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Word count: 6,606 COLORADO SUPREME COURT 101 West Colfax Avenue, Suite 800 Denver, CO 80202 Court of Appeals, Case Number 09CA1230; Hawthorne, Taubman & Sternberg, J.J. Appeal from the District Court, El Paso County, Colorado; Case Number 08CV6492; The Honorable G. David Miller
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A COURT USE ONLY Jr,.

Case No.: 2010SC344

Petitioners:
THE REGENTS OF THE UNIVERSITY OF COLORADO, et al. vs.

Respondents:
STUDENTS FOR CONCEALED CARRY ON CAlvIPUS, LLC, 'iYIARTHAALTMAN, JOHN MOTE, ERIC DAVIS. Attorneys for Amicus Curiae National Rifle Association: Richard A. Westfall, Reg. No. 15295 Peter J. Krumholz, Reg. No. 27741 Hale Westfall, LLP 1445 Market St., Suite 300 Denver, Colorado 80202 Telephone: (720) 904-6010 Fa'C: (720) 904-6020 E-mail: rwestfall@halewestfall.com pkrumholz@halewestfall.com BRlEF OF ANTICUS CURIAE

NATIONAL RIFLE ASSOCIATION

CLcjU( COLORADO Supr~:::ME COURT

TABLE OF CONTENTS
TABLE OF CONTENTS TABLE OF AUTHORITIES INTRODUCTION MISSION AND INTEREST ARGlJMENT OF AMICUS CURIAE , ,.,

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iv 1 1

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1.

COMPREHENSIVE FIREARtYfS LEGISLATION, THE GENERAL ASSEMBLY EXPESSL Y PROTECTED THE FUNDAl\1ENTAL RIGHT TO KEEP AND BEARARtYfS IN DEFENSE OF HOME, PERSON AND PROPERTY "4 A. The Plain Language of Colo. Canst. art. II, § 13 Provides that the Right of "No Person to Keep and Bear Arms in Defense of Home, Person and Property Shall Be Called into ' Question" ; 4 The General Assembly Enacted SB 24 and SB 25 as a Comprehensive Statutory Scheme to Fully Effectuate the Constitutional Right to Keep and Bear Arms in Defense of Home, Person and Property "

IN ENACTING

B.

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C.

The General Assembly's Declaration that the Right to Keep and Bear Arms is Fundamental Foreshadowed the United States Supreme Court's Similar Determination Regarding the Second Amendment , , , . , . ,14 The General Assembly'S Policy Decision to Extend Colo. Canst. art. II, § 13 Protections to College Students Is Sound .. , , , , . , . ,', ,,

D.

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II.

CU'S ATTENrPT TO PREEMPT STATE LA vV PROTECTING THE CONSTITUTIONAL RIGHT TO KEEP AND BEAR ARl\1S IS BASED UPON FUNDANIENTAL FLAWS , ; , 17 A. CU Is a State Institution Subject to Acts by the General Assembly; The Board of Regents Exercises the Authority to "Generally Supervise" CU, and It Does Not Possess "Police Power" as It Asserts in This Court, , .. , , .. , . , ., . , ., , 17 This Case Is Governed by this Court's Decision in Ramos; SB 24 Effectuates an Express Constitutional Right to Be Enjoyed by All Citizens and in All Areas of the State, Subject Only to the Specific Limitations Delineated by the General Assembly , , , . , ,, 20

B.

III.

THE COURT OF APPEALS CORRECTLY DETER1VfINED THAT PLAINTIFFS BELOvV HAVE A CLAIM UNDER COLO. CONST. ART. II, § 13 " , ,' , 25 A. Plaintiffs Have a Viable Claim Under Colo. Const. art. II, § 13 Based on Car Carry , ," , 25 The Standard of Review Cannot Be Rational Basis " , 27 28 29

B. CONCLUSION

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

CASES
Associated Students of the Univ. of Colo. v. Regents of the University of Colo., 543 P.2d 59 (Colo; 1975) " , .. , ,.,., .. , ,.. , , 20, 21 Cf People v. Bailey, 874 N.E.2d 940, (Ill. App. 2007) "" .."." Chicago Title & Trust Co. v. Patterson, 178 P. 13 (Colo. 1919) Chwick v.lvfulvey, No. 2009-01468,2010 2010) " , " "',, 11 17

\VL 5394872, (N.Y. App. Div. Dec. 28, " " , ,, 13 19 11

City & County of Denver v. Tihen, 235 P. 777, (Colo. 1925) City of Boerne v. Flores, 521 U.S. 507, (1997). City ofClevelandv. 29, 2010)

State, No, 2010-0hio-6318, 2010 WL 5392919, (Ohio Dec, " ,,, 13 6, 7,9,10,25,27 25

City of Lakewood v. Pillow, 501 P.2d (Colo. 1972) City of Las Vegas v. Moberg, 485 P.2d 737, (N,M.App. 1971)
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Colorado Civil Rights Comm n ex rel. Ramos v, "Regents of the Univ. of Colo., 759 P.2d 726 (Colo. 1988) , "" 20, 21, 22, 23 Compare Bivens v. Six Unknown Named Agents of Fed. Bureauof Narcotics, 403 U,S. 388, 389-91"(1971) , , , 26 DiGiacinto v. Rector & Visitors of George Mason Univ., No. 091934,2011 WL 111584 (Va. Jan. 13, 2011) ".~" 16 District of Columbia v. Heller, 554 U.S. 570, (2008) Employment Div. v. Smith, 494 U.S. 872 (1990)
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4,14, 15, 17,27 " " 11

o Centro Espirita
Cir, 2004)

Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, (10th 11 14, 15 25 " 5, 6, 8,25 7 8, 9, 25 20

}llcDonald v. Chicago, 130 S. Ct. 3020 (2010) Medina v. People, 387 P.2d 733 (Colo. 1964) People v. Nakamura, 62 P.2d 246 (Colo. 1936) People v. Ford, 568, P. 2d (Colo. 1977) Robertson v. City & County of Denver, 874 P.2d 325 (Colo. 1994) State Farm Mut. Auto. Ins. Co. v. Temple, 491 P.2d 1371 (Colo. 1971)

Subryan v. Regents of the Univ. of Colo., 698 P.2d 1383 (Colo. App. 1985) ........ 19 Trinen v. City & County of Denver, 53 P.3d 754 (Colo. App, 2002) Uberoi v. Univ. of Colo. , 686 P.2d 785 (Colo. 1984) 9,10 20, 21,23

STATUTES
42 U,S.C. § 2000bb-l Colo. Rev. Stat. § 18-12-105.6 , , , 12, 13,22,23,28 24 . " : 13,23 19 12, 14,28
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Colo. Rev. Stat. § 18-12-201 to 26 (1)(e) (2010) Colo. Rev. Stat. § 18-12-103 (l)(b) Colo. Rev, Stat. § 18-12-214(4)(a)-(e) Colo. Rev. Stat. § 23-5-106(1) Co19. Rev. Stat. § 29-11.7-101 (1)

LEGISLATIVE AUTHORITIES

Colo. Const. Art. II § 3 Colo. Canst. Art. II § 13 Colo. Canst. Art. VIII § 5(1) (2) Colo. Canst. Art. IX § 12 Proceedings' of the House Committee of the Whole, 64th Gen. Assemb., Sess. (Mar. 13, 2003) (audio tape recording)

Passim Passim 18, 19,20 18 1st Reg. 17

~IISCELLAL~EOUS AUTHORITIES
CD-Boulder Policy Regarding Alcohol Use 24

ATTACHl"lENTS
House Journal, Sixty-Fourth 2003) pp.1136-37 General Assembly, ; State of Colorado (March 13, 18

VI

INTRODUCTION Colo. Const. art. II, § 13 provides: "The right of no person -tokeep and bear arms in defense of his home, person and property. " shall be called into question .... " (Emphasis added.) Among state constitutions, Colorado's constitutional protection of the individual right to keep and bear arms is one of the clearest and strongest. Under Colo. Const. art. II, § 13, the right of Coloradans to keep and bear arms is unambiguous and - the National Rifle Association respectfully asserts - fundamental. In 2003, the Colorado General Assembly enacted a comprehensive set of firearms laws for the expressly stated purpose of ensuring that Colo. Const. art. II, § 13 be viewed in fact as a fundamental right and that this right be protected for all Coloradans in all areas of the State. The University of Colorado ("CU") is a state institution subject to state laws enacted by the General Assembly. The comprehensive set of laws enacted in 2003 apply to CU just as they do to every other entity in the State of Colorado. The Court of Appeals decision was correct and should be affirmed. lVIISSION AND INTEREST OF AMICUS CURIAE

Amicus National Rifle Association of America, Inc. ("NRA") is a non-profit membership organization founded in 1871 and incorporated under the laws of New

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York, with headquarters in Fairfax, Virginia and an office in Sacramento, California. The NRA represents more than four million members and 10,700 affiliated organizational members (clubs and associations) nationwide, with 250 affiliated clubs and associations in Colorado. Among its other activities, NRA works to preserve and protect constitutional and statutory rights of gun ownership, including the right to self-defense and the right to keep and bear arms. In this amicus brief, NRA represents the interests of its respective members. NRA's purposes, as set forth in its Bylaws, include the following: To protect and defend the Constitution of the United States, especially with reference to the inalienable right of the individual American citizen guaranteed by such Constitution to acquire, possess, collect, exhibit, transport, carry, transfer ownership of, and enjoy the right to use arms, in order that the people may always be in a position to exercise their legitimate individual rights of self-preservation and defense offamily, person, and property, as well as to serve effectively in the appropriate militia for the common defense of the Republic and the individual liberty of its citizens .... NRA's interest in this case stems from the fact that a large number ofNRA members reside in the state of Colorado and those members will be affected by any ruling this Court issues that affects their fundamental right to keep and bear arms and their ability to exercise their legitimate individual rights of self-preservation and defense of family, person, and property.

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ARGUNIENT In 2003, the General Assembly determined that some local jurisdictions and the courts were not adequately protecting the right to keep and bear arms in this State. In response, the General Assembly enacted a comprehensive set of laws to effectuate Colo. Const. art. II, § 13 and made sure that this set of laws would apply uniformly "in all areas of the State" - with no exceptions except those specifically provided in the state laws themselves. Section I of this amicus brief will describe how Colo. Const. art. II, § 13 provides for an individual fundamental right to keep and bear arms and how the General Assembly enacted the law at issue to ensure uniform protection of this right throughout Colorado. Section II will demonstrate how CD)s asserted authority in this area to impose its ban on CU's property is based upon fundamentally flawed reasoning. Lastly, in Section III, amicus will describe why Plaintiffs below unquestionably have a constitutional claim to keep and bear anus in their vehicles on campus.

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I.

IN ENACTING COIVIPREHENSIVE FIREARlVIS LEGISLATION, THE GENERAL ASSEIVmLY EXPESSLY PROTECTED THE FUNDAl"VIENTAL RIGHT TO KEEP At"'ID BEAR ARl"VIS IN DEFENSE OF HOlVIE, PERSON AND PROPERTY A. The Plain Language of Colo. Const. art. II, § 13 Provides that the Right of "No Person to Keep and Bear Arms in Defense of Home, Person and Property ... Shall Be Called into Question"

Although the United States Supreme Court only recently held in District of Columbia v. Heller, 554 U.S. 570, 592 (2008) that the Second Amendment to the United States Constitution confers an individual right, it has been clear in Colorado for decades that the state constitutional right to keep and bear arms is an individual right. This is unsurprising given the differences between the Second Amendment and Colo. Const. art. II, § 13. The operative clause of the Second Amendment states simply that "the right of the people to keep and bear arms, shall not be infringed." By contrast, the right described in Colo. Const. art. II, § 13 speaks directly to the right of each individual to keep and bear arms in defense of home, person and property: The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called into question, but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. (Emphasis added.)

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Not surprisingly in light of this language, this Court long ago rejected the argument that Colo. Const. art. II, § 13 merely confers a right of "collective enjoyment for common defense." People v. Nakamura, 62 P.2d 246,247 (Colo. 1936). In Nakamura, a state statute prohibited unnaturalized foreign-born residents from hunting for any wild game in Colorado; in furtherance of this ostensible purpose, the statute also prohibited any such resident from possessing a firearm. Id. at 246. The defendant was charged with possessing a firearm in violation of the statute, and he challenged the statute based on the state constitutional right to keep and bear arms. In response, the government argued that the right conferred by Colo. Const. art. II, § 13 was merely a collective right, and that the statutory prohibition was a proper exercise of police power. Id. at 246-47. This Court soundly rejected the government's argument. In light of the right to keep and bear arms in defense of "home, person, and property," this Court held that the constitutional right confers a right on the individual, and does not distinguish between citizens and unnaturalized foreign-born residents: [The state] cannot disarm any class of persons or deprive them of the right guaranteed under [Colo. Const. art. II, § 13J to bear arms in defense of home, person, and property. The guaranty thus extended is meaningless if any person is denied the right to possess arms for such protection. Under this constitutional guaranty, there is no distinction between unnaturalized foreign-born residents and citizens. ld. at 247 (emphasis added).
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This Court again emphasized the importance of the individual right guaranteed by Colo. Canst. art. II, § 13 in City ofLakewoodv. Pillow, 501 P.2d

744 (Colo. 1972). In that case, Lakewood had enacted a municipal ordinance making it unlawful to possess a dangerous or deadly weapon. The defendant was convicted in municipal court of violating the ordinance, but the district court reversed on appeal, holding that the ordinance was preempted by a state statute pertaining to the carrying of a concealed weapon. Id. at 744. This Court affirmed, but not on the ground relied upon by the district court. Instead, this Court found that the ordinance was unconstitutionally overbroad. Id. at 744-45. The Court observed that the ordinance prohibited several activities which are constitutionally protected by Colo. Const. art. II, § 13. Id. at 745. For instance, the ordinance "malde] it unlawful for a person to possess a firearm in a vehicle or in a place of business for the purpose of self-defense." Id. at 745. Because the ordinance was so general in scope that it included within its prohibitions several constitutionally protected activities, this Court declared the ordinance invalid. ld. In so holding, this Court emphasized the importance of the constitutional rights at stake: Even though the governmental purpose may be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.
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Id. (emphasis added). Thus, not only did this Court in City of Lakewood v. Pillow characterize the right to keep and bear arms in defense of home, person and property as a "fundamental personal liberty," it also confirmed that attempts to regulate that right are not reviewed under a deferential rational basis test.. . Five years after City of Lakewood v. Pillow, the Colorado Supreme Court again underscored the importance of the individual right to keep and bear arms in defense of home, person and property. In People v. Ford, 568 P.2d 26 (Colo. 1977), the defendant was charged with violating a statute which prohibited felons from possessing firearms; he moved to dismiss the charge on the ground that because he possessed firearms solely for the purpose of defense of his home, person and property, the statute violated Colo. Canst. art. II, § 13 as applied to him. In addressing the defendant's contention, this Court confirmed that under the police power, the General Assembly "may validly restrict or regulate the right to possess arms where the purpose of such possession is not a constitutionally protected one." Id. at 28 (emphasis added). However, addressing the defendant's claim, the Court concluded: The General Assembly's power to regulate in this area, however, is subject to the clear constitutional guarantee of the right to bear arms. A defendant charged under section 18-12-108 who presents competent evidence showing that his purpose in possessing weapons was the

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defense of his home, person, and property thereby raises an affirmative defense. ld Thus, under Colorado law, even convicted felons retain the "clear constitutional guarantee" of the right to keep and bear arms in defense of home, person and property, and may assert that right as an affirmative defense to a state charge of being a felon in possession. Thus, for decades after the Nakamura decision, this Court's precedent confirmed that the right to keep and bear arms in defense home, person and property is not only an important individual right, but that it is sufficiently important (indeed a "fundamental personal liberty") that it cannot be denied to any person in the State (including unnaturalized foreign-born residents and convicted felons), and cannot be stifled by broad regulations if the purpose of such regulations can be more narrowly achieved. In 1994, however, this Court's pronouncements cooled somewhat on the fundamental importance of Colo. Const. art. II, § 13. In Robertson v. City & County of Denver, 874 P.2d 325 (Colo. 1994), this Court addressed whether the City of Denver's regulation of assault weapons violated Colo. Const. art. II, § 13. In determining that the regulation was a reasonable exercise of the police power, the Court acknowledged that the right is "important," id. at 328, but carefully refrained from determining-whether the right to bear arms is "fundamental."
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The

Court's reluctance to characterize as fundamental the right to keep and bear arms in defense of home, person and property is somewhat puzzling in light of its prior precedent, especially City of Lakewood of Pillow, which clearly characterized the right, albeit in dicta, as a "fundamental personal liberty," See 501 P.2d at 745. Nevertheless, the Robertson court was accurate in its observation that City of Lakewood contained no analysis of the issue. Perhaps taking its cue from Robertson, the Court of Appeals further retreated from robust protection of the right to keep and bear arms in defense of home, person and property in Trinen v, City & County of Denver, 53 P.3d 754 (Colo. App. 2002). In 2000, the General Assembly had enacted C.R.S. § 18-12105.6 to address traveling with a firearm in a car. The statute prohibited local governments from enacting any ordinance that "restrict]s] a person's ability to travel with a weapon in a private automobile ... for lawful protection of, .. person or property while traveling into or through a local jurisdiction, . , ." The City of

Denver, however, persisted in asserting that it could restrict the transporting of firearms in vehicles so long as it took place within its city limits. In the wake of the General Assembly's 2000 legislation, Donald Trinen sued the City, claiming that its regulations, which greatly limited a citizen's ability to transport firearms in cars within the City, were both unconstitutional under the Colorado Constitution

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and preempted by C.R.S. § 18-12-105.6. In a two-to-one decision, the Court of Appeals upheld Denver's restrictions on carrying guns in cars in the City. In dissent, Judge Roy agreed with the majority's rejection of the preemption argument, but would have held that the City's restrictions were unconstitutional under Colo. Canst. art. II, § 3 and Colo. Const. art. II, § 13. He explained: While the list of protected conduct [under the City of Denver's ordinance] includes possession of a weapon in a vehicle and place of business for self-defense, it does not expressly include the right to keep and bear arms in defense of home, person and property, which the supreme court in [City a/Lakewood v. Pillow, 501 P.2d 744 (Colo. 1972)] otherwise recognized and is explicit in the constitution. Trinen, 53 P.3d at 762-63 (Roy, J., dissenting). B. The General Assembly Enacted SB 24 and SB 25 as a Comprehensive Statutory Scheme to Fully Effectuate the Constitutional Right to Keep and Bear Arms in Defense of Home, Person and Property ..

Faced with an apparent drift by the courts away from the values embodied by Colo. Canst. art. II, § 13, the General Assembly responded in part by enacting two bills, S.B. 03-024 C'SB 24") (addressing concealed carry, primarily codified at C.R,S. §§ 18-12-201 to 216), and S.B. 03-025 ("SB 25") - establishing a comprehensive set of laws regulating firearm possession and preempting municipal

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regulations in this area. 1 In SB 24, concerning the statewide regulation of carrying concealed handguns, the General Assembly formulated a set of declarations making it crystal clear that SB 24 was enacted to fully effectuate the constitutional right to keep and bear arms in defense of home, person and property' Subparagraph (e) of the declaration oflegislative intent provides:

SB 25 enacted statewide preemp.tion concerning the transportation of firearms, maintenance of local government databases on gun owners, the types of firearms that could be lawfully owned in the State, and the open carry of firearms.
1

While it is this Court's role to say what the law is, nothing prohibits the legislature from affording greater protection to constitutional rights than court precedent or the constitution demands. While the Colorado Constitution excludes concealed carry as a constitutional right per se, it is entirely appropriate for the General Assembly to determine that concealed carry is necessary to fully effectuate the right to keep and bear arms in defense of home, person and property. Cf People v. Bailey, 874 N.E.2d 940, 953 (Ill. App. 2007) (,'legislature may create a statutory right that is broader than a simultaneously applicable constitutional right"). For instance, in Employment Div. v Smith, 494 U.S. 872 (1990), the United States Supreme Court held that with respect to free exercise challenges to laws of general applicability, government need not establish a compelling government interest to justify a substantial burden on a religious practice. In response, Congress enacted the Religious Freedom Restoration Act ("RFRA"), which reinstituted the compelling govennnent interest test for free exercise challenges to laws of general applicability - thus providing broader protection to the free exercise of religion than the First Amendment demands. 42 U.S.C. § 2000bb-1. Although the Supreme Court later struck down that portion ofRFRA applicable to state government on the ground that Congress had exceeded the scope of its enforcement power under Section 5 of the Fourteenth Amendment, see City of Boerne v.Flores, 521 U.S. 507, 533-35 (1997), RFRA remains applicable to the federal government. 0 Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973,1010 n.7 (lOth Cir. 2004), aff'd, 546 U.S. 418 (2006).
2

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It is necessary that the state occupy the field of regulation of the bearing of concealed handguns since the issuance of a concealed handgun permit is based upon a person's constitutional right of selfprotection and there is a prevailing state interest in ensuring that the' laws controlling the use of the permit are consistent throughout the state. C.R.S. § 18-12-201(1)(e) (emphasis added). Similarly, the legislative declaration in support of SB 25 emphasized the General Assembly's purpose of fully effectuating and protecting the constitutional right to ,keep and bear arms in defense of home, person and property, and to ensure that the right be deemed "fundamental" : (a) Section 3 of article II of the state constitution, the article referred to as the state bill of rights, declares that all persons have certain inalienable rights, which include the right to defend their lives and liberties; 3 (b) Section 13 of article II of the state constitution protects the fundamental right of a person to keep and bear arms and implements section 3 of article II of the state constitution; (c) The general assembly recognizes a duty to protect and defend the fundamental civil rights set forth in paragraphs (a) and (b) of this subsection (1).

Colo. Const. art. II, § 3, captioned "inalienable rights," provides: "All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; of seeking and obtaining their safety and happiness," (Emphasis added.)
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C,R,S, § 29-11.7-101(1) (emphasis added), The General Assembly was explicit in declaring that its purpose was to enact a comprehensive, statewide scheme which occupies the field of firearms regulation." With respect to SB 24, the General Assembly pronounced that, as quoted above, ~'[i]t is necessary to occupy the field" of regulation of the concealed carry of handguns because of the "widespread inconsistency" among jurisdictions within the state concerning the issuance of concealed carry permits. C,R.S, § 1812-201(1)(a), (e). Another section of SB 24 also states that "[a] permit to carry a concealed handgun authorizes the permittee to carry a concealed handgun in all areas of the state, except as specifically limited in this section.t" ld., § 18-12214(1)(a) (emphasis added). And in SB 25, the General Assembly again emphasized the "widespread inconsistency" among jurisdictions within the state

In recent published decisions involving comprehensive and exhaustive state handgun legislation, other state courts have held that such legislation preempts conflicting municipal ordinances. City of Cleveland v. State, No. 201 0-Ohio-6318, 2010"YVL5392919, at *8 (Ohio Dec. 29, 2010); Chwick v. Mulvey, No. 200901468,2010 \OVL 5394872, at *7 (N.Y, App. Div. Dec, 28, 2010).
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As discussed in further detail in oth~r briefs in this case and in Section II of this brief, the exceptions are "a public elementary, middle, junior high school." C.R.S. § 18-12-214(3). Public universities are not included in these exceptions but all government buildings, including CU's, are potentially exempted if a jurisdiction controlling a government building takes certain security measures prescribed in the statute. See id. at § 18-12-214(4)(a)-(c).
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concerning lawful firearm possession and ownership, and the consequent need for statewide uniformity. C.R.S. § 29-1 1.7-101(1)(d) to -lOl(l)(g). CU's position in this case - that it should be permitted to enforce a gun ban on its campuses in spite of SB 24 - is diametrically at odds with the plain language of the Colorado Constitution as effectuated by SB 24, as well as the intent of SB 24. The General Assembly unmistakably effectuated and protected the state constitutional right of all persons in this State to keep and bear arms in defense of home, person and property by enacting a uniform, state-wide scheme to regulate the carry of concealed firearms "in all areas of the state," thereby "occupying the field."

c.

The General Assembly's Declaration that the Right to Keep and Bear Arms Is Fundamental Foreshadowed the United States Supreme Court's Similar Determination Regarding the Second Amendment

The General Assembly's enactment of SB 24 and SB 25, and more particularly its declaration that the right to keep and bear arms is "fundamental," remarkably anticipated the United States Supreme Court's decisions in District of Columbia v. Heller, 554 U.S. 570 (2008) and Mciionald v. Chicago, 130 S. Ct. 3020 (2010). Taken together, Heller and Mcl.ionald recognize the right tokeep and bear arms, as expressed in the federal Second Amendment and in state

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constitutions such as Colorado's, to be a fundamental, individual right that predated those instruments and applies in every part of the United States. The General Assembly's declaration that the right is "fundamental" reflects Blackstone's view "that the right to keep and bear arms was 'one of the fundamental rights of Englishmen, '" which was "shared by the American colonists." Mclionald, 130 S. Ct. at 3037. "The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights." Id. Thus, in Mclsonald the Court held that the Second Amendment right is incorporated into the Fourteenth Amendment, and is applicable to the States, because it passed the tests of "whether the right to keep and bear arms is fundamental to our scheme of ordered liberty" and is "deeply rooted in this Nation's history and tradition .... " ld. at 3036. In language that echoes the explicit terms of Colo. Const. art, II, § 13, the Court in Heller observed: And whatever else it leaves to future evaluation, [the Second Amendment] surely elevates above all other interests the right of lawabiding, responsible citizens to use arms in defense of hearth and home.
554 U.S. at 635,

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D.

The General Assembly's Policy Decision to Extend Colo. Const. art. II, § 13 Protections to College Students Is Sound

CU's fanciful declaration that its campuses are "gun-free" is nothing more than an ineffectual legal fiction. CU's gun ban strips law-abiding college students of the constitutional right to keep and bear arms in defense of their person and property,and leaves them defenseless against assaults by criminals emboldened by

the knowledge that any college students they encounter will be unarmed. As one legislator commented during debate on a proposed amendment to SB 24 which would have excepted public universities from the reach of the bill: [The] suggestion was, well, if you were afraid to go to your car at night, then perhaps you should have an escort. Why should I have to have an escort? Why should my freedom be any less than anyone else's simply because I'm a woman? We know that women are raped on college campuses at a regular rate. 'rVeought to be a little more compassionate toward women who choose this type of defense as selfdefense. It is wrong to make women victims .... I submit to you today that a firearm is the ultimate equalizer. It empowers women to protect themselves, and that should never ever be denied. Please do not allow women on campus to become victims." Of course, the proposed amendment exempting universities (the text of which is attached to this brief) was rejected decisively, thus eviscerating CU's argument that by not mentioning universities, the General Assembly actually intended to exempt them from the reach of the statute. Although the Virginia Supreme Court recently held that a university regulation governing the possession of firearms on campus did not violate the state or federal constitutional rights of a citizen to bear arms, see DiGiacinto v. Rector & Visitors a/George Mason Univ., No. 091934, 2011 WL 111584 (Va. Jan. 13,2011), that decision did not involve a preemptive state statute, but was premised solely on a rejection of the plaintiff s constitutional claim on the basis that the university could properly be deemed a "sensitive place"
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Proceedings of the House Committee of the Whole, 64th Gen. Assemb., 1st Reg. Sess. (Mar. 13,2003) (audio tape recording), In short, the General Assembly's policy decision in this matter is a sound one, and. although reasonable minds may disagree, "[tjhe questions of the wisdom, justice, policy, or expediency of a statute are for the Legislature alone." Chicago Title & Trust Co. v, Patterson, 178 P. 13, 13 (Colo. 1919). II. CU'S ATTE~IPT TO PREEMPT STATE LA \V PROTECTING THE CONSTITUTIONAL RIGHT TO KEEP AND BEAR ARlVISIS BASED

UPON FUNDAMENTAL
A.

FLAWS

CU Is a State Institution Subject to Acts by the General Assembly; The Board of Regents Exercises the Authority to "Generally Supervise" CU, and It Does Not Possess "Police Power" as It Asserts in This Court

Before turning to the specific flaws in CU's argument on why its gun ban preempts state law, it is important to put CU's authority in context with the plenary power of the General Assembly. CD is one of three state institutions of higher education listed in Colo. Const. art. VIII, § 5(1). All three institutions are expressly defined as "state institutions ... subject to the control of the state ... and subject to state regulation under Heller. See 554 U.S. at 626-27. Moreover, GMU's gun regulation was not a total ban like the one at issue here. Rather, it was carefully tailored, "restricting weapons only in those places where people congregate and are most vulnerable .. .." 2011 \VL 111584, at *5. "Individuals may still carry or possess weapons on the open grounds of GiYIU,and in other places on campus not enumerated in the regulation." Id.
17

such laws and regulations as the general assembly may provide." Id. Colo. Const. art. VIII, § 5(1) gives only certain specific, express enumerated powers that are not subject to laws passed by the General Assembly: the Board of Regents' power to maintain and conduct "schools of medicine, dentistry; nursing and pharmacy" and the power of all institutions to give temporary lecture courses or conduct class excursions in any part of the State. Colo. Canst. art. VIII, § 5(1) also empowers the three institutions to establish, maintain and conduct "centers, medical centers, or branches of such institutions in any part of the state" however, even this expressly enumerated power is "subject to prior approval by the general assembly." Colo. Canst. art. IX, § 12 expressly provides for the Board of Regents for . CU, but does not define its powers. The powers of the Board of Regents are established back in Colo. Canst. art. VIII, § 5, and are no greater than the powers of the governing boards of Colorado State University and Colorado School of Mines. Under Colo. Const. art. VIII, § 5(2): "[tjhe governing boards of the state institutions of higher education, whether established by this constitution or by law, shall have the general supervision of their respective institutions and the exclusive control and direction of all funds of and appropriations to their respective institutions, unless otherwise provided by law." (Emphasis added.)

18

F or purposes of this case, these provisions establish three points worth noting. First, the Board of Regents of CD has "general supervision" over CU. There is nothing in the Colorado Constitution that gives CD police power over its campuses, its lands, students, or visitors. Second, the Board of Regents' powers of "general supervision" are expressly made subj ect to laws enacted by the General Assembly. Third, even the governing boards' specifically enumerated "exclusive control and direction" of appropriated funds is subject to laws enacted by the General Assembly. The General Assembly authorized all of the governing boards of all state institutions of higher education (including the ones expressly listed in Colo. Const. art. VIII, § 5, and those created by the General Assembly) to regulate "the safety and welfare of students, employees and property." C.R.S. § 23-5-106(1). As noted in the caption and consistent with Colo. Const. art. VIII, § 5, this is a "general" power. While a regulation promulgated by CU pursuant to this statutory power is, "for the purpose of interpretation," "like" a statute, Subryan v. Regents a/the Univ. of Colo., 698 P.2d 1383, 1384 (Colo. App. 1985), it is not an exercise of police power. That power resides in the General Assembly. See City & County of Denver v. Tihen, 235 P. 777, 780 (Colo. 1925) C'Our General Assembly, by statute, in the exercise of its unquestioned power, is the only body competent to

19

say what the public policy of the state shall be, and in it resides the sovereign police power of the statute, independent of constitutional or common law provisions."), overruled on other grounds, State Farm Mut. AutoIns. Temple, 491 P.2d 1371, 1374 (Colo. 1971). B. This Case Is Governed by this Court's Decision in Ramos; SB 24 Effectuates an Express Constitutional Right to Be Enjoyed by All Citizens and in All Areas of the State, Subject Only to the Specific Limitations Delineated by the General Assembly Co. v.

CU places Sisyphean weight on Associated Students of the Univ. of Colo. v. Regents of the University of Colo. , 543 P.2d 59 (Colo. 1975), and Uberoi v. Univ. of Colo. , 686 P,2d 785 (Colo. 1984), to push up the hill its statutory argument that SB 24 does not apply to CU, This Court's more recent opinion in Colorado Civil Rights Comm 'n ex rei. Ramos v. Regents of the Univ. of Colo. , 759 P.2d 726 (Colo. 1988) ("Ramos"), like the boulder that eternally frustrated Sisyphus, is fatal to CU's effort. Ramos describes in great detail why Associated Students and Uberoi do not insulate CD from the statewide reach of SB 24. This Court noted that the Board of Regents under Colo. Canst. art. VIII, § 5(2) possess "only" a "limited power of 'general supervisiori'" due to the "otherwise provided by law" clause of Colo. Const. art. VIII, § 5(2) and the under "such laws and regulations as the general

20

assembly may provide" language of Colo, Const. art. VIII, § 5(1),.759 P.2d at 730, Associated Students and Uberoi, as this Court noted) were decided as they were because both the Open Meetings Law and the Colorado Open Records Act contained provisions negating their applicability where other laws "excepted" a particular situation or governmental body from the statutes' reach. ld at 733 (Open Meetings Law construed in Associated Students contained proviso "except as may be otherwise provided in the state constitution"); 733-34 (Open Records Act, construed in Uberoi, contained proviso "except ... as otherwise specifically provided by law"). In underscoring that Associated Students and Uberoi should not be relied upon.beyond their narrow contexts, the Ramos court noted that the General Assembly had "repudiated the holdings" in Associated Students and Uberoi by amending the Open Meetings Law and the Open Records Act to make them laws applicable to CU, This Court opined that these prompt repudiations by the General Assembly sent "a clear signal that the legislative intent in using such generic terms as 'institutions' and the even broader phrase 'every other person employing

21

persons within the state '" demonstrated the General Assembly} s intent that broad, encompassing legislative terms applied to CU. Id. at 734 (emphasis added)," The plain language of SB 24 leaves no margin of error concerning its application to CD and the protection of the constitutional rights of its students and other persons on CD's campuses. As noted above} the legislative declaration for SB 24 requires that the regulation of firearm carry shall be "regulated by state statute and should be consistent throughout the state to ensure the consistent implementation of state law." C.R.S. § 18-12-201(1)(d) (emphasis added). To ensure this consistency throughout the State, the General Assembly determined that "[i]t is necessary that the state occupy the field of the regulation of the bearing of concealed handguns since the issuance of a concealed handgun permit is based on a person's constitutional right of self-protection and there is a prevailing state Associated Students and Uberoi can be partly explained by the fact that the Open Meetings Law and the Open Records Act regulated the manner in which the Board of Regents itself conducted its own business. By contrast, Ramos, while also implicating University governance, 759 P.2d at 730 C'decisions regarding tenure are central to the educational function of the University and generally lie within the discretion of the Regents"), principally involved protection of the·civil rights of its employees. Here, similarly, SB 24 protects the constitutional rights of all citizens, including citizens on CU's campuses. It in no way "strip]s] the Regents of their authority to perform the core function of determining the measures to promote the educational environment and secure the safety of students, employees, and campus visitors" as CD now claims. Opening Brief ex 18. Indeed, state preemption of gun regulation is far less intrusive into CU}s self-governance than its tenure decisions at issue in Ramos that this Court characterized as "central to the educational function of the University."
7

22

interest in ensuring that no citizen is arbitrarily denied a concealed handgun permit and in ensuring that the laws controlling the use of the permit are consistent throughout the state." C.R.S. § 18-12-201(1)(e) (emphasis added). Accordingly, SB 24 applies "in all areas of the state, except as specifically limited in this section." C.R.S. § 18-12-214 (l)(a) (emphasis added); compare Ramos, 759 P.2d at 731 C'[ w]e find especially significant ... the breadth of the language used by the General Assembly")." Section 214 provides the specific limitations referred to in section 214(1)(a). Among other things, the limitations include K-12 schools but expressly authorizes handguns locked in a vehicle on K-12 school property. They also include "public buildings" subject to certain qualifications, such as permanently placing security personnel and electronic weapons screening devices at each entrance. C.R.S. -§ 1812-214( 4). Thus, the statute already specifically provides for CD to exempt its campus buildings from the reach of SB 24 if it is willing to establish the security measures described in section 214(4).

Even if Associated Students and Uberoi were not as limited in their scope as this Court held in Ramos, as noted above, the legislative history of SB 24 and SB 25 (in addition to SB 24's plain language) establishes that the General Assembly rejected attempts to amend those laws to limit the constitutional rights of persons on CD's campuses and thus demonstrates that SB 24 was "specifically designed," Opening Brief e: 26, to address, inter alia, CU.
8

23

CU's attempt to enforce its firearms ban regardless of the plain language of Section 214(4) amounts to a curious sort of selective paternalism. For example, the enormously destructive impact of underage alcohol abuse on college campuses is well known, 9 yet CU's policy regarding alcohol use on campus is considerably more laissez faire than its policy on firearms. See CU-Boulder Policy Regarding Alcohol Use ("Students can have fun but in a responsible way. . . . Encourage those who drink to drink responsibly."), available at http.z/studcntlifc.colorado. edu/resources/p/policies-alcohol-and-safety .: This selective approach is peculiar

given that the right to bear arms is explicitly protected by our State and United States constitutions, while the right to imbibe on campus is not. In short, CU's position boils down to the assertion that with respect to firearms - and only with respect to firearms - CU simply cannot trust its students. Yet by the plain language of section 214, and indeed the language of all of SB 24, the General Assembly determined otherwise. If CU believes that it should be afforded more leeway than what is already allowed it under SB 24 to regulate gun possession on its campuses, its forum for seeking that leeway is the General Assembly, not the courts of this State.

It should be noted that SB 24 permits are generally only available to persons 21 years of age or older. See C.R.S. § 18-12-203(1)(b).
9

24

III.

THE COURT OF APPEALS CORRECTLY DETERl"IINED THAT· PLAINTIFFS BELO"V HAVE A CLAINI UNDER COLO. CONST. ART. II, § 13 A. Plaintiffs Have a Viable Claim Under Colo. Const. art. II, § 13 Based on Car Carry

Colo. Const. art. II, § 13 confers upon all citizens (and even non-citizens) a claim for a violation of the fundamental right to keep and bear arms in defense of home, person and property. Eg., City of Lakewood, 501 P.2d 744; Nakamura, 62 P.2d 246; see also Medina v. People, 387 P.2d 733, 736 (Colo. 1964) ("The Bill of Rights is self-executing; the rights therein recognized or established by the Constitution do not depend upon legislative action in order to become operative.")." This is particularly true where the gunregulation at issue is an

outright ban. See Robertson, 874 P .2d at 330 n.1 0 (observing that "outright prohibitions on the possession of all firearms have been held to violate constitutional protections") (citing City of Las Vegas v. Moberg, 485 P .2d 737, 738
(N.N!. App. 1971) (statute banning possession of firearms is unconstitutional

because it denies the right as opposed to regulating it)).

Compare Bivens v. SL-y; Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 389-91 (1971) (holding that violations of the Fourth Amendment give rise to a cause of action even in the absence of any authorizing federal statute).
10

25

Here, CU's gun ban prohibits "the possession of firearms or other dangerous or illegal weapons on or within any University of Colorado campus, leased building, other area under the jurisdiction of the local police department or areas where such possession interferes with the learning and working environment." Thus, the gun ban is so absolute that it even strips individuals of the right to carry a firearm in their vehicles for self-defense. Plaintiffs therefore clearly have a viable claim under Colo. Const. art. II, § 13 based on car carry. B. The StandardofReview Cannot Be Rational Basis

As discussed in Section I above, this Court's precedent demonstrates that the right to keep and bear arms in defense of home, person and property is _an undeniably important individual constitutional right, it was deemed fundamental by the General Assembly, and it is clearly a fundamental constitutional right in this . State today. Despite all of this, CU argues that regulations undermining this right are subject only to rational basis review. Setting aside the fact that CD does not possess police power enjoying deferential review under the rational basis test, CU's argument is belied by this Court's precedent. In City of Lakewood v. Pillow, for example, this Court struck down Lakewood's municipal gun ban because a governmental purpose "cannot be pursued by means that broadly stifle

26

fundamental personal liberties when the end can be more narrowly achieved." 501 P.2d at 745. This Court's application of a stricter standard in City of Lakewood foreshadowed the Heller decision by nearly 40 years. As Heller held, "the [rational-basis] test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear anus." Heller, 554 U.S. at 628 n.27. The Court further observed: "If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect." ld. This Court should forcefully reject CU's attempt to belittle the protections to be afforded the right to keep and bear arms in defense of home, person and property as provided for in Colo. Const. art. II, § 13, and as effectuated by SB 24 and SB 25~ CONCLUSION F or the foregoing reasons, the decision of the Court of Appeals should be affirmed. Dated this 24th day of January, 2011. Respectfully Submitted,

27

icha d . Westfall, #15295 Peter J, Krumholz, #27741 Attorneys for Amicus Curiae National Rifle Association

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CERTIFICATE

OF SERVICE

I hereby certify that on this 24th day of January, 2011, a true and correct copy of the foregoing brief was mailed via U.S. mail, postage prepaid, to the following: James Manley Mountain States Legal Foundation 2596 S. Lewis Way Denver, CO 80227 Patrick T. O'Rourke Margaret Wilensky DavidP. Temple Office of University Counsel 1800 Grant Street, Ste. 700 Denver, CO 80203 Edward T. Ramey Isaacson Rosenbaum P .C. 1001 17th Street, Suite 1800 Denver, Colorado 80202 Jonathan E. Lowy Daniel R. Vice Brady Center To Prevent Gun Violence 1225 Eye St., N.W., Suite 1100 Washington, D.C. 20005
-

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Page 1136 1
Vacancy 1 YES 22

House Journal--65th Day-March 13,2003
NO N Garcia
Y Y Hall Harvey Hefley Hodge Hoppe Jabn Johnson Judd King Larson Lee Lundberg Madden Marshall May 42
EXCUSED

2 3
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

Berry Borodkin Boyd Briggs Brophy Butcher Cadman Carroll Clapp Cloer Coleman Crane Decker Fairbank Frangas Fritz

N N N N
N Y

N y N
Y Y Y

y

Y

N

N
Y N N

Y

N N y y
N N Y

N Y

McCluskey McFadyen Merrifield Miller Mitchell Paccione Plant Pommer Ragsdale Rhodes Rippy Romanoff Rose Salazar Schultheis

N Sinclair
N

00

ABSENT

00 N

N Spence N Stafford y Stengel
Tochtrop N Veiga Y Vigil Y Weddig y Weissmann N Vlhite N Wiens N Williams S. N Williams T. Witwer N Young Speaker Y

Smith

N N
N N Y

N N N

N y N N N N N

N

20
21 22 24

Representative Boyd moved to amend the Report of the Committee ofthe Whole to show that the following Boyd amendment, to SB 03-024, did 23 pass, and that SB 03-024, as amended, did pass.

25 Amend reengrossed bill, page 25, after line 19, insert the following: 28 29
30 31 32 33 26 27
11(5) A PERL\llT ISSUED PURSUAl'1T TO THIS PART 2 DOES NOT AUTHORlZE A PERSON TO CARRY A CONCEALED HAL'lDGUN ON THE PREi'vllSES, INCLUDING THE REAL PROPERTY Al'ID Al'N INIPROVEr..-IENTS ERECTED THEREON, OF A VOCATIONAL SCHOOL OR A PUBLIC OR PRlV ATE COLLEGE, UNIVERSITY, OR SEiYllNARy.1I.

35 Page 28, line 4, strike "18-12-214 (3)/' and substitute "18-12-214;";
36
37

34

Renumber succeeding subsections accordingly.

38
39
41

line 10, strike 1118-12-214(3);" and substitute "18-12-214;".

40 The amendment was dec1aredlost by the following roll call vote: 42
43 44
45 46
Vacancy 1 YES 24 NO

47
48 49 50 51 53 54

52

55
56

Berry Borodkin Boyd Briggs Brophy Butcher Cadman Carroll Clapp Cloer Coleman Crane Decker Fairbank

N Garcia Y Hall Y Hefley N Hodge
Y N Y Harvey

N N N N
Y Y

40 Y N

EXCUSED

Y N N y N N N

Hoppe Jabn Johnson Judd King larson Lee Lundberg Madden

Y

N N N N Y

McCluskey McFadyen Merrifield Miller Mitchell Paccione Plant Pommer Ragsdale Rhodes Rippy Romanoff Rose Salazar

N Sinclair
Smith Spence N Stafford N Stengel Y Tochtrop Y Veiga y Vigil Y Weddig N Weissmann N Vlhite Y Wiens N Williams S. N Williams T. N Y

00

ABSENT

N N N N N N
Y y

00

Y

Y N N N N

House Journal--65th
1 2

Day-March y
N

13,2003 Schultheis N Witwer Young S eaker

Page 1137 Y
N N

3 4
5

Frangas Fritz

Marshall N May

Y

6 Representative Carroll moved to amend the Report of the Committee of 7 the Whole to show that the following Carroll amendment, to SB03-025, 8 did pass, and that SB03-025, as amended, did pass.

12 Strike pages 4 and 5. 13 14 Page 6, strike lines 1 through 7.

10 Amend reengrossed bill, page 3; strike lines 18 through 27. 11

9

16 Renumber succeeding section accordingly. 18 The amendment was declared lost by the following roll call vote: 19 . 00 20 Vacancy 1 YES 22 EXCUSED NO 42 00 ABSENT Berry 21 N Garcia Y McCluskey Sinclair N N 22 Borodkin Y Hall N McFadyen N N Smith 23 Boyd Y Harvey N Merrifield N Y Spence 24 Briggs N Hefley N Miller N N Stafford Brophy 25 Y Mitchell N N Hodge N Stengel y Tochtrop 26 Butcher N Paccione N Y Hoppe 27 Cadman N Jahn Y Plant Y Veiga Y y Vigil y Johnson 28 Carroll N Pommer Y y 29 Clapp N Judd Y Ragsdale Y Weddig 30 Cloer N King N Rhodes Weissmann y N 31 Coleman N Rippy N N Larson N White Crane N Lee 32 N N . Romanoff Y Wiens 33 Decker N Rose N Lundberg N Williams S. Y y Salazar 34 Fairbank N Madden N Williams T. N y Marshall Frangas 35 Y Witwer N Fritz 36 N May N Schultheis N Young N 37 &n_eaker N 38 39 40 ADOPTION OF CO:MNIITTEE OF THE 'VHOLE REPORT 41 42 Passed Second Reading: HB03-1021 amended, SB03-024 amended, 43 025, 130, 224. 44 45 The Chairman moved the adoption of the Committee of the Whole 46 Report. As shown by the following roll call vote, a majority of those 47 elected to the House voted in the affirmative, and the Report was 48 adopted.

15

17

49
50 51 52
54

Vacancy 1 YES 64

53

55 56

Berry Borodkin Boyd Briggs Brophy Butcher

Y

Y

Y

Y y

Y

NO Garcia Hall Harvey Hefley Hodge Hoppe

00

y y

EXCUSED

Y Y
Y Y

McCluskey McFadyen Merrifield Miller Mitchell Paccione

Y y y Y

00

ABSENT

Y

Y

Sinclair Smith Spence Stafford Stengel Tochtrop

00 y y

Y Y Y Y

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