Tag Archives: Unconstitutional

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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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

Raptor Education Foundation, Inc., v. Colorado Department of Revenue, Division of Motor Vehicles, 2012COA219 (December 27, 2012)

The individual freedom to contract, enshrined in the US and Colorado Constitutions and known as the Contract Clause, can add another case to its storied history – specialty license plates. In 2000, the Raptor Education Foundation contracted with the Department of Revenue for the exclusive right to buy a specialty plate. In 2002, the Department was court-ordered to sell the plates only to members of the REF. In 2009, the Legislature amended the law (CRS 42-3-208) to allow non-REF members to buy the plates. The REF sued. The court of appeals, after finding that the constitutional challenge could be addressed even though it was not raised in a pleading, struck down the legislation as unconstitutional. The law violated the Contracts Clause because it was not directed at a general social problem and was an unforeseeable substantial impairment to the existing contractual relationship.



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Colorado Pool Systems, Inc. and Patrick Kitowski v. Scottsdale Insurance Company and Don Hansen, 2012COA178 (October 25, 2012)

“It’s not my fault—it was an accident!” In this case, a swimming pool had to be rebuilt. An adjuster told the insured the work would be covered, but the insurer later denied coverage under a general commercial liability insurance policy. Construing the policy, the court held: 1) “accident” is an ambiguous term that means any damage not intended; 2) an “occurrence” is damage to non-defective work, but not to defective work, because defective work is required to be repaired; and 3) the Construction Professional Commercial Liability Insurance Act is retroactive, but unconstitutional as applied. The insured also brought a negligent misrepresentation claim. The court held that because “accident” was ambiguous in the policy, the claim was actionable. It was also reasonable for the insured to rely upon the adjuster’s statements as if they were fact. Summary Judgment was reversed.



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