04/29/2013 02:46 pm ET | Updated Apr 29, 2013

Amendment 64 Repeal 'Unconstitutional', Top Election Law Firm Says Of Colorado's Recreational Marijuana Law

A repeal effort that is reportedly being considered by some Colorado lawmakers may not be an option according to a top election law firm who says that the repeal proposal is "unconstitutional."

Backers of Amendment 64 released a memo today prepared by Ed Ramey of Heizer Paul Grueskin LLP which states in no uncertain terms that the proposed repeal of A64 would be invalid under the state constitution:

[T]he submission of the second component of the proposed amendment -- the constitutional repeal of the entirety of Colo. Const. art. XVII, sec. 16 [Amendment 64] -- would be unconstitutional and invalid under Colo. Const. art. XIX, sec. 2 [regarding the submission by the General Assembly of proposed amendments to the Colorado Constitution]."

The repeal effort stems from the fact that Colorado voters would be asked to weigh in on two additional 15 percent tax proposals -- state lawmakers are currently debating the regulatory structure of the recreational marijuana industry in Colorado as well as the tax rates that will be used to support it in House Bills 1317 (regulatory framework) and 1318 (taxes) which seeks a 15 percent excise tax as well as a 15 percent special sales tax.

The Associated Press's Kristen Wyatt reported that some state lawmakers fear that voters will reject one or both of the tax proposals leaving the state stuck with the tab for enforcing pot sales but without the budget to pay for it.

The House Finance Committee passed House Bill 1318 7-6 last week which seeks a 15 percent excise tax and a 15 percent special sales tax on all marijuana purchases in the state.

The repeal effort, which backers of Amendment 64 say is being pushed by lobbyist behind the scenes, reportedly adds a provision to the constitution stating that Amendment 64 would be repealed if the proposed increase in taxes related to regulation and sales were not to be approved by Colorado voters in this November's off-year election.

Ramey explains in the memo that constitutional amendments from the General Assembly must only appear on the ballot in even-numbered years. The GA can place a question on an odd-numbered year ballot only if it concerns "issues of government financing, spending, and taxation." Ramsey goes on to state that A64 had to appear on the ballot in an even-numbered year and that a "wholesale repeal" of it could only happen during an even-numbered election. Ramey warned:

Appending this [repeal] provision to the tax component of the measure would, at best, render the entire measure subject to the procedural constraints of Colo. Const. art. XIX, sec. 2, or, arguably, invalidate it altogether under the single subject requirement of Colo. Const. art. XIX.

At the end of the memo, Ramey also points out the futility of attempting a repeal during this off-year election:

Were the tax component of the measure to be rejected and the repeal component approved by the voters, it is also possible that the courts could invalidate the repeal (as being improperly submitted under Colo. Const. art. XIX, sec. 2) while sustaining the vote on the tax component (as properly submitted under Colo. Const. art. X, sec. 20), leaving the substance of Colo. Const. art. XVIII, sec. 16 wholly intact except for the tax provisions which were the genesis of the measure's consideration in the first instance.

"We are pleased to have this clear and definitive legal opinion from a highly respected law firm," Amendment 64 representative on the marijuana task force Christian Sederberg said. "This further strengthens our position that this repeal proposal is an ill-considered means of addressing the tax portion of Amendment 64. The legislature shouldn't be playing games with these important new excise and sales taxes by tying them to a separate vote on repeal of Amendment 64. This would only encourage opponents of Amendment 64 to vote no on the tax in the hope of repeal. In fact, the only possible way a marijuana tax measure will fail is if it is done as part of such a repeal scheme. Let's have a clean vote on the taxes so that they will be approved and there will be funds available to regulate the system."

Smart Colorado, a vocal proponent to marijuana legalization in Colorado, denied that they were the source of the repeal proposal but did say in a statement that they spoke with many state legislators about the repeal but that it was state lawmakers who ultimately suggested the two-part repeal proposal. Via a statement from Smart Colorado's Eric Anderson:

The legislators suggested a simple, two-part proposal. Colorado voters would first decide whether to authorize a tax regimen developed through discussions over the past several months. Should the tax measure pass, the marijuana industry would come closer to covering its regulatory costs. A second question on repeal would be decided by voters only if the tax measure failed. Ultimately, all these decisions would remain in the hands of voters. The constitutionality of the proposal was thoroughly considered by the General Assembly’s attorneys and carefully drafted to comply with the Taxpayers Bill of Rights.

Amendment 64 states that the first $40 million raised from the 15 percent excise tax would go to to school construction. And although many voters who supported A64 did so because it could raise money for schools, lawmakers are concerned that even fans of that excise tax rate and the use of its revenue could be turned off by a total tax rate that would exceed 30 percent.

Lawmakers' worries about marijuana tax and regulatory bills are understandable. Although HB-1318 passed, it did so narrowly in committee. The same is also true for HB-1317 which lays out the regulatory structure for recreational marijuana sales in the state has barely cleared two committee hearings on 6-5 votes.

However the lawmakers' fears may be unfounded. According to a new poll released today from Public Policy Polling that was provided to The Huffington Post by backers of Amendment 64, 77 percent of Colorado voters would support a 10 percent sales tax in addition to the 15 percent excise tax with only 18 percent saying they were opposed. The survey of 900 registered Colorado voters was conducted by Public Policy Polling from April 15-16.

The 15 percent special sales tax and 15 percent excise tax that is currently being debated by Colorado lawmakers would yield $90.9 million according to a new study by the Colorado Futures Center. In a statement, Amendment 64 backers said that state officials have told them that the cost to the state to enforce recreational marijuana regulations would not be greater than $30 million. Meaning that if lawmakers are really concerned about the current high proposed tax rates (15 percent sales, 15 percent excise) they could feasibly lower the sales tax to 10 percent which would still yield more than $60 million.

"If legislators are concerned that a special sales tax will not pass, they should consider reducing the tax rate to 10% instead of embracing the nuclear option proposed by anti-marijuana advocates," Tvert said in a Friday morning statement.

Read the draft resolution being circulated in the legislature here.

Any repeal effort of Amendment 64 would be a stark challenge for lawmakers since the measure is part of the state constitution and a repeal of it would have to also be constitutional. A two-thirds majority of the House and Senate is needed to place a repeal amendment on the ballot and with less than two weeks left on the legislative calendar this year, it could be nearly impossible to drum up enough support for a repeal.

No state lawmakers have spoken publicly about a repeal effort.

Colorado voters passed Amendment 64 last November making the limited sale, possession and growing of marijuana for recreational purposes legal for adults 21 and over. A64 states that adults can possess up to an ounce of pot, can grow as many as six marijuana plants at home (with only three flowering at any given time), but that home-grown marijuana can only be for personal use and cannot be sold, however, adults can gift one another up to an ounce of pot.


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