Denver’s Gorsuch in spotlight as Trump nears SCOTUS pick

President Donald Trump will announce his nomination for the United States Supreme Court Tuesday evening, filling a months-long vacancy made by the death of Justice Antonin Scalia last year.

Denver native, Judge Neil M. Gorsuch of the Tenth Circuit of Appeals (which has jurisdiction over the District of Colorado), is reportedly on the president’s short list for the bench. A graduate of Columbia University, Harvard Law School, and Oxford University, Gorsuch, 49, has a unique combination of Western roots and East Coast experience. After law school, Judge Gorsuch served as Law Clerk to Judge David Sentelle of the U.S. Court of Appeals, for the D.C. Circuit, and later as Law Clerk to Justices Byron White and Anthony Kennedy.

In 2006, President George W. Bush appointed Judge Gorsuch, then age 39, to the Tenth Circuit Court of Appeals.  Before Judge Gorsuch’s appointment to the Tenth Circuit, he was in private practice for ten years at a Washington D.C. law firm and a Principal Deputy Associate Attorney General at the Department of Justice.

Eric Citron of SCOTUSblog has described Judge Gorsuch as “the most natural successor to Justice Antonin Scalia on Trump’s shortlist, both in terms of his judicial style and his substantive approach.”  Judicial commentators note that Judge Gorsuch has a brilliant legal mind and a reputation for being an active questioner during oral argument.  Further, Judge Gorsuch’s written opinions have been known for their clarity, thorough reasoning, and commitment to a textual analysis of the law.

Since his appointment to the Tenth Circuit, Judge Gorsuch has authored numerous opinions, and received attention for his concurrence in Hobby Lobby Stores v. Sebelius and his majority opinion and concurrence in Gutierrez-Brizuela v. Lynch.  In Hobby Lobby, Judge Gorsuch sided with the company owners and held that the parties’ understanding regarding the tenets of their faith should prevail over the Affordable Care Act’s requirement that employers provide contraception insurance coverage to employees.  As a result of this opinion, Judge Gorsuch became known as a defender of religious liberties.  In Gutierrez-Brizuela, Judge Gorsuch advocated for ending the Chevron doctrine to executive branch agencies’ interpretation of the statutes they implement.  The Judge’s a position departs significantly from Supreme Court precedent dating to the 1980s.

Given Judge Gorsuch’s reputation and history on the Tenth Circuit, it is likely that if appointed and confirmed for a seat on the Supreme Court, he would uphold a conservative judicial theory in accord with principles of limited government and state’s rights—a philosophy that is strikingly similar to Justice Scalia.

Until President Trump’s nomination to the Supreme Court becomes public on Tuesday, January 31, Judge Gorsuch—and the country—patiently await to learn the future of the Court.

Co. legislature up for grabs in final days of election

The two parties’ razor-thin majorities in Colorado’s split legislature are in an increasingly precarious position in the waning days of the November election, faced with the legitimate prospect of controlling both, one, or neither of the two chamber’s, former House Republican Majority Leader Amy Stephens told ABC affiliate Denver7’s “Politics Unplugged.”

With a Republican majority of one in the upper chamber and a Democratic advantage of three in the lower, Stephens, now a Dentons principal, said the composition of the state legislature on November 9 is a question of election day ground game.

“It’s about turnout,” Stephens, who was credited with helping House Republicans win their one-seat majority in the 2010 election that saw her installed as the chamber’s number-three Republican, said before conceding that “Republicans are behind” in early voting.

Contact Amy here.

Cost-Benefit Analysis of Legalized Marijuana in Colorado shows large Emerging Gray Market

The interim committee on the Cost-Benefit Analysis of Legalized Marijuana met with some disturbing news from the Governor’s state office on marijuana regulation in Colorado.

Andrew Freedman, Director of the Marijuana Coordination for the state of Colorado, told the committee that the challenge to Amendments 20 & 64 which allows for the medical and recreational uses of marijuana is that a gray market is emerging under the guise of caregivers and patients using the ability to get the maximum 99 plants to sell for profit mostly out of state. “Even when law enforcement gets close to the bottom of finding they aren’t patients or caregivers, the criminals then flip and say “OK, we are now a cooperative – we are growing plants for our friends to assist them.” Friedman says the large loopholes created in Amendments 64 and 20 have allowed criminals to grow and sell out of state often for $5,000 to $6,000 a pound for marijuana.

The Governor’s office is exploring ways to stop the gray market simply because of exposure and risk to youth and growth of organized crime.  Guardrails mentioned by the office are in draft-proposal only and admittedly needs much more discussion.  Ideas are:

  1. Statutorily define “assist” as it exists in Amendment 64. The goal is that patients can still be assisted, but will have to grow their six plants at their residence, hopefully addressing the “cooperative” loophole.
  2. Explore a hard plant count number limit – Colorado has a 99 plant limit – far beyond any other states whose average number is 12 plants.
  3. Tie the legal ability to register as a caregiver or patient that complies with local zoning restrictions – This would allow for zoning restrictions more than financial penalties but if one is going to have the protections of Amendments 20 & 64 then you would have to meet local zoning restrictions and requirements. There could still be growing in a commercial setting but through local zoning laws.
  4. Create a low tech tagging system – something being done in Rhode Island, allowing local law enforcement to do site checks to ensure plants are actually being delivered to patients. A zip tie with a patient number where the deliverer keeps one part of the receipt and patient keeps the other.
  5. Starting a fund for local law enforcement and DA’s – so they can prosecute gray and black market cases. Law enforcement reports that they need resources to prosecute these cases, particularly needing help in rural settings where there are less resources.

The Governor’s office is considering the above as a package to address the  gray market where they’ve already seized millions of dollars in assets, guns, thousands of pounds of marijuana, thousands of dollars in cash and credit cards.  Interim committee legislation discussion will continue now through December 2016 prior to the 2017 legislative session.

“Troublemakers” Colorado Delegates come around at the end of RNC Convention

They had the term “troublemaker” as a label before they even arrived at the RNC in Cleveland.  “Troublemaker” pins were made – now a collectors item – and then there was being placed at the far back of the convention center just in case things got out of control.

A few delegates leading the charge for “Never Trump” and asking for a “conscience clause” in the Rules Committee found out that while the RNC understood their right to protest – they were not going to have it disrupt the entire convention.  A desperate media looking for anything controversial seized on one protestor in particular making her a prime story before the con
vention began.

And how did it all turn out?  Like a whimper.  The Rules Committee prevailed.  The ringleader got her 15 minutes of fame, some walking out of the convention garnered a short tweet, but in the end – the majority of Colorado delegates came around to support the Trump/Pence ticket.

RNC ConventionThe reason?  The man they pledged allegiance to himself – Ted Cruz.  Cruz’s speech started with thank-you’s and then a touching story, but as the speech went on Colorado delegates and guests got the clear sense Cruz was not going to endorse Trump – and things got as ugly.

Posted from Jeff Crank, popular radio host in Colorado Springs, CO:

“As a former candidate who lost elections and faced the choice of endorsing my opponent after a hard-fought battle, it is gut-check time for Ted Cruz.  He will either write his own ticket or write his political obituary. Time to stand up and do the right thing.”

As Cruz was booed off the stage it was clear the Colorado delegates had a choice to make.  Some continued to defend Cruz, but by the end of the convention photos popped up of delegates with Trump hats or declarations that they would support the presidential nominee.

From DC to Denver

In addition to providing updates on policy, lobbying and regulatory issues in Colorado’s legislative and executive branches, Dentons’ Colorado Government Affairs team looks at political and policy developments in Washington, DC, that are pertinent to the state. Below we discuss the difficulties that California Senator Dianne Feinstein has faced mustering support on the Hill for her water policy bill, sweeping legislation that addresses recycling, storage, desalination and grants. On the home front, we look at the Colorado legislature’s difficulty crafting budgets 25 years after the state’s voters approved TABOR, arguably the most restrictive tax and spending limitation in the country.

News and legislative highlights this week

Federal news

Feinstein grappling with difficulty of water legislation

In an attempt to maximize water supply for the drought-plagued Western states, Senator Dianne Feinstein (D-CA) introduced a sweeping water policy bill that addresses recycling, storage, desalination and grants. But Feinstein admitted to the Sacramento Bee reported that she’s been having a tough time achieving buy-in from her Senate colleagues for the $1.3 billion initiative. In fact, the effort has been more challenging than her repeated attempts to renew the Federal Assault Weapons Ban that expired in 2004. The water bill, she told the publication’s editorial board, has already undergone 26 drafts, with 43 amendments in the last version alone.

Read more in the Sacramento Bee

The EPA is adjusting its priorities in the wake of criticism to their response to the Gold King Mine spill

The EPA’s top lawyer said that in the wake of the Flint, MI, lead drinking water and Gold King mine spill crises, the agency is adjusting its priorities to put greater focus on public health issues.

Read more at Law360 (subscription required)

Colorado news

Colorado legislature is budget, budget, budget, this week

The Colorado legislature debates the state budget this week and next with this year’s budget starting in the House. The $27 billion dollar budget, crafted by the Joint Budget Committee, is always a shell game of balance with the committee eliminating $59 million in taxpayer refunds under TABOR.

Read more in the Durango Herald

Colorado rain-barrel bill back on track, advances to Senate

HB 1005 by Senator Michael Merrifield advanced allowing rain barrels to capture water under the supervision of the state engineer. Three Republicans voted against the bill in the Senate committee, but the bill will advance to the full Senate floor. The bill enjoyed broad bipartisan support in the House.

Read more in the Denver Post

Colorado AG Coffman is weighing litigation in Gold King Mine spill

Addressing leaking mines throughout the state has become a priority, while Attorney General Cynthia Coffman is still looking into litigation regarding the Gold King Mine spill from August 2015.

Read more in the Denver Post