August 22, 2019

Colorado Supreme Court: Supreme Court May Review Title Board Abstract Using Same Requirements as for Single Subject and Title Disputes

The Colorado Supreme Court issued its opinion in In the Matter of the Title, Ballot Title and Submission Clause for 2017–2018 #4 on Tuesday, May 30, 2017.

Single Subject—Fiscal Impact Statement Abstract—Standard of Review.

The supreme court held that Initiative #4 contains a single subject: limiting housing growth in Colorado. The court also considered, for the first time, its authority to review an abstract prepared pursuant to C.R.S. § 1-40-105.5 and the proper standard to apply when reviewing such an abstract. The court held that C.R.S. § 1-40-107 grants the court reviewing authority, and the proper standard of review is the same standard the court applies to the single-subject and clear-title requirements—that is, the court draws all legitimate presumptions in favor of the propriety of the Title Board’s decision and will  only overturn the Title Board’s decision in a clear case. Under that standard, the court upheld the Title Board’s approval of the abstract at issue in this case. Therefore, the court affirmed the actions of the Title Board.

Summary provided courtesy of The Colorado Lawyer.

HB 17-1163: Changing Timelines for Candidate Petitions and Increasing Number of Required Signatures

On February 6, 2017, Rep. Justin Everett and Sens. Vicki Marble & Tim Neville introduced HB 17-1163, “Concerning Certain Requirements Affecting Candidates Seeking Access to the Ballot by Means of a Petition, and, in Connection Therewith, Altering the Deadlines by which Candidate Petitions are Required to be Filed and Increasing the Number of Signatures Needed to Qualify Petitions for Candidates for the General Assembly.”

The bill extends the amount of time that elections officials may review candidate petitions by making a concomitant reduction in the amount of time that candidates may circulate such petitions.

The bill also increases the number of signers needed to qualify petitions for candidates for certain partisan public offices.

The bill was introduced in the House and assigned to the State, Veterans, and Military Affairs Committee. It is scheduled to be heard in committee on March 2, 2017, upon adjournment.

Colorado Supreme Court: Title of Ballot Initiative Misleading and Confusing

The Colorado Supreme Court issued its opinion in In re Title, Ballot Title, and Submission Clause for 2015-2016 #156 on Tuesday, July 5, 2016.

Initiative #156 seeks to restrict the sale of certain “intoxicants” at retail food stores, including full strength beer, liquor, marijuana, and marijuana products. The Colorado Supreme Court held that the title was confusing because it could invoke voter speculation as to whether the initiative sought to prevent current holders of licenses of those “intoxicants” from renewing their licenses, to revoke the licenses of current holders, or to prevent new licenses from issuing. The court remanded to the title board.

Colorado Supreme Court: Ballot Initiative for Healthy Environment Consists of Single Subject

The Colorado Supreme Court issued its opinion in In the Matter of the Title, Ballot Title and Submission Clause for 2015–2016 #63 on Monday, May 16, 2016.

Single Subject—Clear Title.

The Supreme Court held that Initiative #63 contains a single subject: the creation of a right to a healthy environment. The Court also held that the title clearly expresses Initiative #63’s single subject. The Court thus affirmed the action of the Title Board.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Ballot Initiative Contains Only One Subject but Title Misleading

The Colorado Supreme Court issued its opinion in In re Title, Ballot Title, and Submission Clause for 2015-2016 #73: Hayes v. Spalding on Monday, April 25, 2016.

Single Subject—Clear Title.

The Supreme Court concluded that Initiative #73 contains one subject, namely, the manner in which recall elections are triggered and conducted. The Court further concluded that the title set by the Title Board does not satisfy the clear title requirement because (1) it does not alert voters to central elements of the initiative; (2) it is misleading as to other elements; and (3) as all parties agree, it unnecessarily recites existing law. Accordingly, the Court reversed the action of the Title Board in setting the title for Initiative #73 and returned the measure to the Board for the purpose of fixing a new title that satisfies the clear title requirement.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Title Clearly Expresses Single Subject of Ballot Initiative

The Colorado Supreme Court issued its opinion in In the Matter of the Title, Ballot Title, and Submission Clause for 2013–2014 #89 on Monday, June 30, 2014.

Single Subject—Clear Title.

In this case, the Supreme Court held that Initiative #89 contains a single subject and that the title clearly expresses the single subject. The Court thus affirmed the action of the Title Board.

Summary and full case available here.

Colorado Supreme Court: Ballot Initiative Rejected Because it Proposes More than a Single Subject

The Colorado Supreme Court issued its opinion in In the Matter of the Title, Ballot Title, and Submission Clause for 2013-2014 #76: Hayes v. Spalding and Staiert on Monday, June 23, 2014.

Single Subject Violation—Second Subject has an Independent Purpose.

Initiative #76 would repeal existing Colorado Constitution Article XXI in its entirety. Currently, Article XXI sets forth provisions for recalling state and local elected officers. Initiative #76 proposes to comprehensively revamp the recall provisions of Article XXI, for the purpose of altering the manner in which state and local recall elections are triggered and conducted.

Initiative #76 has a second purpose: to establish a new constitutional right to recall non-elected state and local officers. Historically, Colorado law has provided only for the recall of elected officers. The initiative’s second subject has a distinct and separate purpose from its first subject.

The Supreme Court concluded that Initiative #76 proposes more than a single subject, in violation of Colo. Const. art. V, § 1(5.5), because the second subject has a purpose that is not dependent on or necessarily and properly connected to the first. Accordingly, the Court reversed the Title Board’s action. The matter was returned to the Title Board with directions to strike the title and return the initiative to its proponents.

Summary and full case available here.

Colorado Supreme Court: Ballot Initiative Encompasses Only Single Subject and is Therefore Acceptable

The Colorado Supreme Court issued its opinion in In the Matter of the Title, Ballot Title, and Submission Clause for 2013-2014 #129: Milo v. Coulter and Staiert on Monday, June 23, 2014.

Single Subject—Clear Title.

The Supreme Court held that Initiative #129 contains a single subject: the definition of a “fee.” The Court also held that the title clearly expresses the single subject of Initiative #129. The Court thus affirmed the action of the Title Board.

Summary and full case available here.

Colorado Supreme Court: Petitions Concerning Administrative Matters Cannot Be Ballot Initiatives

On Monday, February 11, 2013, the Colorado Court of Appeals issued its opinion in Vagneur v. City of Aspen.

Municipal Corporations—Matters Subject to Initiative.

The Supreme Court considered whether two citizen-initiated proposed ordinances regarding the design and construction of a state highway entrance to the City of Aspen were administrative in character and therefore outside the scope of the initiative power reserved to the people under article V, §§ 1(1) and 1(9), of the Colorado Constitution. The Court held that the proposed initiatives were administrative in character and therefore were not a proper exercise of the people’s initiative power. It therefore affirmed the judgment of the court of appeals.

Summary and full case available here.

Colorado Supreme Court: Title Board Lacked Authority to Act Where Fewer than Both Representatives Appeared at Rehearing

The Colorado Supreme Court issued its opinion in In the Matter of Title, Ballot Title, and Submission Clause for Proposed Initiatives 2001-2012 Nos. 67, 68, and 69; Hayes v. Ottke; In the Matter of Title, Ballot Title, and Submission Clause for Proposed Initiatives 2011-2012 Nos. 94 and 95; Walter v. Staelin on Monday, January 7, 2013.

Ballot Title—Statutory Interpretation—CRS §1-40-106—Public Meeting—Designated Representatives.

Petitioners filed original proceedings pursuant to CRS §1-40-107(2), asserting that the Title Board lacked authority to take action with respect to challenged titles because fewer than both of the designated representatives of the Initiative’s proponents appeared at the rehearings. CRS §1-40-106(4)(a) requires “[e]ach designated representative” to appear at “any title board meeting at which the designated representative’s ballot issue is considered,” and CRS §1-40-106(4)(d) states that “[t]he title board shall not set a title for a ballot issue if either designated representative of the proponents fails to appear at a title board meeting.” Consequently, the Supreme Court held that the Title Board lacks authority to set title or take action with respect to challenged titles where fewer than both designated representatives appear at a rehearing. Therefore, the Court reversed the actions of the Title Board in these cases.

Summary and full case available here.

Beat the Crowds on Election Day—Early Voting and Mail-In Ballots

It may seem distant now, but last year at this time the election focus was on Egypt and the elections in that country. Citizens lined up in very long queues to have the opportunity to vote for their leader. The images are striking, representing the sanctity of choice and election.

In this country, we do not usually have to wait in lines longer than city blocks in order to cast our votes. Poll centers are conveniently located, and we even have early voting and mail-in ballots. Still, there are frequently lines on Election Day, some that may seem interminable.

If you would prefer to avoid the lines on Election Day, there are some excellent options. Early voting locations are scattered throughout Colorado; click here to find one in your county. You can find your Election Day voting location here as well.

Mail-in ballots are another great way to beat the crowds. If you requested a mail-in ballot, you have until 7 p.m. on November 6, 2012 to get it to a drop off center. If you already mailed your ballot in and it has been returned for correction, you can submit your corrected ballot any time up to 7 p.m. on November 6. You can even track the progress of your mail-in ballot at www.govotecolorado.com.

If you are undecided on the ballot issues and would like more information, you can get the official Blue Book 2012 here. Or, for information on judicial retention, go to the Know Your Judge website. Another good website, Just Vote Colorado, provides nonpartisan information and resources. Vote early, vote by mail, vote on Election Day—just vote.

Spark the Discussion: No Love Supreme – Colorado Courts Continue to Rule Against Medical Marijuana Patients

“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

By Brian Vicente, Esq. and Rachelle Yeung

Leonard Charles Watkins has long suffered pancreatitis, which causes him debilitating chronic pain and for which he has been hospitalized three times. Watkins’ doctor recommended he use marijuana to reduce his suffering, so Watkins lawfully applied and qualified to be a medical marijuana patient. In February 2012, the Colorado Court of Appeals revoked Watkins’ ability to treat his illness with this state-approved medicine.

In 2008, Watkins pled guilty to a class three felony – unrelated to any controlled substances – for which he received six years’ probation. His probation conditions required that Watkins “not use or possess any narcotic, dangerous or abusable substance without a prescription,” and that he “not commit another offense” for the duration of his probation. However, after Watkins explained his medical condition to his judge, the trial court issued an order approving his use of medical marijuana.

The Arapahoe District Attorney filed a motion to reconsider, which the trial court denied in an extensive written order. The Prosecution then appealed the denial and the Court of Appeals reversed the trial court’s order, thus denying Watkins the use of this medicine.

Under Colorado law, trial courts are required to set as a condition of probation that probationers “not commit another offense.” C.R.S. 18-1.3-204(1). The Court of Appeals wrote in its opinion that “[t]he Colorado statute itself does not define the term [offense].” People v. Watkins, — P.3d —, 2012 WL 310776 (Colo. App. 2012). However, the Colorado Criminal Code – where the probation statutes can also be found – defines “offense” as “a violation of, or conduct defined by, any state statute for which a fine or imprisonment may be imposed.” C.R.S. 18-1-104(1). It is undisputed that Watkins’ use of medical marijuana was permissible within state law. Yet, despite this straightforward practice in statutory interpretation, the Court of Appeals expanded the meaning of “offense” beyond its unambiguous definition and determined that it included violations of federal law.

To be clear, this is not a broad determination that federal law preempts state medical marijuana laws – simply that the Court of Appeals interpreted one particular statute to take federal prohibition into account.

Relying heavily on its recent decision in Beinor, the Court of Appeals affirmed that marijuana could not be legally “prescribed,” and that therefore Watkins’ lawful medical use of marijuana was a violation of the condition that he not use or possess “any narcotic, dangerous or abusable substance without a prescription.” Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011). Without further reasoning, the Court of Appeals again echoed the Beinor opinion and held that Amendment 20, Colorado’s original medical marijuana law, did not extend a constitutional right to patients, but merely protected patients from criminal prosecution under limited circumstances.

Recently, the medical marijuana advocacy group, Sensible Colorado, teamed up with the ACLU to file an appeal on Watkins behalf. The Colorado Supreme Court denied this appeal and brandished Watkins, and other sick medical marijuana patients like him, probation violators if they use their doctor-recommended medicine. Specifically, the Watkins decision set forth a sweeping precedent that “neither Petitioner [Watkins] nor any other probationer in Colorado – regardless of the underlying offense, the circumstances of the probationer’s illness, or the trial court’s view – may use medical marijuana.” Petition for Writ of Certiori at 4, Watkins, — P.3d — (Colo. App. 2012).

Despite this seemingly bleak decision, medical marijuana patients are not always condemned to suffer while on probation. It is still the law that a trial court judge’s decision to not revoke probation cannot be appealed, regardless of any probation violations. It may be little comfort, but patients can still hope that sympathetic trial court judges will simply refuse to revoke their probation for medical marijuana use. The passage of Amendment 64, the Act to Regulate Marijuana Like Alcohol, which is on the statewide ballot this November, may further prompt the judicial branch to align their decisions with the will of the People.

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.