A new approach to Amendment 41

2/8/2007

By Jerry Kopel

 

There must be hundreds if not thousands of newspaper articles and columns written in Colorado about Amendment 41, the "Ethics In Government" language presently in the constitution.

 

Nearly everyone agrees that changes are needed. Some want it by statutory definitions and some want it by constitutional revision.

 

There are two ways to possibly stop the Amendment 41 process. One is to file a lawsuit and hope to keep the issue alive until 2008. The other way is more "out of the box".

 

Amendment 41 is like a car. The exterior may look fine, but there may be no engine. You can't "drive it" without the five member commission.

 

For whatever wrongs that can be resolved by money damages, the Colorado Attorney General, and all district attorneys, play no role. This is not a criminal action, just a civil action for damages.

 

The legislature picks two of the five commissioners, the governor picks one and the Supreme Court picks one. Then three of the four voting for the same person pick the fifth. The  language in the constitution (and one of its faults) fails to give a date when everything has to be in place.

 

Without the commissioners being appointed by the  legislature (even if the governor and the court pick one each) there is no process to hold hearings or render rulings. There is thus no way for a complaint to be filed or for a governmental agency to obtain a damage payment.

 

Of course, the backers of Amendment 41 could file an action requiring the legislature to act, but the state Supreme Court has been very hesitant to overcome what it considers to be legislative plenary status, especially  if votes are taken which do not produce an appointee..

 

This has recently been shown by the court's inability to deal with the legislature's defying the constitution as to who writes the explanations pro and con for the election year Blue Book.

 

The House and Senate could hold hearings on potential appointees, but since the vote needed for such appointments is not included in Amendment 41, (another error) the House  and Senate could require a  two-thirds vote for an appointment. This would pretty well guarantee a stalemate for which the court could do nothing, except make the legislative appointments itself, which would be "far out".

 

In my opinion the drafters (if they can be given that credible name) of Amendment 41 would likely lodge an ineffective protest as to a stalemate, but would privately be happy to wait until 2008, when the legislative drafting office can write a useable constitutional amendment to put on the ballot by referendum. In repealing the present language it could also include immunity for violations prior to passage of the revised version.

 

(Jerry Kopel served 22 years in the Colorado House.)