By Jerry Kopel
The court was wrong and I am glad there will be an appeal to the Colorado Supreme Court.
Three Colorado Court of Appeals judges (out of 16) denied Sen. Ken Gordon's fight to preserve the state constitution from legislative intrusion in preparing the "Blue Book".
A Blue Book (which is the color of the cover) deals with statewide ballot issues and prints pro and con arguments regarding each issue. It's sent to each voter by the state legislature's research arm.
The book and who prepared it, is authorized by an amendment to the state constitution, Article 5, Section 1 (7.5) adopted in 1994.
The explicit language states "the nonpartisan research staff of the general assembly shall prepare and make available to the public the following information....a fair and impartial analysis of each measure which shall include a summary and the major arguments both for and against the measure...This section of the constitution shall be in all respects self-executing."
Under the constitution, there is absolutely no role for the legislature or the 18 legislators who make up the legislative council to change language prepared by the nonpartisan research staff.
Colorado's legislature (by referendum or initiative) has given up constitutional powers in other areas. One example: The legislature's joint budget committee and the legislature itself cannot tell Great Outdoors Colorado (GOCO) how much money it can spend and what to spend it for. GOCO uses lottery funds for open space and similar environmental purposes.
Legislators are either partisan or bipartisan. They are not nonpartisan. That's why the task of writing the pro and con arguments was taken from them -- to reassure the public they could trust language in the Blue Book. The legislature has chosen by statute to ignore the prohibition.
On December 15, 2005, the three appellate judges held Sen. Gordon's lawsuit "moot". Why ? Because the 2004 ballot issues had already been decided by the voters, and the statute which gave the legislature a role in changing language had been revised.
It now reads "the legislative council may modify the draft of the booklet upon the two-thirds affirmative vote of the members of the legislative council." It isn't clear whether that means: 2/3rds of all the members appointed or 2/3rds of those showing up to make a quorum.
The underlying issue is whether the legislature CAN supplement constitutional provisions. The appellate court, in the sixth paragraph of its decision, in effect, held that it can: "Section 1-40-124.5 supplements this constitutional provision."
"Plaintiff's contention that the Council has no statutory authority to amend any draft of the nonpartisan research staff is mooted by the amendment to 1-40-124.5 which explicitly gives the Council authority to do so."
Huh? That's the AUTHORITY being challenged!
"Moreover, an answer to plaintiff's assertion that the former Blue Book statute is unconstitutional as applied would not have an effect upon an existing controversy as that statute has now been amended and any future "as applies" challenge will involve the current statute and a new set of facts."
The underlying issue is exactly the same under the old and new statute version. Is there authority by this statute to legally violate the constitution?
The reason why I have gone into great detail from the court decision is because the public will NOT have access to the decision. It is "Not published pursuant to Colorado Appellate Rule 35 (f)."
So it isn't going to appear in the Colorado or Pacific Reports, which is where a future plaintiff would turn to for consultation.
The rule provides "No opinion of the Court of Appeals shall be designated for official publication unless it satisfies one or more of the following standards:
(1) the opinion lays down a new rule of law, or alters or modifies an existing rule, or applies an established rule to a novel fact situation;
(2) the opinion involves a legal issue of continued public interest;
(3) the opinion directs attention to the shortcomings of existing common law or inadequacies in statutes;
(4) the opinion resolves an apparent conflict of authority.
In my opinion this decision involves (2) and (4). The court, in my opinion, has decided the legislature can ADD to the constitution a legislative right not provided by the constitution.
Not that it matters at this stage in the battle, but why didn't the attorney general's office defend the action? Did they disagree with the legislature? And how many lawyers did the defense need? I count three lawyers for the defense and all from a very possibly high end in fee charges firm. Perkins Cole, LLP (600 lawyers in 12 offices across the country and one office in China.)
The decision is to be appealed to the state Supreme Court. If the appellate court decision is upheld, it provides a blueprint for NEVER getting to the basic issue, by (1) always delaying a finding until an election is over, and (2) always revising the statutory language giving the legislature authority to revamp the Blue Book.
If that does happen, the Blue Book isn't worth the cost of the postage spent to mail it to voters who won't know who wrote it.
(Jerry Kopel served 22 years in the Colorado House.)
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