Colorado Constitution, Article XVIII

Section 14. Medical use of marijuana for persons suffering from debilitating medical conditions.

(1) As used in this section, these terms are defined as follows:

(a) “Debilitating medical condition” means:
(I) Cancer, glaucoma, positive status for human immunodeficiency virus, or acquired immune deficiency syndrome, or treatment for such conditions;
(II) A chronic or debilitating disease or medical condition, or treatment for such conditions, which produces, for a specific patient, one or more of the following, and for which, in the professional opinion of the patient’s physician, such condition or conditions reasonably may be alleviated by the medical use of marijuana: cachexia; severe pain; severe nausea; seizures, including those that are characteristic of epilepsy; or persistent muscle spasms, including those that are characteristic of multiple sclerosis; or
(III) Any other medical condition, or treatment for such condition, approved by the state health agency, pursuant to its rule making authority or its approval of any petition submitted by a patient or physician as provided in this section.

(b) “Medical use” means the acquisition, possession, production, use, or transportation of marijuana or paraphernalia related to the administration of such marijuana to address the symptoms or effects of a patient’s debilitating medical condition, which may be authorized only after a diagnosis of the patient’s debilitating medical condition by a physician or physicians, as provided by this section.

(c) “Parent” means a custodial mother or father of a patient under the age of eighteen years, any person having custody of a patient under the age of eighteen years, or any person serving as a legal guardian for a patient under the age of eighteen years.

(d) “Patient” means a person who has a debilitating medical condition.

(e) “Physician” means a doctor of medicine who maintains, in good standing, a license to practice medicine issued by the state of Colorado.

(f) “Primary care-giver” means a person, other than the patient and the patient’s physician, who is eighteen years of age or older and has significant responsibility for managing the well-being of a patient who has a debilitating medical condition.

(g) “Registry identification card” means that document, issued by the state health agency, which identifies a patient authorized to engage in the medical use of marijuana and such patient’s primary care-giver, if any has been designated.

(h) “State health agency” means that public health related entity of state government designated by the governor to establish and maintain a confidential registry of patients authorized to engage in the medical use of marijuana and enact rules to administer this program.

(i) “Usable form of marijuana” means the seeds, leaves, buds, and flowers of the plant (genus) cannabis, and any mixture or preparation thereof, which are appropriate for medical use as provided in this section, but excludes the plant’s stalks, stems, and roots.

(j) “Written documentation” means a statement signed by a patient’s physician or copies of the patient’s pertinent medical records.

(2) (a) Except as otherwise provided in subsections (5), (6), and (8) of this section, a patient or primary care-giver charged with a violation of the state’s criminal laws related to the patient’s medical use of marijuana will be deemed to have established an affirmative defense to such allegation where:
(I) The patient was previously diagnosed by a physician as having a debilitating medical condition;
(II) The patient was advised by his or her physician, in the context of a bona fide physician-patient relationship, that the patient might benefit from the medical use of marijuana in connection with a debilitating medical condition; and
(III) The patient and his or her primary care-giver were collectively in possession of amounts of marijuana only as permitted under this section.
This affirmative defense shall not exclude the assertion of any other defense where a patient or primary care-giver is charged with a violation of state law related to the patient’s medical use of marijuana.

(b) Effective June 1, 1999, it shall be an exception from the state’s criminal laws for any patient or primary care-giver in lawful possession of a registry identification card to engage or assist in the medical use of marijuana, except as otherwise provided in subsections (5) and (8) of this section.

(c) It shall be an exception from the state’s criminal laws for any physician to:
(I) Advise a patient whom the physician has diagnosed as having a debilitating medical condition, about the risks and benefits of medical use of marijuana or that he or she might benefit from the medical use of marijuana, provided that such advice is based upon the physician’s contemporaneous assessment of the patient’s medical history and current medical condition and a bona fide physician-patient relationship; or
(II) Provide a patient with written documentation, based upon the physician’s contemporaneous assessment of the patient’s medical history and current medical condition and a bona fide physician-patient relationship, stating that the patient has a debilitating medical condition and might benefit from the medical use of marijuana.
No physician shall be denied any rights or privileges for the acts authorized by this subsection.

(d) Notwithstanding the foregoing provisions, no person, including a patient or primary care-giver, shall be entitled to the protection of this section for his or her acquisition, possession, manufacture, production, use, sale, distribution, dispensing, or transportation of marijuana for any use other than medical use.

(e) Any property interest that is possessed, owned, or used in connection with the medical use of marijuana or acts incidental to such use, shall not be harmed, neglected, injured, or destroyed while in the possession of state or local law enforcement officials where such property has been seized in connection with the claimed medical use of marijuana. Any such property interest shall not be forfeited under any provision of state law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense or entry of a plea of guilty to such offense. Marijuana and paraphernalia seized by state or local law enforcement officials from a patient or primary care-giver in connection with the claimed medical use of marijuana shall be returned immediately upon the determination of the district attorney or his or her designee that the patient or primary care-giver is entitled to the protection contained in this section as may be evidenced, for example, by a decision not to prosecute, the dismissal of charges, or acquittal.

(3) The state health agency shall create and maintain a confidential registry of patients who have applied for and are entitled to receive a registry identification card according to the criteria set forth in this subsection, effective June 1, 1999.

(a) No person shall be permitted to gain access to any information about patients in the state health agency’s confidential registry, or any information otherwise maintained by the state health agency about physicians and primary care-givers, except for authorized employees of the state health agency in the course of their official duties and authorized employees of state or local law enforcement agencies which have stopped or arrested a person who claims to be engaged in the medical use of marijuana and in possession of a registry identification card or its functional equivalent, pursuant to paragraph (e) of this subsection (3). Authorized employees of state or local law enforcement agencies shall be granted access to the information contained within the state health agency’s confidential registry only for the purpose of verifying that an individual who has presented a registry identification card to a state or local law enforcement official is lawfully in possession of such card.

(b) In order to be placed on the state’s confidential registry for the medical use of marijuana, a patient must reside in Colorado and submit the completed application form adopted by the state health agency, including the following information, to the state health agency:
(I) The original or a copy of written documentation stating that the patient has been diagnosed with a debilitating medical condition and the physician’s conclusion that the patient might benefit from the medical use of marijuana;
(II) The name, address, date of birth, and social security number of the patient;
(III) The name, address, and telephone number of the patient’s physician; and
(IV) The name and address of the patient’s primary care-giver, if one is designated at the time of application.

(c) Within thirty days of receiving the information referred to in subparagraphs (3) (b) (I)-(IV), the state health agency shall verify medical information contained in the patient’s written documentation. The agency shall notify the applicant that his or her application for a registry identification card has been denied if the agency’s review of such documentation discloses that: the information required pursuant to paragraph (3) (b) of this section has not been provided or has been falsified; the documentation fails to state that the patient has a debilitating medical condition specified in this section or by state health agency rule; or the physician does not have a license to practice medicine issued by the state of Colorado. Otherwise, not more than five days after verifying such information, the state health agency shall issue one serially numbered registry identification card to the patient, stating:
(I) The patient’s name, address, date of birth, and social security number;
(II) That the patient’s name has been certified to the state health agency as a person who has a debilitating medical condition, whereby the patient may address such condition with the medical use of marijuana;
(III) The date of issuance of the registry identification card and the date of expiration of such card, which shall be one year from the date of issuance; and
(IV) The name and address of the patient’s primary care-giver, if any is designated at the time of application.

(d) Except for patients applying pursuant to subsection (6) of this section, where the state health agency, within thirty-five days of receipt of an application, fails to issue a registry identification card or fails to issue verbal or written notice of denial of such application, the patient’s application for such card will be deemed to have been approved. Receipt shall be deemed to have occurred upon delivery to the state health agency, or deposit in the United States mails. Notwithstanding the foregoing, no application shall be deemed received prior to June 1, 1999. A patient who is questioned by any state or local law enforcement official about his or her medical use of marijuana shall provide a copy of the application submitted to the state health agency, including the written documentation and proof of the date of mailing or other transmission of the written documentation for delivery to the state health agency, which shall be accorded the same legal effect as a registry identification card, until such time as the patient receives notice that the application has been denied.

(e) A patient whose application has been denied by the state health agency may not reapply during the six months following the date of the denial and may not use an application for a registry identification card as provided in paragraph (3) (d) of this section. The denial of a registry identification card shall be considered a final agency action. Only the patient whose application has been denied shall have standing to contest the agency action.

(f) When there has been a change in the name, address, physician, or primary care- giver of a patient who has qualified for a registry identification card, that patient must notify the state health agency of any such change within ten days. A patient who has not designated a primary care-giver at the time of application to the state health agency may do so in writing at any time during the effective period of the registry identification card, and the primary care-giver may act in this capacity after such designation. To maintain an effective registry identification card, a patient must annually resubmit, at least thirty days prior to the expiration date stated on the registry identification card, updated written documentation to the state health agency, as well as the name and address of the patient’s primary care-giver, if any is designated at such time.

(g) Authorized employees of state or local law enforcement agencies shall immediately notify the state health agency when any person in possession of a registry identification card has been determined by a court of law to have willfully violated the provisions of this section or its implementing legislation, or has pled guilty to such offense.

(h) A patient who no longer has a debilitating medical condition shall return his or her registry identification card to the state health agency within twenty-four hours of receiving such diagnosis by his or her physician.

(i) The state health agency may determine and levy reasonable fees to pay for any direct or indirect administrative costs associated with its role in this program.

(4) (a) A patient may engage in the medical use of marijuana, with no more marijuana than is medically necessary to address a debilitating medical condition. A patient’s medical use of marijuana, within the following limits, is lawful:
(I) No more than two ounces of a usable form of marijuana; and
(II) No more than six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana.

(b) For quantities of marijuana in excess of these amounts, a patient or his or her primary care-giver may raise as an affirmative defense to charges of violation of state law that such greater amounts were medically necessary to address the patient’s debilitating medical condition.

(5) (a) No patient shall:
(I) Engage in the medical use of marijuana in a way that endangers the health or well-being of any person; or
(II) Engage in the medical use of marijuana in plain view of, or in a place open to, the general public.

(b) In addition to any other penalties provided by law, the state health agency shall revoke for a period of one year the registry identification card of any patient found to have willfully violated the provisions of this section or the implementing legislation adopted by the general assembly.

(6) Notwithstanding paragraphs (2) (a) and (3) (d) of this section, no patient under eighteen years of age shall engage in the medical use of marijuana unless:
(a) Two physicians have diagnosed the patient as having a debilitating medical condition;
(b) One of the physicians referred to in paragraph (6) (a) has explained the possible risks and benefits of medical use of marijuana to the patient and each of the patient’s parents residing in Colorado;
(c) The physicians referred to in paragraph (6) (b) has provided the patient with the written documentation, specified in subparagraph (3) (b) (I);
(d) Each of the patient’s parents residing in Colorado consent in writing to the state health agency to permit the patient to engage in the medical use of marijuana;
(e) A parent residing in Colorado consents in writing to serve as a patient’s primary care-giver;
(f) A parent serving as a primary care-giver completes and submits an application for a registry identification card as provided in subparagraph (3) (b) of this section and the written consents referred to in paragraph (6) (d) to the state health agency;
(g) The state health agency approves the patient’s application and transmits the patient’s registry identification card to the parent designated as a primary care-giver;
(h) The patient and primary care-giver collectively possess amounts of marijuana no greater than those specified in subparagraph (4) (a) (I) and (II); and
(i) The primary care-giver controls the acquisition of such marijuana and the dosage and frequency of its use by the patient.

(7) Not later than March 1, 1999, the governor shall designate, by executive order, the state health agency as defined in paragraph (1) (g) of this section.

(8) Not later than April 30, 1999, the General Assembly shall define such terms and enact such legislation as may be necessary for implementation of this section, as well as determine and enact criminal penalties for:
(a) Fraudulent representation of a medical condition by a patient to a physician, state health agency, or state or local law enforcement official for the purpose of falsely obtaining a registry identification card or avoiding arrest and prosecution;
(b) Fraudulent use or theft of any person’s registry identification card to acquire, possess, produce, use, sell, distribute, or transport marijuana, including but not limited to cards that are required to be returned where patients are no longer diagnosed as having a debilitating medical condition;
(c) Fraudulent production or counterfeiting of, or tampering with, one or more registry identification cards; or
(d) Breach of confidentiality of information provided to or by the state health agency.

(9) Not later than June 1, 1999, the state health agency shall develop and make available to residents of Colorado an application form for persons seeking to be listed on the confidential registry of patients. By such date, the state health agency shall also enact rules of administration, including but not limited to rules governing the establishment and confidentiality of the registry, the verification of medical information, the issuance and form of registry identification cards, communications with law enforcement officials about registry identification cards that have been suspended where a patient is no longer diagnosed as having a debilitating medical condition, and the manner in which the agency may consider adding debilitating medical conditions to the list provided in this section. Beginning June 1, 1999, the state health agency shall accept physician or patient initiated petitions to add debilitating medical conditions to the list provided in this section and, after such hearing as the state health agency deems appropriate, shall approve or deny such petitions within one hundred eighty days of submission. The decision to approve or deny a petition shall be considered a final agency action.

(10) (a) No governmental, private, or any other health insurance provider shall be required to be liable for any claim for reimbursement for the medical use of marijuana.

(b) Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.

(11) Unless otherwise provided by this section, all provisions of this section shall become effective upon official declaration of the vote hereon by proclamation of the governor, pursuant to article V, section (1) (4), and shall apply to acts or offenses committed on or after that date.

Source: Initiated 2000: Entire section added, effective upon proclamation of the Governor, L. 2001, p. 2379, December 28, 2000.

Editor’s note: This section was added by an initiated measure and numbered as section 14 as it appeared on the ballot, which leaves a gap between sections 12b and 14.
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By Karen P. Tandy, Administrator, U.S. DEA
Source: Denver Post

USA — Jessica Peck Corry hopes her daughter will never smoke marijuana. Since that’s the case, she should hope it remains illegal. The American Academy of Pediatrics opposes the legalization of marijuana, cautioning that “any change in the legal status of marijuana, even if limited to adults, could affect the prevalence of use among adolescents.”
Marijuana is against the law because it’s a dangerous, addictive drug.

This is a health issue. According to the American Lung Association, marijuana smoke contains 50 to 70 percent more cancer-causing material than cigarette smoke. A June United Nations report refers to cannabis use as a “pandemic,” noting an increase in cannabis- related health damage. This might explain why more teens now enter treatment for marijuana dependency than for all other drugs combined, including alcohol.

Today’s marijuana is at least eight times more potent than marijuana of the 1970s. Accordingly, thousands of adolescents, whose brains are still developing, suffer from depression, memory impairment and diminished judgment because of marijuana.

Under most legalization plans, drugs would remain illegal for those under 21. But nearly a third of current drug users are teens - so a black market would still exist to supply them.

You only need to look at Prohibition to see that criminalizing an activity suppresses it, and legalization increases it. During Prohibition, alcohol consumption fell almost 60 percent and related liver cirrhosis and deaths fell dramatically. Today, alcohol consumption is more than three times greater than during Prohibition, and is estimated to cost our country at least $184 billion a year in lost productivity, crime, and health-care costs.

In addition to directing the DEA, I’m a soccer mom, too. I’m doing everything possible to keep drugs away from my own children and everyone else’s - not making drugs easier to get.

Note: Re: “One soccer mom’s take on the drug war,” June 28 Colorado Voices column.

Karen P. Tandy, Administrator, U.S. Drug Enforcement Administration

One soccer mom’s take on the drug war
By Jessica Peck Corry

I hope my daughter will never smoke marijuana. Regardless of whether she does one day, I know one thing for sure: Keeping it illegal can only harm her future.

Since 1998, the Office of National Drug Control Policy has spent more than $2 billion in taxpayer dollars on twin advertising campaigns seeking to discourage marijuana use. The first speaks to parents, calling them the “Anti-Drug.” It fails before it begins. Good parents are going to talk to their children about drugs. All the feel-good ads in the world aren’t going to get indifferent parents to engage in such an awkward but essential dialogue.

The second campaign fails as well. In these, youthful but sophisticated graphics tell kids not to use marijuana. If there is one sure way to get adolescents to smoke pot, tell them that the government and their parents don’t want them to. In fact, a recently published national study indicates that after viewing commercials for this campaign, young people were more likely to exhibit positive responses about the drug.

Politicians whisper quietly behind closed doors about the insanity of the drug war. Neither party, however, has had the courage to take a stand against prohibition publicly. Just imagine if the $2 billion invested in these ads - or the billions more spent prosecuting peaceful marijuana users every year - had been diverted instead into tuition grants for needy students or back to taxpaying parents who could directly invest in college funds.

Earlier this year, many Colorado Republicans - myself included - expressed outrage against a new statewide smoking ban, saying it runs contrary to our American ethos of individual rights, private property rights, and personal responsibility. But where is the GOP’s outrage now as the government spends billions to tell people they can’t make the decision to use marijuana, a drug proven to be less harmful than cigarettes?

Democrats are no less guilty. They silently watch as our government’s addiction to prohibition becomes a national epidemic, taking money out of the pockets of working families and sending thousands behind bars every year.

Both parties do nothing because they believe in the same urban myth. They know they must get the “soccer mom” vote if they want to win, but they are confused on how to achieve this. Their logic goes like this: Moms don’t like drugs. Moms don’t want their kids to use drugs. Do not advocate legalization or decriminalization if you want moms to vote for your party.

This strategy is tied to reliable studies demonstrating that women are now the decisionmakers in most American families. Just as mom decides which brand of toilet paper to buy for her family, she increasingly plays decisionmaker when it comes to voting. Democrats and Republicans alike believe they would gain nothing by advocating an end to prohibition, but both have failed to consider that they might just gain votes if they could learn to speak to mothers about drugs in a way that they could relate to.

Parents across America are trying to find a way to fund college. By legalizing marijuana, taxing it, and turning this revenue into college scholarships and treatment programs, the future of every child could be just a little bit brighter.

Compare this with the system we have now. Marijuana prohibition, violated by millions every year, has become the laughing stock of American public policy. Kids have seen first-hand that it’s not as damaging as they’ve been led to believe. In the process, they begin to believe that some laws aren’t meant to be obeyed. This is by far prohibition’s most damaging side effect and only makes the job of being a mom that much tougher.

When I sit my daughter down to talk about marijuana, I’m not going to sugar-coat the facts. Marijuana can be addictive and destructive - just as alcohol can be - when abused. I’m going to let her know that life is exciting enough without turning to drugs for fun. She will learn that every law should be respected and that she should work to change those she believes are unjust.

At the end of the day, our government knows it cannot enforce marijuana prohibition. In the absence of being able to do so, it sends the damaging message to our young people that marijuana should be illegal simply because “I’m the government, and I said so.” Moms know better - and may ultimately be the single key to bringing sanity back to American drug policy.

Jessica Peck Corry (Jessica@i2i.org) is a public policy analyst with the Independence Institute, where she specializes in civil rights, higher education, and land use policy. This column originally appeared in The Denver Post on June 28, 2006.

Case Stirs the Pot on Medical Law
Rocky Mountain News
Nancy Loftholm
Januay 31, 2006

A fire at Ryan Margenau’s Gunnison townhouse last spring ignited a court case that made him an unwitting pioneer for medical marijuana in Colorado.

Out of town at the time of the fire, Margenau directed officers by phone to his garage, where combustibles were stored. The officers also found Margenau’s medication for chronic back pain stemming from a car accident—four marijuana plants thriving under a grow light in a cupboard, as well as less than an ounce of dried and concentrated marijuana.

Margenau, who used marijuana under a doctor’s order but wasn’t on the state registry, was arrested upon his return and charged with four felony counts of possession and cultivation. A costly nine-month legal ordeal ensued.

In Colorado’s first medical-marijuana trial, Margenau was acquitted last month by a jury in conservative, ranching-based Gunnison County. Medical-marijuana advocates called it a landmark victory. Law enforcement labeled it a good example of why the medical-marijuana initiative approved by voters in 2000 is flawed.

“This should put a pall on prosecutors and law enforcement for pursuing these cases,” said Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws.

“One of the lessons that came out of this trial was, in my opinion, how poorly drafted the medical-marijuana initiative was,” said the prosecutor in the case, Deputy District Attorney Geoff Nims.

The state doesn’t require that a person be on the registry. A verifiable disability or illness and a physician’s recommendation are enough to be within the law. The measure also attempts to limit patients to no more than six marijuana plants at varying levels of maturity.

Nims said the issue could be simplified if marijuana were prescribed by doctors in the same manner as other drugs.

Margenau had been using the drug since the summer of 2004 after he became fed up with the narcotics that doctors had prescribed for the pain caused by 14 herniated discs and four displaced ribs suffered in a car accident.

Margenau’s attorney, Robert Corey of Denver, who handles most of Colorado’s medical-marijuana cases, called the case “a victory for medical-marijuana users across the state” and also “a victory for compassion and … for the voters who voted this in.”

Corey said other such cases have been dismissed before they went to trial. Charges are never brought in many other cases when patients show medical-marijuana registry cards or prove a medical need.

Margenau said he elected to stay off the Colorado Medical Marijuana Registry for fear that it could bring unwanted law enforcement attention.

Now, he’s one of the 713 Coloradans who’ve signed up but said he continues to look over his shoulder as he treats his ailing back with the drug. He worries that the muddle of state and federal marijuana laws could land him in trouble again. Any marijuana possession is still a crime under federal law.

“I am terrified,” said Margenau, who had faced a possible two- to six-year prison sentence. “I don’t grow my own medicine anymore. I’m now spending money to buy it from a caregiver in Denver.”

He said marijuana hasn’t proved to be a perfect pain antidote, but drugs like OxyContin and Talwin made him woozy, lightheaded and nauseated without being very effective. Margenau, a 2000 graduate of Western State College in Gunnison, said that while using those drugs he had difficulty working at any of his three jobs—property manager, liquor-store clerk and supervisor for a cleaning company. He said he tried marijuana after a friend’s father told him he had used it and found relief from chronic pain without the side effects of synthetic narcotics.

Corey said there is still confusion about what medical-marijuana patients need to do in Colorado.

“There is a little bit of an educational process going on. Medical marijuana goes against the grain of what prosecutors and law enforcement have been doing for so long,” he said.

“It’s an ambiguous law at best. It seems to be the trend that marijuana is in the same position now that alcohol was in during Prohibition,” said Gunnison County Sheriff Rick Murdie, who said Margenau would not have been arrested if he had been on the registry—or possibly if he had immediately made it clear that he was using marijuana under a doctor’s order.

Margenau, who spent more than $13,000 on attorney fees and lost plants valued at more than $30,000 by law enforcement, is considering other legal action to recoup his losses, but he said he’s happy for now to have his medicine.

“Not even marijuana helps all the time, but it allows me to live,” Margenau said. “I can do things now. I can get relief.”

On July 11, 2006, Robert and Jessica Corry hosted a large group of supporters and friends at their home to raise funds for the SAFER initiative to legalize under one ounce of marijuana statewide. Attendees included Uncle Nasty from 106.7 KBPI, Allen F. St. Pierre, Executive Director of NORML, Mason Tvert and Steve Fox of SAFER, and a number of Mr. Corry’s former and present clients, many of whom are emerging leaders in Colorado’s anti-prohibition movement.

Jessica Corry electrified the gathering with her remarks about being a “pro-life conservative Republican who is also against our government’s expensive and failed effort to criminalize marijuana.” Ms. Corry wrote a recent piece for the Denver Post as a mother against prohibition, and was attacked by Karen Tandy, Administrator of the U.S. Drug Enforcement Administration. The DEA’s attack has galvanized the pro-freedom movement in Colorado, and hopes are high that the required number of signatures can be gathered in time to put the issue of legalization to Colorado’s voters.

FasTracks foes’ views “diluted”
Appeals court asked to void approval of $4.7 billion project
By Jeffrey Leib
Denver Post Staff Writer

05/03/2006 03:29:47 AM MDT

Opponents of RTD’s FasTracks plan on Tuesday asked Colorado’s second-highest court to void the 1 1/2-year-old election that authorized the transit expansion because what they say was a phony ballot summary was mailed to voters before the election.

Their lawsuit has stalled bond sales for the $4.7 billion project, costing taxpayers up to $250 million over the long term, according to RTD.

A member of a pro-FasTracks campaign committee submitted false and misleading comments against FasTracks to state election officials to “dilute” the arguments of legitimate opponents, attorney Robert Corry Jr. told the three-judge Colorado Court of Appeals panel.

“This case is about the integrity of elections in Colorado,” Corry said, adding that the ruling “will set the rules” for all similar ballot measures in the state.

Corry represents Taxpayers Against Congestion, which led the fight against FasTracks.

The Taxpayer’s Bill of Rights (TABOR) requires that elections on tax measures have ballot summaries, including pro and con commentaries, sent to voters.

The question over the FasTracks statement is another in a string of controversies about who provides such information for local or statewide elections.

With statewide measures, nonpartisan staffers at the legislature prepare draft ballot summaries and pro and con statements, then solicit comment on the proposed text, said Pete Maysmith, executive director of the public interest group Colorado Common Cause. Legislators can also contribute to the final language sent to voters.

That legislative intervention has led some to try to change the process of preparing the resulting “blue book,” either by legislation or lawsuit.

Maysmith said his group favors removing legislators from the process.

A month and a half before the November 2004 FasTracks election, Rebecca Barnes, an official with the FasTracks Yes committee, submitted comments against the transit measure to the Colorado secretary of state.

The law requires Barnes, or anyone else, to submit comments as individual voters, without reference to affiliation.

Barnes said FasTracks was too limited and should provide rail service to Fort Collins, Colorado Springs, the mountains and along E-470.

These and other comments were folded into the con statement that was sent to voters.

As the designated election official, Regional Transportation District attorney Marla Lien prepared the pro and con summaries. Corry told the court that RTD and Lien took on the role as “editor” of the submissions and “censored the legitimate comments of real opponents.”

Lien told the judges her role was defined by law: Voters had a right to file comments and it was the government’s responsibility to accurately summarize them.

The appeals court will rule on the case at a later date.

RTD “performed the duties assigned to us” by TABOR for the FasTracks ballot summary, said RTD manager Cal Marsella, after attending Tuesday’s court session.

But Independence Institute president Jon Caldara, a leader of Taxpayers Against Congestion, said the court’s decision will affect every future tax election in the state.

If the law continues to allow false comments to be incorporated into ballot summaries, he said, “That will be standard operating procedure.”

Staff writer Jeffrey Leib can be reached at 303-820-1645 or jleib@denverpost.com.