legislators criminally and civilly liable for recieving money or any kind of gifts from Special Interests or their lobbyists and make it a crime under federal felony law to do so. It's moronic that we don't require our elected officials to meet the highest standards of honesty and fairness,after all, they have extreme power over what the people are allowed to do and not do, but remember that's only so long as the people grant them that under their power as the government of the people, by the people and for the people. We are the government. We elect legislators to serve our best interests, not their best interests and it is high time they were reminded of that. And I can't think of a better way than to make any violation of the law just cause for removal from office and prosecuted for violating the public trust.

  • February 26, 2008

    11:25 a.m.

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    buffsblg writes:

    Tell me Rickylee, where does it say that the commission can ignore the language of the law to enforce the "intent". 41 is clear, no state employee or their family can accept anything worth more than $50.00 without giving equal value in return. There are no exceptions for scholarships or Nobel prizes or genius grants. The commission's job is also clear: enforce the law AS WRITTEN.

    The potential effects of the amendment were well publicized before the election and the people chose to ignore them or perhaps wanted to prohibit scholarships. Those who promoted this and those who voted for it need to live with the consequences, not just walk around and say "oh that is not what we meant to do." If it needs fixed then the only people who have the legal or moral right to do so are the voters. It is the job of the Supreme Court to enforce the law, not to try to fix the law.

  • February 26, 2008

    11:29 a.m.

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    ItsJustme writes:

    Wake up people! While the ethics commission is not going to go out of its way to take away scholarships from state employees, they will be taken away just the same. As with most laws, there is little actual enforcement. The vast majority of people simply comply with them voluntarily. The private firms and foundations offering scholarships will exclude state employees' children from eligibility since it will be illegal for them to receive the money. They will not say "no one's going to catch us giving the money." They will say "it's illegal and because we are responsible corporate citizens, we will voluntarily comply with it. In order to protect these innocent children, the law must be rescinded or there must be a legal interpretation that it does not apply in these instances.