22 February 2008

Amendment 41 Ruling Coming Monday

On Monday, February 25, 2008, the Colorado Supreme Court will release its ruling in the case of Developmental Pathways v. Ritter (full disclosure, my law partner is a Plaintiff in the action, I have not participated in the case in any way and I have no privileged information from the Plaintiff's legal team). At issue are the following questions:

1. Whether Colo. Const. art. XXIX is self-executing prior to the appointment of the Ethics Commission and the enactment of rules.

2. Whether Governor Ritter is a proper party.

3. Whether the gift limitations in article XXIX apply only to gifts given or received for private gain or personal financial gain in violation of the public trust.

4. Whether article XXIX, §§ 2 and 3 violate the rights of speech, association and petition.

The opinion will be available at this link on Monday morning.

The most notable and contested provisions of Amendment 41 impose a gift ban upon a large share of all governmental employees in Colorado.

There are deep disputes between supporters and opponents of the measure regarding what the language in the gift ban means. Supporters basically feel that the Amendment applies only in cases of gifts that amount to bribes. Opponents feel that the Amendment is far broader in effect, and would not necessarily be greatly concerned if the Colorado Supreme Court definitively gave the Amendment the narrow reading proposed by supporters.

The case could also have a meaningful impact on the Second Congressional District race in which Jared Polis, one of the biggest financial backers of Amendment 41 is a candidate.

The first two issues before the Colorado Supreme Court offer it an opportunity to punt and avoid reaching the merits of the case (for a second time, the Colorado Supreme Court refused to issue an advisory opinion previously requested by the state legislature). The second two issues go to the merits of the meaning and validity of the gift ban.

Pending this appeal, the gift ban of Amendment 41 has been the subject of an injunction preventing it from taking effect, so depending upon how the questions before the Colorado Supreme Court are resolved, the gift ban could again immediately begin to impact government employees starting on Monday.


Anonymous said...

Anonymous predictions are the most reliable: The court will reject the plaintiffs' overly expansive reading of the amendment, and instead agree with the defendants. After doing so, the constitutional questions are minor and easy. So, Amendment 41 will be upheld but its reach will be limited, which is consistent with its supporters' current wishes. Which makes you wonder why they bothered with an amendment that barely changes the law at all (other than the "revolving door" lobbying provision).

Andrew Oh-Willeke said...

Good guess, but, of course, as we know now, not the right answer.

Punting as it did was a dark horse possibility, but in hindsight, isn't too surprising.