Tag Archives: First Amendment

Christopher Boyer and Patrick Singson v. Health Grades, Inc., 2015CO40 (June 1, 2015)

Can you sue someone for suing you without violating the First Amendment’s right to petition the government? Yes, in purely private disputes. Imagine you are a former employee and you do something your former employer does not like, as happened to defendants here. Your former employer (plaintiff) sues you. You then want to sue your former employer for suing you claiming abuse of process or tortious interference. Your former employer defends by claiming that its right to sue (petition using the courts) is protected by the First Amendment. Your former employer would be wrong in Colorado. The Court held that First Amendment protections from suits related to matters of public interest (as provided in the POME case) do not extend to purely private disputes. The Court came to the same conclusion in the arbitration context in General Steel, which it extended to this case.



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Filed under Constitutional, Torts

In Re: Interrogatory Propounded by Governor John Hickenlooper Concerning the Constitutionality of Certain Provisions of Article XXI, § 3 of the Constitution of the State of Colorado, 2013CO62 (Oct. 21, 2013)

“[T]he United States Supreme Court’s precedent (and common sense) make clear that virtually no regulation that compels voters to take a position can pass constitutional muster.” – Opinion. On August 28, 2013, the Court struck down Colorado’s Constitutional provision known as the Prior Participation Requirement (PPR) as violative of the US Constitution. This opinion explains why. The Court exercised its original jurisdiction to answer an interrogatory from the Governor because a citizen’s right to vote is the essence of a democratic society. The Court then determined that the PPR violated the First and Fourteenth Amendments because it compels speech on the recall question and nullifies a vote on the successor question. The dissenters would not have answered “this hypothetical question” and disagreed that prior participation compels speech once a voter decides to vote.



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In Re: Interrogatory Propounded by Governor John Hickenlooper Concerning the Constitutionality of Certain Provisions of Article XXI, § 3 of the Constitution of the State of Colorado

“Every vote counts!” (fine print: except in the event of a recall election, in which case said vote may not be counted under certain conditions).

Article VI, section 3 of the Colorado Constitution permits the  the Colorado Supreme Court to give “its opinion upon important questions upon solemn occasions” when requested to do so by the Governor or legislator.

On August 23, 2013, the Governor submitted a question to the Court related to the constitutionality under the US Constitution of a provision in the Colorado Constitution regarding recall elections.

Colorado Constitution Article XXI, Section 3 addresses recall elections. It divides the ballot into 2 parts:

The first question must be “‘Shall (name of person against whom the recall petition is filed) be recalled from the office of (title of the office)?’ Following such question shall be the words, ‘Yes’ and ‘No’.” CO. Const. Art XXI, sec. 3.

The second part of the ballot must ask who should succeed the person sought to be recalled, followed by a list the names of those person nominated as candidates.

But, the Section 3 goes on to state that “no vote cast shall be counted for any candidate for such office, unless the voter also voted for or against the recall of such person sought to be recalled from said office. ” The effect is that a vote for a candidate will not be counted unless the voter also votes “Yes” or “No” on the recall question.

The Fourteenth Amendment to the US Constitution protects voters rights, including the right to have a vote counted.  The First Amendment of the US Constitution protects a voters right not to vote, because requiring a person to vote is unconstitutional compelled speech.

In a challenge related to the recall of California Governor Grey Davis, a United States District Court in the Southern District of California found a provision in the California Constitution that was virtually identical to Article XXI, section 3 of the Colorado Constitution, violated the First and Fourteenth Amendments of the US Constitution in  Partnoy v. Shelley, 277 F. Supp. 2d 1064 (S.D. Cal. 2003).

With these concerns in mind, the Governor asked the Colorado Supreme Court the following question:  “Colorado Constitution Article XXI, § 3 requires an elector who wishes to vote for a successor candidate in a recall election to also cast a ballot on the recall issue. Is this requirement consistent with the First and Fourteenth
Amendments to the United States Constitution?”

In a short ORDER, the Colorado Supreme Court said NO: “The provision in Article XXI, Section 3, of the Constitution of the State of Colorado stating that “no vote cast shall be counted for any candidate for such office, unless the voter also voted for or against the recall of such person sought to be recalled from said office, conflicts with the First and Fourteenth Amendments to the United States Constitution. We therefore answer the Interrogatory in the negative.”

The Court will issue its full opinion at a later date.

On October 21, 2013, the Court issued its full opinion, summarized HERE.

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Filed under Commentary, Constitutional

Taxpayers for Public Education and Cindra Barnard, et. al. v. Douglas County School District; Douglas County Board of Education; Colorado State Board of Education; and Colorado Department of Education, and Florence and Derrick Doyel, et. al. Intervenors, 2012COA20 (February 28, 2013)

Money merely represents value; but it has come to symbolize so much more. Here, the Douglas County Public School District created a voucher system that gives taxpayer money to private and/or religious schools. The trial court held it was unconstitutional. The court of appeals reversed based on 4 conclusions: 1) courts may not inquire into the extent of religious instruction, 2) religious institutions are not directly benefited, 3) parents directed the funds, and 4) the system gave parents neutral funding choices that maintained the free educational system. The court also held Plaintiffs lacked standing to enforce a statute. It avoided deciding whether Colorado’s constitutional religion provisions were coextensive with the First Amendment. The dissent concluded the system was a pipeline of public money to religious schools, thus violating Colorado’s Constitution.





Filed under Appellate Review Challenged, Constitutional, Government