Colorado's Courts are still out of control...

Some judges continue to hold themselves above the law - but they are not beyond accountability.

DID YOU KNOW that you have the right to vote "NO" on these unjust justices (and judges at all levels)?

It's true – judges - even Supreme Court justices - in Colorado ARE accountable to the people. Every two years, voters in Colorado have the opportunity to render their judgement on a portion of our appointed judiciary in "retention" elections ("should they stay, or should they go?" What makes a good judge?) YOU, the voter, get to decide - they NEED YOUR APPROVAL to be retained on the bench.

The "Mullarkey Majority" on the Colorado Supreme Court were guilty of Aiding and Abetting

For additional information and references, view the Evaluations of Judicial Performance page

For information on Colorado's new court-drawn Congressional and state legislative districts, view the Congressional and state legislative district maps summary


Colorado Supreme Court Justice Hobbs to retire, vacancy opens

Colorado Supreme Court Justice Gregory Hobbs announced last week that he would retire from the court effective 31 August 2015.

 

 

 

 

 

 

 

 

 

 

 

The Colorado Supreme Court’s official retirement announcement (and notice of impending vacancy)  was released on 19 March, and also gave notice of the schedule for reviewing applications and nominations:

The Colorado Supreme Court Nominating Commission will meet June 8 and 9, 2015, at the Ralph L. Carr Colorado Judicial Center (2 E. 14th Ave., Denver, CO 80203) to interview candidates and select nominees for appointment by the governor to the Colorado Supreme Court.

Justice Hobbs has served on the Colorado Supreme Court for 19 years; originally appointed in 1996 by Democrat Governor Roy Romer, he was last retained in office in 2008 and would have been next subject to a retention election in 2018 (Colorado Supreme Court Justice terms are for ten years, except for their first “probationary” term of 2+ years until the next election).

Justice Hobbs was widely recognized as an authority on water rights law in Colorado and nationally; so much so, in fact, that former gubernatorial candidate Scott McInnis was accused of plagiarizing a substantial portion of a “public policy study” (for which he was paid $300,000) from work previously published by Hobbs.

As announced by the court,

To be eligible for appointment to fill the vacancy, the applicant must be a qualified elector of the State of Colorado and must have been admitted to the practice of law in Colorado for five years.  The current annual salary for this position is $157,710. The initial term of office of a Supreme Court justice is a provisional term of two years; thereafter, the incumbent justice, if retained by the voters, has a term of 10 years.

Application forms are available from the office of the ex officio chair of the nominating commission, Chief Justice Nancy E. Rice, or from the Supreme Court Clerk, Christopher T. Ryan, 2 E. 14th Ave. Denver, CO 80203.  Applications also are available online on the court’s website.

For a complete explanation of the judicial nominating process in Colorado, read:
Colorado’s “Merit Selection” Judicial Nominating Process

 

Colorado Supreme Court declares disqualified Adams 12 School Board candidate “legally elected” but seat nonetheless vacant

The Colorado Supreme Court, in what appears to be a classic case of legal sophistry, held that a candidate disqualified from running for a school board elected office was nonetheless “legally elected” to that office – but, because she was “unqualified to serve” the seat is therefore vacant (and must be filled by a vacancy board appointment instead of by the legally qualified candidate who also ran).

In reviewing the court’s ruling, the appropriate response would seem to be

The court’s ruling –  No. 14SA235, Figueroa v. Speers – Election Law – Candidate Elected But Unqualified to Serve – held that “the unqualified candidate was legally elected despite not meeting the residency requirement” but that since “the candidate who was legally elected is not qualified to serve in the office for which she was elected, the supreme court upholds the trial court’s declaration of a vacancy in the contested office.”

So, in plain English – a candidate legally disqualified from running for office was “legally elected” but cannot take office because she was legally disqualified.

Truly, dizzying.

The court hangs its ruling on the fact that “although Speers was unqualified to serve, no court declared her to be unqualified until after voting had been completed.” [Emphasis added]

However, as noted in both the district court election challenge trial and in arguments before the Colorado Supreme Court itself, candidate Amy Speers was discovered to be ineligible only days before the election – and, despite notice, refused to withdraw her candidacy, as foreseen by law – and thus no court could possibly have issued any declaration prior to the election.

In fact, Speers’ candidacy was not only disqualified – but, arguably, perjurious, since she submitted a signed affidavit affirming that she “met all the requisite qualifications to hold the office.”

However, since the “sufficiency” of her affidavit was not challenged “within the respective five-day windows under section 1-4-909(1), C.R.S. (2014) (allowing five days to challenge the sufficiency of a petition before certification), or section 1-4-501(3), C.R.S. (2014) (allowing five additional days to challenge the certification of a candidate to the ballot)” and was not caught by the certifying officer, her certification to the ballot was held to be valid “despite Speers’s unwitting failure to meet the residency requirement.” [Ruling at 3]

The dizziness only gets better.

Ironically, the court noted that the certifying authority [Mullins] promptly requested that Speers withdraw from the race, which Speers refused to do. Mullins then notified the relevant county clerks to withdraw Speers’s name, but the clerks similarly refused to do so. Nobody involved requested judicial intervention of any kind prior to the election, and voting proceeded with both candidates remaining on the ballot.” [Ibid]

Ironic – because the court itself struck down the only attempt at “judicial intervention” in the form of an emergency rule issued by the Secretary of State in the Hanlen v. Gessler case, which held that “questions regarding a certified candidate’s eligibility [must] be determined by a court, not an election official.”

The court’s ruling is troubling on another level, as well.  By asserting sole authority to act as the arbiter of certifying candidate eligibility (rather than election officials, who have that duty in their job description) the court places itself squarely in the midst of the political process.  The increasing, and willful, self-politicization of the state’s judicial branch is (or should be) deeply troubling to anyone concerned with fair electoral process.

Although the court was at least consistent in voiding the election post-hoc for the ineligible candidate -

recognizing that a legally elected person is entitled to take office only “upon proper qualification” and instructing the court to set aside an election and declare a vacancy in the contested office if no person was legally elected [Ruling at 10]

it appears to be inconsistent in defining just what constitutes “legally elected” to (or even qualified to run for) public office.

  • Can Ineligible Candidates be “Duly Elected” to Public Office?

The court apparently rejected the argument that “a person cannot be a “duly nominated” candidate or a “duly elected” officer if the individual does not meet the qualifications for office. ”

This argument is important not only because it would eliminate the election controversy “ab initio” – since

“a run for office by an unqualified individual is void rather than voidable. It should be considered “a nullity, invalid ab initio, or from the beginning, for any purpose.” Delsas v. Centex Home Equity Co., 186 P.3d 141, 144 (Colo. App. 2008). (SOS Appeal for Review at 28)

It is also important because it would “prevent use of sham candidates” – popular figures ineligible to actually run for office serving as stand-in vote-getters.

Did the court’s ruling open the door for “sham candidates” to disrupt future elections?

Only time will tell.

Read more about the Adams-12 School Board Candidate Eligibility case:

Supreme Court rules that Colorado’s “Amazon Tax” can be challenged in federal court

The Supreme Court of the United States (SCOTUS) unanimously overturned a 10th Circuit ruling, allowing a lawsuit against Colorado’s “Amazon Tax” to resume proceedings in federal court.

The Supreme Court ruling (Direct Marketing Association v. Brohl, 13-1032) overturns a 10th Circuit Court decision that reversed a ruling by a federal trial court that had declared Colorado’s “Amazon Tax” illegal.  The 10th Circuit ruling had held that federal courts had no jurisdiction over state tax issues, a position rejected by the recent Supreme Court ruling due to the tax being applied to interstate commerce.

The 2010 internet sales tax (or “Amazon Tax” - House Bill 10-1193: Sales Tax Out of State Retailers (Pommer/Heath) was among the worst of the “Dirty Dozen” tax increases from both a constitutional and policy perspective, since previous legal precedent had already held that a state’s attempts to regulate commerce in other states (as this tax attempted to do) ran afoul of the U.S. Constitution.

Clear The Bench Colorado was at the forefront of the opposition to the unconstitutional “Dirty Dozen” tax increases passed by the Colorado Legislature in 2010 – testifying before the House and Senate Finance Committees that the tax increases were violations of the rights of Colorado citizens under the Colorado Constitution (Article X, Section 20: Taxpayers Bill of Rights) to be consulted (by vote) before being subjected to more or higher taxes, despite an interpretation of the Colorado Supreme Court ruling in the “Mill Levy Tax Freeze” case that the requirement to ask first could be ignored.

Clear The Bench Colorado warned the state legislature that the tax was guaranteed to be challenged in court, and would likely lose – a prediction that was affirmed two years later when a federal court ruled to strike down Colorado’s “Amazon Tax” in 2012.  The 10th Circuit, on appeal, held that federal courts had no jurisdiction over state tax matters – which the Supreme Court of the United States rejected and reversed.

The unconstitutional tax increase has never collected a dime in revenue, as it was swiftly suspended by the courts – but it has cost the state (and Colorado taxpayers) tens, if not hundreds, of thousands of dollars in litigation costs and attorneys fees.  Naturally, the legislators who have imposed these costs on Colorado have incurred no liability for their unconstitutional legislation.

Passing on such exorbitant legal costs to the taxpayers or consumers seems to be a common predilection of pandering politicians – who should be held accountable, at the ballot box if not otherwise.

Colorado Supreme Court hears appeal on constitutionality of Douglas County School Choice program

The Colorado Supreme Court heard oral arguments last month (10 December 2014) on a challenge to the constitutionality of the Douglas County School Choice program, in what could be a precedent-setting case for school choice nationwide. Last month’s oral arguments took place just over two years after the Colorado Court of Appeals heard similar arguments in the preceding case, which resulted in an appellate court ruling that upheld the constitutionality of the Douglas County “Choice Scholarship Program” (Colorado Court of Appeals Nos. 11CA1856/11CA1857, “Taxpayers for Public Education v. Douglas County Board of Education”) issued on 28 February 2013, that reversed a lower court ruling that had blocked implementation of the program in August 2011.

The legal battle over the constitutionality of the Douglas County “Choice Scholarship Program” – which allows K-12 students who reside in the Douglas County School District and have been enrolled in a Douglas County public school for at least one year to apply for a Choice Scholarship to attend the private or charter school of their choice – has gained national attention as the “ground zero” in the fight for school choice across the country.

Opponents of the school choice program (ACLU, Americans United for the Separation of Church and State, various front groups and individuals affiliated with local, state, and national teacher’s union and other special-interest groups et al) have argued that the school choice voucher program violated the state School Finance Act and Colorado Constitution provisions prohibiting ”aid to or support of religion and religious organizations” with taxpayer funds. The Court of Appeals resoundingly rejected those arguments, relying not only on the clear language of the Colorado Constitution, but also upon relevant Supreme Court of the United States precedent in a similar case (Zelman v. Simmons-Harris, 2002), holding that funds disbursed in such programs ”benefit students and their parents, and any benefit to the participating schools is incidental…”  

Issues “Reframed”

The appeal to the Colorado Supreme Court “reframed” several issues and again attempted to re-argue the “benefit to religious organizations” claim previously rejected by the Court of Appeals.  The Colorado Supreme Court granted certiorari (agreed to review) six distinct issues or arguments advanced by the plaintiffs:

  • Standing to bring private action under the School Finance Act
  • Challenging the use of a “Charter School” administrative entity to channel CSP funds
  • Standard for challenging constitutionality (“presumptive” or “beyond reasonable doubt”)
  • “Diversion of funds” to schools controlled by churches or religious organizations
  • “Compelled-support” or “compelled-attendance” at religious services in some CSP-grant schools
  • Requirement for titular “charter/public” students to receive religious instruction in some schools

Arguments:

  • Standing to bring private action under the School Finance Act

The Colorado Court of Appeals had held that[t]here is nothing in the language of the Act remotely suggesting that private citizens or groups have a right to seek judicial enforcement of its provisions.”  Appellants conceded that the statutory language conferred responsibility for enforcement on the State Board of Education, but argued “collusion” between the SBE and the Douglas County School Board (because the SBE had responded to a DCSB request to review and offer an advisory opinion on the Choice Scholarship Program prior to implementation – despite the fact that offering such review and opinion is precisely one of the functions assigned to the SBE).  Appellants argued that because the State Board of Education did not act to challenge the program, the right of enforcement devolved to private parties – a position characterized as “backup surrogate standing?” by a visibly skeptical Justice Hobbs (generally considered part of the “liberal” wing of the court).  Remaining justices also appeared skeptical about any “private right of enforcement.”

Prognosis: Based on the arguments presented, questions by the justices, case filings, and previous rulings, Appellants seem unlikely to prevail on the “standing” issue – which could derail the entire appeal, preserving the lower court (Colorado Court of Appeals) ruling in favor of school choice.

  •  Challenging the use of a “Charter School” administrative entity to channel CSP funds

Appellants asserted that the CSP’s “Choice Charter School” – which the Douglas County School Board conceded was an “administrative convenience” – is invalid as a mechanism for funding student enrollment and attendance at other schools participating in the choice scholarship program, calling it a “sham” and a “false front” to enable public education funds to go to private partner schools.  Appellants claimed that the “Choice Charter School” failed to meet requirements of the School Finance Act and Charter School Act, and “the program therefore fails.”

Appellees countered that the construction of the program followed the rules and regulations promulgated by the State Board of Education, and the choice of how to set up the program fell under the purview of the elected school board.  Since enforcement of the rules is the “exclusive province” of the State Board of Education, there is no “private right of enforcement” on this claim, either.

Prognosis:  Again, given that regulatory responsibility and enforcement authority seems to lie exclusively with the SBE, which has accepted the CSP as compliant with legal requirements, this claim is likely to fail and the Colorado Supreme Court is likely to uphold the judgment of the Court of Appeals.

  •  ”Diversion of funds” to schools controlled by churches or religious organizations

Appellants repeatedly referred to “depletion of resources” available for “public education” – an “export” of funds from Douglas County Schools “into the hands of private parties.”  Appellants maintained that the SFA and Colo. Constitution contain an “absolute prohibition on the use of funds for anything but public education.”  In sum, “public tax dollars can’t fund choice of parents to have their kids attend religious schools.”

Appellees countered that education funds are primarily to benefit students, not institutions – and that public education funding is tied to (and follows) students, per the SFA.  Appellees noted that funds are not diverted from any school district, and that the amounts available to parents/kids participating in the choice scholarship program are actually less than the “per-pupil” formula allows – which means that not only is there no diminution of funds available for “free public education” but that funds left available actually increase.

Prognosis: given the math, this is probably the weakest claim advanced in the appeal, and likely to fail.

  • Restrictions on “public funding” of schools with religious characteristics or under control of religious organizations (“No Aid” clauses of Colorado Constitution)

Appellants argued a “specific prohibition” of any aid or funding to schools with a religious character, including “teaching sectarian tenets” or religious institutional control.  These arguments mirrored those previously advanced before the Colorado Court of Appeals, and rejected by that court.

Appellees countered that other programs use public funds for private schools, including those of religious character, at various levels (such as the “Colorado Opportunity Fund” college scholarships).  Noting that the program is neutral with respect to religion and for a public purpose (education), it provides “no aid to religious institutions” but is for the benefit of students.  Appellees noted federal jurisprudence that singling out – for inclusion or exclusion – programs on the basis of religion violates both the Freedom of Exercise and Equal Protection clauses of the U.S. Constitution; one “can’t exclude religious groups from educational aid programs otherwise available to the public” (Everson v. BOE, 1947).  Moreover, since the choice of which school to attend using the “choice scholarship” is solely at the discretion of the parent, “the link between public funds and schools is broken if made by an individual’s choice.” (per the 2002 U.S. Supreme Court Zelman case)  Ultimately, the program enables public students making a private choice – a right secured under both the Colorado and U.S. Constitution.

Prognosis: Since little new argument on the “support to religious institutions” issue was advanced before the Colorado Supreme Court that differed substantially from arguments before the Colorado Court of Appeals, and since the appeals court ruling dealt with the issues so comprehensively in rejecting those arguments in their February 2013 ruling, it appears likely that the lower court’s ruling in this regard will be affirmed.

Summary Analysis:

It is interesting to note that the very definition of what constitutes “public” education arose multiple times, in questions from several justices.  In particular, several justices seemed to recognize (and the appellees also pointed out) that there is an ongoing “paradigm shift” and major changes in the delivery of education.  Several justices seemed at least willing to consider that the “old model of schools” is no long the only, or even dominant, option.  Some asked, concerning delivery of “public” education, if it’s necessary that “public” education MUST be in government schools?

The Colorado Supreme Court’s ruling in this case may go a long way towards answering that question.

Additional References:

Articles/Commentary:

Colorado’s “Official” Judicial Performance Evaluation System Lacks Transparency, Covers Up a Politicized Judiciary

Colorado’s “official” system of judicial performance evaluations is, contra the propaganda propagated by the system’s apologists, among the least transparent and opaque such processes in the nation, and serves to cover up (and perpetuate) existing politicization of the state’s third branch of government.

Far from being a “model” or “one of the best” judicial review systems, Colorado’s program (administered by the Colorado Office of Judicial Performance Evaluation (COJPE), a government agency) is a fraud foisted upon the citizens and voters of Colorado (at significant taxpayer expense).

Colorado’s “Official” Judicial Performance Evaluation System Explained

Colorado’s courts are administered, at the trial court level, under 22 judicial districts (most, although not all of which include multiple  counties). Each judicial district has a review commission consisting of 10 political appointees (6 non-attorneys and 4 attorneys).  As noted on the COJPE website,

Appointments to the commission are made by the Chief Justice, Governor, President of the Senate, and Speaker of the House.

The state’s appellate courts (Colorado Court of Appeals, Colorado Supreme Court) are “reviewed” by the “State Commission of Judicial Performance” – another 10 political appointees (also 6 non-attorneys and 4 attorneys) appointed by the Chief Justice, Governor, President of the Senate, and Speaker of the House.

The commissions supposedly gather information from a number of sources – interviews, observations, and (primarily) survey results – to generate “reviews” of judges published as a “narrative” beginning with an “official recommendation” on whether the rated judge should be retained in office (notably, not once in the entire decades-long history of the state review commissions has there been a “do not retain” recommendation for a judge at the statewide, appellate-court level; and “retain” recommendations account for over 98% of judges reviewed at the district/county levels).

Why do we have political appointees telling Coloradans how to vote?

Partisan Bias on Review Commissions?

It should be noted that, in contrast to the judicial nominating commissions and the process for nominating appointees to judicial office, which includes a legal requirement for partisan balance among members and for nominations, judicial performance evaluation commissions have NO requirement for partisan balance, and are often (usually?) dominated by members of a single political party.

Unsurprisingly, the 2014 “State Commission of Judicial Performance” is completely dominated by Democrats – ALL of the attorney members, and all but one of the non-attorney members (who is officially unaffiliated) are not only Democrats, but major Democrat contributors (first and foremost, naturally, to Colorado’s Governor Hickenlooper himself):

The partisan makeup of the majority of Colorado’s 22 judicial performance review commissions is similarly unbalanced.

“Survey Says!” Methodology Suspect, Statistically Invalid

The commissions rely heavily on surveys distributed to a selected subset of ”attorneys who had cases before the judge, other judges, court staff, jurors and court users.”  In other words, the surveys are overwhelmingly distributed to people with a vested interest in the existing system.

The lack of statistical validity for survey results as a method of analysis (due small sample size, rate of return, even sample bias) has been noted by numerous sources – including the commissions themselves.  The lack of statistical validity is particularly acute at the appellate court level – as even some of the major apologists for the current system have also admitted.

The survey sampling bias can also be politically manipulated by the commissions – as appears to be the case in one of this year’s (exceedingly rare) “do not retain” recommendations from the 20th Judicial District (Boulder County) commission “reviewing” District Court Judge Karolyn Moore.

As noted in a recent Daily Camera article, “Flaw in system led to ‘do not retain’ recommendation for Boulder County judge

  • an examination of the report shows that of the 297 attorneys to receive the confidential surveys, none was classified as a prosecutor. The report showed 91 criminal defense attorneys turned in surveys, along with 19 civil attorneys. Two respondents were classified as “other attorneys criminal.”

There is no other plausible explanation for such “sampling error” than deliberate manipulation of the surveys.

Other criticisms of the “survey methodology” have come from across the political spectrum; a recent Boulder Weekly article (“Bench Bias“) raises the specter of institutionalized “gender bias” in the review commissions (the “old-boy network” in action?)

A Durango Herald article (“When grading judges isn’t blind“) also alleged bias in the commission reviews.

Whether the bias(es) are of political, gender, racial, regional, or any other origin – the lack of transparency in the current system serves to cover up and perpetuate such problems.

Reform, Accountability, Transparency to DE-politicize Colorado Courts

Apologists for the current, non-transparent and unaccountable state-sponsored system support a continued cover-up of the existing politicization of Colorado’s judiciary.  They are complicit in a fraud perpetuated on the citizens of Colorado.

In contrast, Clear The Bench Colorado‘s approach supports substantive evaluations of judicial performance based on documented reviews of their primary “work product” (the rated judge’s written opinions, which are posted as a reference for readers to review) – a vote for transparency and accountability.

Don’t be “tricked” by the incestuous Legal Establishment apologists – and the partisan political appointee “review” commissions they are complicit in foisting on Colorado voters.

There is a clear public need and demand for substantive, independent evaluations of judicial performance – but, just as clearly, the “official” COJPE “rubberstamp reviews” and consistent recommendations to reflexively retain incumbents (99% overall, and a staggering 100% “retain” recommendation record at the appellate court level) is NOT a credible solution.

Clear The Bench Colorado has shown the way towards a method of substantive, informative, well-researched and extensively documented evaluations of judicial performance - a model that could (and perhaps should) be emulated nationwide.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

Federal Judge rebukes Colorado Supreme Court in ruling on 1st Amendment challenge to state’s campaign finance law

Senior U.S. District Judge John L. Kane strongly rebuked the Colorado Supreme Court in an Order issued Friday (10 October 2014) enjoining the enforcement of Colorado’s campaign finance laws that require registration, financial disclosure and reporting against a small group speaking out on public policy issues.

The Order held that, as applied to plaintiffs in this case, “Colorado registration and reporting requirements have unconstitutionally hindered their First Amendment right of free association.”

Judge Kane added, in a stinging rebuke to the Colorado Supreme Court,

This conclusion is so obvious, moreover, that having to adjudicate it in every instance as the Colorado Supreme Court implies is necessary itself offends the First Amendment. By setting in stone the uncertainty that precipitated this litigation in the first place, the Court’s interpretation chills robust discussion at the very core of our electoral process. [Order at 2]

This challenge to Colorado’s registration and reporting requirements applying to small issues-advocacy groups dates back over two years; the original court case, as announced in this press release from the Center for Competitive Politics (a public-interest advocacy organization working to “promote and defend First Amendment rights to free political speech” representing plaintiffs Coalition for a Secular Government) was filed on 2 July 2012.

The Complaint alleged that several provisions of Colorado’s Amendment XXVIII (and implementing state statute, the “Fair Campaign Practices Act” or FCPA) are overbroad, vague, and unconstitutionally infringe upon fundamental free speech rights, as applied to groups engaged in issues advocacy and public policy discussion that are not financed by “large campaign contributions made to influence election outcomes [that] allow wealthy individuals, corporations, and special interest groups to exercise a disproportionate level of influence over the political process” (Amendment XXVIII and FCPA, declaratory purpose).

Colorado’s Constitution (Amendment XXVIII) and state statute (the “Fair Campaign Practices Act” or FCPA) require registration, financial disclosure and reporting by “issue committees” – defined as:

(10) (a) “Issue committee” means any person, other than a natural person, or any group of two or more persons, including natural persons:
(I) That has a major purpose of supporting or opposing any ballot issue or ballot question; or
(II) That has accepted or made contributions or expenditures in excess of two hundred dollars to support or oppose any ballot issue or ballot question.

However, the $200 threshold was invalidated by a 2010 10th Circuit Federal Court case, Sampson v. Buescher - which, although ruling that some $2,000 in contributions and expenditures are “well below the line” at which Colorado’s regulatory burdens are constitutionally acceptable, failed to “draw a bright line below which a ballot-issue committee cannot be required to report contributions and expenditures” [Sampson v. Buescher at 30] – leaving a huge grey area under the law, in which issues-advocacy groups cannot be sure if they’re operating in compliance with the law, or not.

Colorado’s Secretary of State, Scott Gessler, attempted to clarify the rules and eliminate this grey area; after submitting public comment and testimony, including public hearings held on 15 December 2011 on rules changes oriented towards clarifying and reforming Colorado’s unconstitutional campaign finance laws.  (Clear The Bench Colorado‘s Director Matt Arnold spoke out in favor of many of the proposed changes), the Secretary set a new threshold of $5,000 for qualifying as an “issue committee” by rule – which was almost immediately challenged by groups with a history of advocating for restricting free speech, the left-leaning “Common Cause” and Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) groups (Common Cause v. Gessler, 2012).

The legal challenge to the Secretary of State’s rules changes to issue committee reporting thresholds – and the failure of the ballot initiative opposed by CSG in 2012 to qualify for the ballot – combined to delay resolution of the case, although the federal judge submitted an Order Certifying Questions asking the Colorado Supreme Court for clarification of Colorado’s campaign finance laws in October 2012.

The Colorado Supreme Court heard oral argument on the 1st Amendment challenge to Colorado’s campaign finance laws on 8 May 2013 – which, as a guest commentary by Center for Competitive Politics attorney Tyler Martinez noted, was ”Colorado’s Opportunity to Protect First Amendment Rights” in a case that could have had major implications for political free speech nationwide.

Unfortunately – over a year later – the Colorado Supreme Court, instead of striking a blow for free speech rights, punted.  After rejecting the Colorado Secretary of State’s appeal in his attempt to eliminate or at least clarify the legal “grey area” created by the 10th Circuit ruling in Sampson v. Buescher, the Colorado Supreme Court summarily dismissed the previously-submitted certified questions “in light of the Court’s decision in case 12SC783 Gessler v Colorado Common Cause, which was issued June 16, 2014” in an order dated, ironically, 2 years to the day after which the Complaint was originally filed – on 2 July 2014).

As a result, the case wound up back in federal court, without benefit of legal interpretation or guidance from the Colorado Supreme Court.  Following an evidentiary hearing on 3 October, Judge Kane issued his ruling the following Friday (10 October 2014).

After noting that

of the three “proper” justifications for reporting and disclosing campaign finances articulated by the Supreme Court in Buckley v. Valeo, 424 U.S. 1, 68 (1976), only the third – the public’s “informational interest” – applies to ballot issue committees [footnoting that the 1st, contribution limits, and 2nd, quid pro quo corruption, don't apply in ballot issues][Ruling at 9]

Judge Kane stated that based on the nature of the expenditures,

this is a a case where the state’s informational interest is truly “not obvious.”

since

Colorado’s issue committee disclosure laws are concerned with “large campaign contributions” that allow “wealthy individuals, corporations, and special interest groups to exercise a disproportionate level of influence over the political process.”

Judge Kane’s ruling concludes:

Unfortunately, given the Tenth Circuit’s refusal “to establish a bright line below which a ballot issue committee cannot be required to report contributions and expenditures” and the Supreme Court’s election not to answer the certified questions, I must make a ruling on the specific facts of this case based on what I determine, sui generis, to be reasonable. I say “unfortunately” because this state of affairs means that no precedent has been established and the stability this matter of considerable public importance so needfully requires will have to await another day or days and even more lawsuits.

Based on the foregoing, it is formally ORDERED and DECLARED that CSG’s expected activity of $3,500 does not require registration or disclosure as an “issue committee” and the Secretary is ENJOINED from enforcing FCPA disclosure requirements against it. [Ruling at 30]

Analysis:

Judge Kane’s ruling, although it decisively settles this case and grants relief (and offers prospective relief in future cases) to litigants in awarding attorney’s fees, ultimately fails to resolve the remaining “grey area” remaining as a result of Sampson v. Buescher‘s as-applied invalidation of the $200 threshold for issue committees in the face of the Colorado Supreme Court’s refusal in Gessler v. Common Cause to more broadly settle the issue of where the registration and reporting threshold passes constitutional muster.

Sadly, unless and until the Colorado Supreme Court (or, potentially, the Supreme Court of the United States) definitively rules on the issue, or until Colorado’s unconstitutional campaign finance laws are amended or reformed by ballot initiative and/or legislation, Colorado citizens wishing to associate and pool resources to speak out on issues of public policy will still have to fight for their free speech rights in court.

 Related Articles:

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

Clear The Bench Colorado helps Colorado voters “Know Your Judge” with substantive evaluations of judicial performance

“Know Your Judge” with substantive evaluations of judicial performance

(UPDATE: this article was also published as a Guest Commentary both online and in the Sunday, 19 October Denver Post print edition)

We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.
— Abraham Lincoln

As Coloradans prepare to cast their ballots in the 2014 elections, despite being bombarded with political ads and mailers, MOST voters have little to no information on up to a third of the people asking for their vote: our state’s 3rd Branch of government, the judges.

The official, government-sanctioned incumbent-protection “performance reviews” produced by the state’s Commissions on Judicial Performance (published and disseminated, at significant taxpayer expense, in the “Blue Book”) fail to provide much (if any) substance behind the published “recommendations” (almost uniformly in favor of “retaining” judicial incumbents in office).  In that respect, the Blue Book “reviews” are little more than (taxpayer-funded) political ads for incumbents.

The Commissions on Judicial Performance (groups of political appointees charged with evaluating and reporting on the job performance of judicial incumbents) routinely fail to actually evaluate judicial job performance or provide adequate information sufficient for voters to base a decision.  Summarizing an incumbent’s resume and tabulating the results of surveys sent out to a select group of lawyers and other judges fails to answer the question posed to voters, “do they deserve another term – and why?

As a Denver Post guest commentary by a former Judicial Performance commissioner noted,

There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters.
If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do.  Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations.  Some commentators and observers have denigrated the narratives as a “rubber stamp” exercise for retaining judges.

Why do we have political appointees (commissioners are appointed by the governor, attorney general, state legislators and the Chief Justice of the Colorado Supreme Court – the latter certainly seeming to have a conflict of interest) telling Coloradans how to vote?

Colorado voters deserve better information on these unelected officials, who (usually with little notice) exert enormous influence over their lives.  For a third straight election cycle, Clear The Bench Colorado has researched and evaluated the performance of the appellate court (statewide) judges appearing on the 2014 ballot (2 Supreme Court justices, 2 Court of Appeals judges), collected inputs on district and county judges from around the state, and published this information in an easy-to-read “scorecard” format as a resource for Colorado voters.

Our courts rule on important issues that seriously impact all Colorado citizens, including:

View Clear The Bench Colorado’s Evaluations of Judicial Performance 2014 for substantive evaluations of judicial performance – to better “know your judges” before casting your vote this year. (http://www.clearthebenchcolorado.org/evaluations-2014/)

Adams County District Court Judge Ted Tow rules that lawsuit challenging Aurora Gaylord project can proceed

Adams County District Court Judge Ted C. Tow ruled last Friday (29 August 2014) that a lawsuit challenging tax incentives offered by the city of Aurora to developers of the Gaylord hotel project can go forward.  Plaintiffs had challenged Aurora’s tax incentives – including creation of an “enhanced taxing area” and a special election to raise taxes to finance the project – violated Colorado’s Taxpayer Bill of Rights, or TABOR.

As reported in a recent Colorado Springs Gazette article,

The Aurora City Council 
authorized the enhanced taxing area and the election to raise taxes at a meeting in June 2011. Only one person voted in the election as the land included in the taxing area is owned by a single corporate entity.

Rather takes the “one man, one vote” principle to a whole new level, eh?

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

Jefferson County District Court Judge Stephen Munsinger rejects challenge to candidacy of Jane Barnes for HD23

District Court Judge Stephen Munsinger (Jefferson County, First Judicial District) ruled Thursday (21 August 2014) rejected a challenge to the candidacy of Jane Barnes (appointed to fill a vacancy to run in HD23) filed by the Democrat party in Jefferson County against the Jefferson County Republicans earlier this month.

The complaint (“Verified Petition Pursuant to C.R.S. 1-1-113“) sought to remove Jane Barnes as the Republican candidate for House District 23 due to failure to meet candidate vacancy committee replacement filing deadlines, after the previous candidate designated at the party’s county assembly withdrew from the race:

Pursuant to C.R.S. §1-4-1002(5), the party assembly vacancy committee may fill a vacancy in designation under C.R.S. §1-4-1002(1), and file a certificate of designation and written acceptance by the vacancy designee “no later than the close of business on the sixty-seventh day before the primary election.”

Since the “sixty-seventh day before the primary election” this year was 18 April, and the JeffCo HD23 vacancy committee did not meet until 28 April (with the candidate affidavit filed with the Secretary of State on 2 May 2014), the challenge sought to nullify the candidate designation and remove Jane Barnes from the ballot, leaving incumbent Max Tyler without a major party opponent in the November elections.

Democrat Party Attorney Ed Ramey, representing the complainants, argued that not only should the candidate designation for Barnes be nullified, but that it was “too late” for Republicans to designate another candidate, too:

“They have not properly done what they need to do to put anyone on the ballot for House District 23,” he said. “They can only properly vote for people who are properly on the ballot. These are the rules of the game.”
(Denver Post, “Colorado House candidate Jane Barnes can represent GOP, judge rules“)

Although Ramey’s argument closely followed the letter of the law (the election statute), attorneys for the respondent argued that the candidate designation was in “substantial compliance” with the law and no sufficient grounds existed to nullify the candidacy:

Attorneys for the GOP, the Jefferson County Clerk’s Office and the Secretary of State’s Office argued that the Democrats were making a “hyper-technical” argument about deadlines that would have the effect of disenfranchising voters. (Denver Post, ibid)

Judge Munsinger agreed, and rejected the complaint, noting the lack of any “systemic disregard” for the election code in certifying Barnes’ candidacy.

The court’s ruling also likely eliminated the possibility of a challenge to a similarly belated candidate designation via vacancy committee appointment in Arapahoe County’s HD41 filed just over a week ago after a previous “placeholder” candidate had similarly withdrawn back in April.  The newly-designated candidate for HD41, Molly Barrett, entered the race with eyes wide open and willing to fight in court, if necessary, to give voters of the district a choice in the general election.

The challenge highlights yet another problem with Colorado’s hopelessly tangled election laws, which have suffered from a “bandaid” approach (exacerbated by last year’s HB13-1303 and this year’s HB14-1164) offloading numerous confusing (and often contradictory) provisions onto the courts for “interpretation” and resolution.

It should be noted that the filing deadlines for vacancy committee replacements date back to when Colorado’s primary elections were held in August, rather than June; depending on the date of the nominating assemblies, it could literally be impossible for a vacancy committee to comply with the law and deadlines as written (particularly given the requirement to provide adequate written notice to vacancy committee members).

Colorado’s election and campaign finance laws, rules, and regulations stand in need of rigorous review and overhaul by the legislature – rather than being repeatedly kicked to the courts.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

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