Yesterday, backers of Amendment 64, the Regulate Marijuana Like Alcohol Act, went to court over changes in Blue Book language they say were made against the will of legislators. Another hearing has been set for tomorrow, but advocates say the appearance can be avoided with a little cooperation from legislative staffers -- which doesn't seem to be forthcoming.
As we've reported, the state's legislative council held a hearing last week that excised the following three sentences from the pro-Amendment 64 section of the Blue Book, a ballot guide provided to state voters:
The use of marijuana by adults may be less harmful than the use of alcohol or tobacco, both of which are already legal for adults to use and are regulated by the state. Furthermore, marijuana may be beneficial for individuals with certain debilitating conditions. The consequences of burdening adults with a criminal record for possession of small amounts of marijuana are too severe, and there are better uses for state resources than prosecuting such low-level crimes.
According to proponents, many of the legislators on the council thought they were approving the removal of two words from previous sentences, not the elimination of this text block -- an edit that creates an imbalance between the arguments for the measure (206 words) versus those against it (366 words).
Given reports that the Blue Book was headed to the printer yesterday, the Amendment 64 campaign filed a lawsuit asking for a temporary restraining order to delay printing and a preliminary injunction that would result in either re-inserting the nixed sentences or holding a new legislative council hearing to address the situation.
In the end, Denver District Court Senior Judge Leonard Plank put off printing of the Blue Book until no sooner than Wednesday evening, after another hearing at which both sides will be able to address the suit. That's good news, says Rob Corry, the attorney representing the Amendment 64 campaign.
"Our goal was to stop the printing process of the Blue Book so we could sort out these issues," he says, "and that's what we accomplished yesterday. We got a 48-hour reprieve."
Getting Plank to grant a preliminary injunction is a bigger hill to climb, Corry concedes. "It's extraordinary relief," he notes. "We've gotten it before against the government, but it's always difficult to take the government on, since they have some legal principles at their disposal they think they can use" -- namely the assertion that the judicial branch can't intervene in a legislative matter because of the constitutional separation of powers. "But we think we're right, because we're trying to uphold the actual intent of the legislators who were on the legislative council."
How so? The motion that allowed the sentences to be axed needed approval by two-thirds of the members, "and two-thirds of them did not want to excise the meat of our first argument in favor of the initiative," Corry maintains. "Somewhere along the line, someone was either misled or severely mistaken, and we think the courts can correct that."
Continue reading for the No on 64 response to the lawsuit and more. Smart Colorado, the No on 64 campaign, has already attacked this approach, putting out a press release headlined, "Recreational Marijuana Legalization Effort Already Wasting Taxpayer Dollars and Time on Lawsuit." Included is the following statement from No on 64's Roger Sherman: "This is exactly what employers in Colorado are concerned about -- an endless stream of frivolous and expensive lawsuits caused by this poorly drafted proposal."
Corry regards this line of reasoning to be hypocritical in the extreme. "It's quite hysterical for the other side to condemn a single court case when there have been literally thousands, and probably tens of thousands, of cases brought to the criminal courts because marijuana is criminalized. If they're saying that going to court is a waste of time, they've just accused the prohibition industrial complex of a colossal waste of time, because we have defendant after defendant who has to stand up and answer charges about marijuana. They should probably have a conversation with the twenty-some DAs in the State of Colorado to encourage them to stop going to court thousands of times on these cases."
At the same time, Corry says the Amendment 64 supporters would be happy to avoid tomorrow's hearing if the deleted language is put back into the Blue Book -- and he says there's a way to do it. How?
According to Corry, "a statute we site in our brief says that the legislative council staff" -- represented by Mike Mauer, the staff director -- "can put it back."
Hence, an e-mail sent to Mauer this morning by Amendment 64 proponent Brian Vicente. The entire message is on view below, but it basically outlines the ways in which Mauer could act to restore the balance of the Blue Book without having to drag the matter through court. It also gave him a deadline of 10:30 a.m. today to respond. However, that time passed without a reply.
If the hearing goes forward, as it now appears it will, Corry expects to feature testimony from Representative Mark Ferrandino, a council member who unsuccessfully tried to undo the removal of the sentences. "Representative Ferrandino was ready to testify by telephone yesterday, if need be," he adds, "because he understands that the Blue Book carries a lot of weight with voters. We have very educated voters in Colorado -- they do read the Blue Book, and the imbalance in the arguments is striking. And for the committee to just gut our first argument is unfair."
Does Corry think the removal of this language was a clever political tactic on the part of council members who oppose Amendment 64? Or a simple misunderstanding?
"I'm still waiting for their explanation on that," he replies. "We hopefully will learn what happened on Wednesday. But I don't think democracy ought to be conducted by mistake or by trickery or by obfuscating the real merits of an issue one way or the other. And I don't think the legislature wants to deprive the voters of the arguments in favor of the initiative."
Continue to read Brian Vicente's letter to Mike Mauer and the complete text of the lawsuit.
Brian Vicente's e-mail to Mike Mauer:
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Director Mauer --
I am writing with the hope that we can settle our dispute over the blue book, ending the litigation in which we are currently engaged. We merely seek a fair outcome, and believe what we are proposing below is entirely fair. We hope you will agree.
We believe it is important to examine this situation objectively and with a desire to assess the actual intent of the members of the committee you direct. Amy Zook's e-mail of September 7 focused on the technicalities of the votes related to paragraph 1 in the Arguments For section. Any intellectually honest assessment of the September 5 hearing, however, leads to the clear conclusion that there were *not* 12 members who wanted to delete the last three sentences of that staff-prepared paragraph. This is clearly demonstrated by the second vote, in which six (or eight) members of the committee voted to insert those sentences back in. This means that only seven (or five) members of the committee actually wanted the last three sentences removed.
It seems that as the Director of the Legislative Council, your primary responsibility with respect to the blue book is to ensure that the process and the book are fair and impartial. Hiding behind technicalities, while knowing that there was not true two-thirds support for removing the final three sentences of paragraph 1, is far from fair and impartial.
We are hoping that you will choose what we believe is the most fair means of resolving this situation: simply survey the 13 members who were present on September 13 and have them say, yes or no, whether they believe the final three sentences from paragraph 1 should be deleted. If 12 of these members indicate that they want to remove the three sentences, then they can and should be removed. If not, the staff-prepared three sentences should remain in the blue book.
Our opponents in the No on 64 campaign are complaining that this situation is wasting taxpayer dollars on litigation. If you are not moved by our pleas for fairness, we hope that you will at least respect their opinion and will end this litigation before the hearing tomorrow by simply surveying the 13 members. We are confident you will find that there are not 12 members in support of removing the sentences. You can then, with the power delegated to you as Director, reinsert the three sentences and begin the printing of the blue book.
Please inform me by 10:30 this morning whether you are willing to survey the 13 members present on September 5 in order to resolve this situation and settle the pending legal action. If we have not heard back from you in the affirmative by that time, we will notify the media that we attempted to settle this dispute amicably and fairly, but you rejected our reasonable proposal.
Brian Vicente, Co-Director Campaign to Regulate Marijuana Like Alcohol
More from our Marijuana archive: "Marijuana: Amendment 64 Blue Book changes, legislator criticism don't worry proponent."