Injunction Granted In Amendment 41 Case

Denver District Court Judge Christina Habas has granted a preliminary injunction to Plaintiffs that suspends the gift bans created by Sections 2 and 3 of Amendment 41, during the pendency of the case.  Amendment 41 was enacted by voters in the November 2006 election, and was a political hot potato in the 2007 legislative session of Colorado’s General Assembly.The trial court found, in a 41 page ruling, that the gift ban of Amendment 41 is likely to be found to impair First Amendment rights and that Senate Bill 210, enacted in the 2007 legislative session to implement and clarify Amendment 41 does not suffice to cure the First Amendment problems.

The next step in the process is for discovery and motion practice to take place in the trial court, after which the case may be resolved finally in either a “motion for summary judgment” or after a full fledged evidentiary trial.  This could take months.  At that point, the trial court will either make the preliminary injunction, or some version of it, final, or will dismiss the case.

If the trial court definitively finds that Amendment 41’s gift bans violate the First Amendment at that point, the case may be appealled to the Colorado Supreme Court.  If the trial court dismisses the action in the end, the case may be appealled to the Colorado Court of Appeals.

The court’s ruling does not impact other parts of Amendment 41, such as its limitation of lobbying for people who were recently legislators or senior government employees, and presumably, also does not prohibt the ethics commission established by Senate Bill 210 from adopting rules and enforcing other parts of Amendment 41.  It may, however, put a hold on subpeonas issued in support of investigations related to the gift ban of Amendment 41.

Full Disclosure: Andrew Oh-Willeke practices law with Anne McGihon, a state legislator and Plaintiff in this case, at the firm of McGihon & Associates, LLC.  This story has been prepared exclusively from the public record and is not based on any inside information obtained from any of the litigants in the case or their counsel.

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Andrew Oh-Willeke

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