The state files Amend. 41 appeal—but others celebrate the injunction with zeal
By Jody Hope Strogoff, The Colorado Statesman, June 15, 2007
“Isn’t this a great night?” beamed Tim Jackson, executive director of the Colorado Automobile Dealers Association as he looked around at dozens of legislators, lobbyists and lawyers who gathered to celebrate at CADA’s office earlier this week.
“And you don’t need a receipt tonight, folks!” added Bill Becker, Adams County Economic Development president who also heads up the non-profit First Amendment Council, which successfully won an injunction against Amendment 41 in Denver District Court a couple weeks prior.
The two were surrounded by happy legislators and lobbyists, who have pretty much refrained from socializing this year due to the restrictions of the so-called “ethics in government” amendment.
The remarks of Becker and Jackson, who serves as the treasurer of the Council, emphasized the glee they all shared when the court granted the injunction on May 31 until a full trial can be held on the constitutionality of the measure, which voters passed overwhelmingly in 2006.
The amendment has raised havoc in the halls of the Capitol and throughout state government, as both proponents and opponents have tried to decipher its exact meaning since it went into effect in January. The wording of the amendment has caused confusion because its three parts include a provision banning gifts to legislators of more than $50, and may have included more than 200,000 state employees who suddenly found themselves under Amendment 41 constraints.
The unintended consequences, as they’ve been called, have subjected many family members of state employees from accepting such things as college scholarships.
The legislature was at odds as to whether it had the legal authority to enact enabling legislation to more clearly define the amendment, and the issue landed in court when the First Amendment Council asked for an injunction.
The Council, with the legal crew of Fairfield & Woods and former state Supreme Court Justice Jean Dubofsky—who had successfully argued before the U.S. Supreme Court against Amendment 2 that would have changed the state constitution to prohibit laws protecting gays against discrimination—were successful in convincing the judge to issue the injunction.
The June 12 hamburger and hotdog celebration, catered by Footers and sheltered from the rain by a tent set up on the patio over the grill and bar at CADA’s headquarters, was meant as a thank you to the various forces which had coalesced behind the court case.
But is also served as a sort of kickoff for the second phase of the legal fight, which the First Amendment Council anticipated would follow when the state of Colorado likely appealed Habas’ decision.
That came two days later.
On June 14, an appeal to the Colorado Supreme was officially filed by Gov. Bill Ritter and Colorado Attorney General John Suthers, as representatives of the state of government Colorado.
Indeed, that’s what the First Amendment Council argued and what Judge Christina Habas had ruled. In her opinion, Amendment 41 chills free speech to the point, in fact, that plaintiffs would likely prevail at trial in their claim that it’s unconstitutional.
“I needed talented professionals representing us,” explained Council president Bill Becker. “To have that (free speech) dialogue chilled really bothered me.”
The Fairfield & Woods firm, in partnership with Dubofsky, won the bid to represent the First Amendment Council.
As attorney Doug Friednash explained at the event, their litigation strategy focused on the gift ban portion of the amendment “because the implications were more drastic.”
The amendment applied to more than 237,000 non-decision making government workers, Friednash continued, and “impacted families in profound ways.”
“It wasn’t just about lobbyist bans,” he said.
Helping make the case were fellow attorneys Jack Tanner and Susan Fisher.
One of their goals was to perform a so-called surgical strike on the different ways in which people were affected by the amendment, and to explain the role of lobbyists in the political process, Friednash said.
Among those who testified in court were Ginny Buck, a former Firestone planning commissioner who said she felt forced to resign her governmental position because Amendment 41 would have prevented her kids from getting college scholarships. Also testifying in court was the president and CEO of the Colorado Nonprofit Association, Charles Shimanski.
In addition, former legislator Peggy Kearns, now employed at the National Conference of State Legislatures as an expert on ethics, addressed the court on the “draconian” effects of Amendment 41.
State Rep. McGihon, former legislator Frank Weddig and lobbyist Danny Williams also testified that 41 “stymied the political process.”
University of Colorado School of Law Dean David Getches was instrumental in the case.
The amendment, he said, impacted the livelihood of professors who were apprehensive about taking on new clients. And he feared the implications of denying people freedom of speech.
Former Supreme Court Justice Dubofsky highlighted District Judge Habas’ ruling that Amendment 41’s impact stifled the right to give and receive information guaranteed under the First Amendment. That ruling, Dubofsky said went straight to the heart of the matter.
As pleased as she is with the outcome leading to an injunction, Dubofsky warned that the legal fight is hardly over.
She added, however, that because they (the First Amendment Council’s attorneys) put a wide array of witnesses on the stand, “it presumably affirms the injunction on the merits of the case.”
Dubofsky predicted that the state Supreme Court will likely rule on the appeal by the end of this year in an expedited manner.
“If the court upholds the injunction, it goes back to District Court so the case can be heard based on its merits,” Dubofsky pointed out. “But that probably won’t happen and there won’t be a trial.”
Dubofsky said that in the case that her clients lose, they’ll likely appeal to the U.S. Supreme Court, which is “something we may have to think about.”
The appeal by the state requests that the Colorado Supreme Court have official proceedings underway on Aug. 1, 2007, with the defendants’ briefs to be filed within 21 days and the plaintiffs-appellants’ opening brief served and filed within 20 days after that.
“This isn’t about golf games or football tickets, but about how we get information,” state Sen. Nancy Spence, R-Centennial, said at the get-together.