Clear The Bench Colorado salutes those who have contributed most to establishing, and preserving, our freedoms as Americans: on this Memorial Day, we honor those who serve (or have served) in our nation’s armed forces, particularly those who have made the ultimate sacrifice.  As a military veteran and proud “Citizen Soldier” I strongly believe in the importance of saluting the service of all who have honorably worn the uniform.

In honor of “Band of Brothers” Dick Winters - who died this year, 2 January 2011 at age 92 - and of Airborne Soldiers past and present - CBTC shares the above video tribute.

What does all of this have to do with holding our Colorado Supreme Court justices accountable to the rule of law and the Colorado Constitution?  Quite a lot, actually…

As a proud veteran of the U.S. military (including service in the Colorado Army National Guard), I take my oath of enlistment - “I will support and defend the Constitution of the United States and the State of Colorado [emphasis added] against all enemies, foreign and domestic”  - seriously; very seriously.

Many of our elected (and unelected) officials seem to have a much more cavalier attitude towards their own oath of office.

Our Colorado Supreme Court justices also swear an oath on taking office, which begins:  “I will support the Constitution of the United States and the Constitution of the State of Colorado.” Note that the oath of office does not state that ”I will support only those parts of the Constitution I like or with which I personally agree or empathize.”

Unfortunately, the Colorado Supreme Court has consistently ruled against the Colorado Constitution’s Article X, Section 20 (TABOR) in every case it has heard - despite the clear intent and letter of the law that “[i]ts preferred interpretation shall reasonably restrain most the growth of government.” Several of the current justices are oathbreakers - and dishonor the service of the men and women of the United States military and law enforcement agencies who put their lives on the line to support and defend our Constitution.  They have proven themselves unworthy of the high office they occupy…

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.

Surely make you lose your mind…

The Colorado Car Tax (er, “fee”) increase - ironically dubbed ‘FASTER’ - passed in the 2009 legislative session made another lap in media coverage this past week with a broadcast on the ‘Devil’s Advocate‘ television program and publication of a pair of “Issue Backgrounder” papers.

The “Issue Backgrounder” papers each address a specific aspect of the FASTER legislation, focusing in on the “Bridge Enterprise” (a ‘government-owned business’ within the Colorado Department of Transportation, or CDOT).  One paper addresses how the “Bridge Enterprise” has raised $300M in debt without (constitutionally-required) voter approval (and the long-term implications for Colorado’s fiscal stability); the other more generally addresses how the Colorado Bridge Enterprise contravenes the Colorado Constitution.

Both papers are well worth reading, and provide additional detail on just how bad even this single aspect of the FASTER Colorado Car Tax (er, “fee”) is for Colorado citizens.

However, both papers together only tell half of the story (almost literally).  The ‘Colorado Bridge Enterprise’ is only one of two new ‘government-owed businesses’ established by the FASTER legislation (the other being the ‘Colorado Transportation Enterprise’ charged with collecting and spending the ‘road safety surcharge’ tax - er, “fee”) .  Both “enterprises” are overseen by an 11-member appointed (ergo, unaccountable to the public) board (coincidentally, the same 11 people who make up the Colorado Transportation Commission).  Significantly (although unfortunately unremarked in both papers), both ‘enterprises’ are also authorized to use eminent domain to seize private property.

The television broadcast is informative and entertaining as well, but unfortunately also misses significant parts of the story.

The Colorado Car Tax - It’s Worse Than You Think

Also unremarked in both papers - and on the television broadcast as well - is the fact that FASTER actually comprises multiple tax increases (er, “fees”) in a single piece of legislation, blatantly violating the constitutional requirements to “receive voter approval in advance” for “any new tax, mill levy above that for the prior year, valuation for assessment ratio increase for a property class, or extension of an expiring tax, or a tax policy change directly causing a net tax revenue gain to any district.” (Colorado Constitution, Article X, Section 20 - the ‘Taxpayer’s Bill of Rights’).  The “bridge fund fee” and the “road safety surcharge fee” increase each year for three years (yep, that’s 3 tax increases in one!), in addition to imposing an entirely separate “fee” on car rentals as well.  Oh, and don’t forget the “late fees” too…

But all of this is necessary “to preserve our crumbling transportation infrastructure,” right?  That was the justification for passing the bill - along with claims that any and all “fees” collected “shall be used exclusively for the construction, maintenance, and supervision of the public highways of the state.”   Says so right in the legislative language (43-4-810), so it must be true, correct?

Not so much.  The dirty little secret of the FASTER bill is that many of the taxes (er, “fees”) collected don’t go towards the construction or maintenance of roads or bridges at all, but for “multi-modal and demand-side transportation solutions” - such as the desire of certain state Senators for streetcars in Denver - justified by other language in a following section (43-4-812):

43-4-812. Use of user fees for transit - legislative declaration.
(2) THE GENERAL ASSEMBLY HEREBY FINDS AND DECLARES THAT THE FUNDING OF TRANSIT-RELATED PROJECTS AUTHORIZED BY SUBSECTION (1) OF THIS SECTION CONSTITUTES MAINTENANCE AND SUPERVISION OF STATE HIGHWAYS BECAUSE IT WILL HELP TO REDUCE TRAFFIC ON STATE HIGHWAYS AND THEREBY REDUCE WEAR AND TEAR ON STATE HIGHWAYS AND BRIDGES AND INCREASE THEIR RELIABILITY, SAFETY, AND EXPECTED USEFUL LIFE.

In fact, the bill MANDATES state spending of $10 Million per year on “transit-related projects.”

It’s an outrageous semantic shell game - and a blatant violation of your constitutional rights.

To sum up: the “FASTER” car tax increase raised vehicle registration fees by $22.50-55 per vehicle, including a “road safety surcharge fee” of $16-$39 per vehicle, PLUS a “bridge fund fee” of $13-$32 per vehicle (phased in at 50%/75%/100% each of the first 3 years ).  Plus mandatory “late fees” of $25/month (capped at $100) - for all “vehicles” (including trailers barely even worth that much).

All while creating two new ‘government-owned’ bureaucracies with power to spend, borrow, & seize private property unconstrained by the Taxpayer’s Bill of Rights and not accountable to the people.

Oh, and increasing mandatory spending by over $10 Million per year on purposes other than roads, bridges, or other transportation infrastructure used by those paying the “fees.”

Most of the politicians who did this to you - including Governor Bill Ritter, Senate sponsor Dan Gibbs, and House sponsor Joe Rice - have paid the political price, either quitting office or being defeated at the ballot box; however, the real culprits, without whom none of this would have been possible (thanks to a Nov. 2008 court ruling to allow “fees” to act like taxes, in violation of your constitutional rights) escaped justice (except for Chief Justice Mary Mullarkey, who quit rather than face the voters, the remaining members of the Colorado Supreme Court who aided and abetted FASTER were retained in office for another 10-year term).

Unfortunately, these politicians in black robes remain ‘at large’ and able to continue to assault your constitutional rights for years to come.

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.

Apparently not content with killing TABOR (Colorado’s Taxpayer Bill of Rights constitutional amendment) by the thousand cuts (well, 15 and counting) of Colorado Supreme Court “interpretations” of TABOR’s viability in individual cases (most notoriously, the 2009 “Mill Levy Tax Freeze” property tax increase and the 2008 “fees don’t count as taxes” case leading to the Colorado Car Tax), TABOR’s foes have decided to swing for the bleachers by targeting the amendment’s passage via the citizen initiative process - which the lawsuit claims is an unconstitutional practice.

The lawsuit was filed in Federal court on Monday by a group predominantly composed of current and former elected officials (including both Democrats and Republicans, although all current Republican legislators and the party organization vigorously oppose the lawsuit, in defense of the Colorado Constitution and the right of citizen initiative).  The lead attorney and “mastermind” behind the lawsuit is “superlawyer” Herbert L. Fenster - who has been shopping around the idea for over a year before finding enough plaintiffs and other attorneys (including former Democrat Congressman David Skaggs and former Democrat state senator Mike Feeley) to sign to the case.  Fenster and Skaggs both work at the firm McKenna, Long & Aldridge LLP, while Feeley works at the politically connected Brownstein Hyatt Farber Schreck law firm (a powerhouse Democrat political brokerage).

However, for a “superlawyer,” Fenster’s lawsuit is based on the most tenuous of legal grounds…

Legal precedent - including two relevant Supreme Court of the United States (SCOTUS) decisions - is clear; Fenster’s lawsuit is frivolous, the “Republican form of government” language in the Constitution’s “Guarantee Clause” (United States Constitution, Article IV, Section 4 - “The United States shall guarantee to every State in this Union a Republican Form of Government“) has been repeatedly ruled non-justiciable (meaning, not subject to determination by the courts), and constitutional constraints on government are, by definition, constitutionally allowed…

The two relevant SCOTUS cases on the “Guarantee Clause” have unambiguously held the “Republican form of government” language to be non-justiciable:

In Luther v. Borden, 48 U.S. 1 (1849), the Supreme Court rejected an attempt to put the “republican character” of state government subject to judicial review, holding that “it rests with Congress to decide what government is the established one in a State … as well as its republican character.”  The court, properly exercising judicial restraint, held the “Guarantee Clause” to be a political question, not a judicial one - and therefore not subject to review by the courts (i.e. non-justiciable).

A more recent case, Pacific States Telephone and Telegraph Company v. Oregon, 223 U.S. 118 (1912) dealt specifically with a challenge to the use of citizen initiatives in states (such as Colorado’s TABOR Amendment). In that case, the Court also held that challenges to a state’s “republican character” are non-justiciable political questions:

The enforcement of the provision in § 4 of Art. IV of the Constitution that the United States shall guarantee to every State a republican form of government is of a political character, and exclusively committed to Congress, and as such is beyond the jurisdiction of the courts.

It doesn’t get more clearly stated than that.

Since even a casual review of the legal literature by a non-attorney can turn up the clear and definitive legal precedent that leaves the lawsuit devoid of justification and any prospect for success in court, Fenster’s Folly clearly meets the definition of a “frivolous, groundless, and vexatious” lawsuit.  The Colorado Attorney General (along with any parties joining in the defense) should pursue recovery of costs (taxpayer dollars) spent in defending the suit against all attorneys and plaintiffs involved.

Although an award of attorneys’ fees is rare (Clear The Bench Colorado won just such an award against “Colorado Ethics Watch” - CEW, pronounced “sue”, it’s what they do - one of only a few in the last decade) it can be done (although actually collecting on the judgement may take months, or years), when opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.

Such abuse of the courts for political posturing can and should be discouraged…

Given the unambiguous and overwhelming constitutional precedent against the case, Fenster’s Folly must be viewed for what it clearly is: a massive PR stunt that’s merely the opening salvo in part of a concerted attack on Colorado’s Constitution and the citizen initiative process in Colorado.

Ironically, part of that attack is likely to come in the form of legislatively referred ballot measures and/or “citizen” initiatives (such as state senator Rollie Heath’s “for the children” tax hike proposal) along with additional court cases to nibble away at TABOR (the Colorado Supreme Court is a perfect 0-for-15 in upholding Article X Section 20 of the Colorado Constitution - almost as perfect losers as the 0-for-16 2008 Detroit Lions; another reason Colorado has been called a “Judicial Hellhole“).

Additional references:
A more detailed (and highly informative) discussion of the constitutionality of the citizen initiative and referendum processes may be found in the Texas Law Review article, “A Republic, Not a Democracy?  Initiative, Referendum, and the Constitution’s Guarantee Clause” by Professor Robert G. Natelson.

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.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
1st Amendment to the United States Constitution, ratified 15 December 1791

Ruling elites - be they monarchs or oligarchs, dictators or demagogues, or even elective bodies purporting to represent the will of the people - have long sought to suppress criticism and competition through the use of laws or regulations restricting the right and ability of individuals and groups to organize and speak out effectively.

Techniques have evolved from outright bans and brutal repression to a more subtle approach: suppression by regulation and legal intimidation.

In today’s Colorado, for example, your right to free speech on political issues is not banned - perish the thought! - although to practically and effectively exercise that right, by collecting and spending money to reach a mass audience, you’ll need to fill out a few forms…

Actually, you’ll need to do far more than that.  Under Colorado’s campaign finance regime, if you wish to speak out on issues or questions that may appear on the ballot, you’ll need to form and register an “Issue Committee” - as defined in Colorado Constitution Article XXVIII, § 2(10)(a):

(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.
(b) “Issue committee” does not include political parties, political committees, small donor committees, or candidate committees as otherwise defined in this section.

The amount of paperwork and resources (time and/or money) required in order to simply exercise a fundamental right (freedom of speech) is significant, and itself exerts a chilling effect on civic or political participation.  Individuals and small groups, particularly those becoming active for the first time, face a daunting amount of red tape: establishing and registering a committee, opening a separate bank account, keeping detailed financial records, filing frequent and detailed reports of contributions and expenditures - all under threat of fines and other legal sanctions for mistakes, no matter how minor.

Even if they DO follow the rules to the letter, committees may STILL be forced to defend their right of civic participation in court, thanks to the proliferation of legal attack groups (such as the grossly misnamed “Colorado Ethics Watch” - CEW, pronounced “sue”, it’s what they do) that exist solely for the purpose of harassing and diverting resources from ideologically opposed organizations.  The cost of defending against such attacks is another deterrent to participation.  Even a successful defense can cost tens of thousands, and even defeating an attack so completely without merit (in legalese, a “frivolous, groundless, and vexatious” complaint such as the CEW attack on Clear The Bench Colorado) that the judge takes the rare step of awarding attorneys fees to the defense can divert scarce resources (and take months, if not years, to collect). [Ed. to date, CEW still refuses to pay what they owe to CTBC, continuing to contest the judgment against them all the way to the Colorado Court of Appeals]

Origins of Colorado’s Campaign Finance Regime

Interestingly, many of these restrictions on freedom of (political) speech are a relatively recent development.  In 2002, as part of the wave of “campaign finance reform” measures that swept in the subsequently-found-unconstitutional McCain-Feingold law on the national scene, Colorado voters were persuaded to vote for Colorado Amendment 27 (which became Colorado Constitution Article XXVIII).

Many of these so-called “campaign finance reform” measures have since been found unconstitutional, as violating First Amendment rights of freedom of speech and freedom of association - in a word, censorship.  However, until challenged, many of the laws remain on the books - forcing individuals to fight for their fundamental constitutional rights in court.

Constitutional Challenges to Colorado’s Campaign Finance Regime

One such recent court case originating in Colorado, Sampson v. Buescher, resulted in a Federal court (10th Circuit) holding certain sections of Colorado Constitution Article XXVIII in violation of the United States Constitution.  Specifically, provisions of Article XXVIII were held to unduly burden the rights of free association and free speech protected under the 1st Amendment, among our most cherished rights.

The rationale behind Article XXVIII (as Amendment 27) was to reduce “disproportionate influence” over the political process by “large campaign contributions.”  The 10th Circuit held that Colorado’s $200 trigger for requiring committee registration and subsequent disclosure and reporting failed to meet the test of either “large contributions” or “disproportionate influence” that might justify public interest, and was therefore an unconstitutional  burden on the freedoms of speech and association protected under the First Amendment.

Rolling Back the Regime - Restoring Constitutional Protections

In response to the 10th Circuit’s ruling in Sampson v. Buescher, the office of Colorado Secretary of State (beginning under outgoing SOS Buescher, continued and successfully concluded under newly-elected Secretary of State Scott Gessler), pursuant to the Secretary’s constitutional rule-making authority under Article XXVIII, Section 9(1)b, proposed a rules change to raise the registration and reporting threshold for Issue Committees to $5,000 in order to bring Colorado’s requirements in line with the court’s ruling.

Following a period of soliciting and reviewing written comments on the draft proposed rule, the office of Secretary of State held public hearings to allow concerned citizens and groups to express comments, concerns, questions, and suggestions.

It is interesting to note that of those who submitted written comments, those in favor of the new rule (relaxing the threshold for registering and reporting committee activities) included over a dozen individual citizens, and no special interest groups.  Conversely, those submitting comments against the new rule (advocating for continued imposition of what has been ruled an unconstitutional infringement of free speech) were ALL representatives of special-interest groups and organizations, including:

• Elena Nunez of Colorado Common Cause
• Jenny Flanagan of Colorado Common Cause
• Luis Toro of “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do).  (Comments submitted 1-26-11 and 5-3-11)
• Mark Grueskin, Democrat party attorney and frequent campaign finance litigant (Comments submitted 1-10-11, 1-26-11 and 5-6-11)
  Astute observers of Clear The Bench Colorado (or of Colorado politics in general) may recall Mark Grueskin from his role in establishing a shadowy and well-funded special-interest group to counteract the Clear The Bench Colorado judicial accountability efforts during the 2010 judicial retention elections.

(The full list of written comments submitted by interested individuals and groups before and after the hearing is available on the Secretary of State’s website)

Also of interest: NONE of the aforementioned special-interest groups, despite their professed zeal for “open, transparent, and accountable” practices including full disclosure and reporting of all contributions and expenditures, make their finances available for public view.  NONE.

Several individual citizens (but only a single representative of the above-listed special-interest groups, Jenny Flanagan of Colorado Common Cause) showed up in person to testify - almost exclusively (one exception) in favor of relaxing the threshold for Issue Committee registration and reporting).  Citizen activist Ari Armstrong (of Free Colorado) was on hand to testify, and also recorded testimony of others.

Clear The Bench Colorado Director Matt Arnold submitted written comments before the hearing, and also showed up in person to testify (video courtesy of Ari Armstrong, Free Colorado)

Both written comments and oral testimony conclude with what I consider the most powerful argument against Colorado’s campaign finance regime:

In summary: the attack dogs, firehoses and truncheons previously used to harass and intimidate citizens wishing to exercise their rights of free speech and association have been replaced as tools by the more ”civilized and sophisticated” use of lawyers and bureaucrats with the power to impose fines & penalties - even imprisonment - instead of mere physical beatings.

The overall effect - intimidation and abuse of power - remains remarkably similar.

Following the overwhelming weight of public comment and testimony in favor of raising the threshold for Issue Committee registration and reporting, in what must be considered a victory (albeit incremental) for free speech rights, the office of Secretary of State adopted the new rule on 13 May 2011.

Additional commentary on Colorado’s campaign finance regime (H/T Ari Armstrong):

• SOS Looks To Mitigate Burden Of Campaign Censorship Laws, 2 May 2011
• Why Colorado’s Campaign Laws Constitute Censorship, 5 May 2011
• CO Campaign Laws Chill Speech, 6 May 2011
• Colorado’s Campaign Laws Throw Common Sense Out The Window, 13 May Grand Junction Free Press
• Public’s ‘right to know’ can clash with right free speech, 14 May Colorado Springs Gazette

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.

In the latest development in the sad, sorry saga of Colorado Congressional Redistricting this year, Representative Ed Casso (D-Commerce City) announced Friday his intent to abdicate the legislature’s constitutional responsibilities - preemptively giving up any future legislative role in defining Colorado’s Congressional district boundaries, and completely removing the process from any public accountability.

Currently, the Colorado Constitution, Article V Section 44, unambiguously assigns this responsibility to the legislative branch:

Text of Section 44:Representatives in Congress.
The general assembly shall divide the state into as many congressional districts as there are representatives in congress apportioned to the state by the congress of United States for the election of one representative to congress for each district. When a new apportionment shall be made by congress, the general assembly shall divide the state into congressional districts accordingly.

Casso proposes to remove this responsibility from the elected legislature, outsourcing it instead to an appointed (and unaccountable) commission, much like the process by which state legislative district boundaries are drawn by the state Reapportionment Commission.  Casso’s stated intent is to, quote, “permanently remove the politics associated with this process.”  However, as experience has shown with the Reapportionment Commission, particularly the battles over partisan affiliation of the legislative, gubernatorial, and judicial appointments who make up that commission’s eleven members, outsourcing has not removed the politics from the process; it has only removed the politics from public view.

Casso’s proposal also highlights a disturbing trend of outsourcing legislative responsibilities to boards, commissions, and bureaucrats who conduct public business out of the public eye and without public accountability.

This ‘Progressive’ ideal of “Expertism” - that if we simply hand over control to “experts” who will dispassionately analyze the facts and generate “ideal” solutions - is diametrically opposed to the founding American principles that the Citizen is sovereign, not merely a subject of the ruling class, however composed.

To the extent that this trend foists legislative and executive branch responsibilities onto the judicial branch, it also accelerates a dangerous trend of politicizing the judiciary, already exacerbated by the Colorado Senate’s intentional strategy of sending Congressional Redistricting to the courts, decreasing prospects for fair and equal treatment in the courts and undermining the foundations of the rule of law.

Casso’s legislative outsourcing proposal, since it seeks to overturn part of the Colorado Constitution, would have to overcome several obstacles before  it could become law:

Casso’s proposal would require a two-thirds majority vote in the House and in the Senate to place a question on the November 2012 ballot asking voters if they would prefer that an appointed commission take the reins of the redistricting process away from state lawmakers.

Colorado voters would then have to agree to sign away their rights to maintain accountability over the Congressional Redistricting process.

Abdication or Accountability?

In fact, there are only TWO mandatory responsibilities of the legislature:

1. annually, draw up a state budget; and
2. decennially, draw up Congressional district boundaries.

Casso’s proposal would remove one of those two mandatory, constitutional legislative responsibilities.  If Casso truly believes that he and his legislative colleagues aren’t up to the task (resembling a student council, handing off all of the difficult decisions to the adults in the principal’s office), why bother with a state legislature at all?

As an alternative, perhaps providing an incentive to legislators to do the job for which they were elected might be effective.  Here’s a proposal:

Until state legislators discharge these mandatory duties (for which they are elected and paid), NO OTHER legislation may be enacted or go into effect - PERIOD.

Think they might be able to work something out under those terms and conditions?

Additional references:

• Constitutional Provisions Controlling Reapportionment/Redistricting (official Colorado state website, which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)
• Redistricting in Colorado (Ballotpedia site - although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site - contributions come from a variety of sources and are frequently edited - proceed with some skepticism)

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.

For the fourth consecutive decade, the ultimate decision on the shape of Colorado’s Congressional districts will fall to the courts.  Despite Colorado’s clear constitutional language assigning responsibility for Congressional redistricting to the General Assembly, the state legislature again failed to pass a redistricting bill and abdicated responsibility to the judicial branch - further politicizing the courts.

This intentional politicization of the judiciary - increasingly seen as acting as just another category of politician, distinguished from the other branches only by a unique mode of dress (black robes) - is corrosive to our institutions, and undermines the sanctity of the rule of law.

The Colorado Constitution, Article V Section 44, unambiguously assigns this responsibility to the legislative branch:

Text of Section 44:Representatives in Congress.
The general assembly shall divide the state into as many congressional districts as there are representatives in congress apportioned to the state by the congress of United States for the election of one representative to congress for each district. When a new apportionment shall be made by congress, the general assembly shall divide the state into congressional districts accordingly.

For the second consecutive decade, Colorado is treated to the sad spectacle of the state Senate majority blocking any possibility of compromise legislation and intentionally sending the issue to the courts.  The plan has apparently been in the works for at least a year - with the 2010 session closing out with the “Mary-mandering” bill (HB1408) enabling the courts to consider “non-neutral factors” such as partisan affiliation when evaluating redistricting plans.

The first step in the court battle over Colorado Congressional redistricting was taken even before the legislature had officially adjourned, with the filing of two lawsuits (one from the Democrats, one from the Republicans) on Tuesday, 10 May 2011, in Denver District Court (which has original jurisdiction).

As reported in Law Week Colorado,

Competing lawsuits over the redistricting of Colorado’s Congressional districts have been randomly assigned to Denver District Court Judge William Hood, who has been registered as an unaffiliated voter since April 2008. His previous political affiliation wasn’t immediately known.

Hood, a 2007 appointee of Democratic former Gov. Bill Ritter, was at the time of his appointment a lawyer with Denver law firm Isaacson Rosenbaum. Hood was retained in the 2010 judicial retention election [Ed. Note: Hood will therefore next be subject to a retention vote in 2016, since District Court judges serve a term of 6 years]

However, the case may not remain with Judge Hood, due to his past association (working together at the same law firm) with Democrat attorney Mark Grueskin, as also reported by Law Week online:

Denver District Judge William Hood, who was randomly assigned to hear Colorado congressional redistricting lawsuits filed Tuesday by Republicans and Democrats, once was a law-firm colleague of the lead attorney for the Democratic side.

Before his appointment to the Denver bench in 2007, Hood worked at Isaacson Rosenbaum, the firm that until recently employed Democratic Party lawyer Mark Grueskin.

Asked about a possible conflict between himself and the judge, Grueskin said, “Even before you get to the issue that he and I were formerly colleagues, he may have a docket that’s full.”

Astute observers of Clear The Bench Colorado (or of Colorado politics in general) may recall Mark Grueskin from his role in establishing a shadowy and well-funded special-interest group to counteract the Clear The Bench Colorado judicial accountability efforts during the 2010 judicial retention elections.

In any event, the case (combined cases, actually) bears careful watching as it plays out in court.

• Read the Republican redistricting lawsuit here.
• Read the Democrat redistricting lawsuit here.

Additional references:

• Constitutional Provisions Controlling Reapportionment/Redistricting (official Colorado state website, which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)
• Redistricting in Colorado (Ballotpedia site - although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site - contributions come from a variety of sources and are frequently edited - proceed with some skepticism)

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.

“No man’s life, liberty, or property is safe while the legislature is in session.” - Mark Twain (1866)

Although the 2011 legislative session is now (happily) concluded and part of the history of Colorado Politics, the effects of the bills passed this session and last will continue to be felt for some time…

Case in point: the majority of the “Dirty Dozen” tax increase bills passed during the 2010 legislative session (which exploited a Colorado Supreme Court ruling to take more of your money without asking, as is required under the Colorado Constitution) remain in effect.  Although the new legislative majorities were able to repeal two of the “Dirty Dozen” tax increases this year - last month, the legislature made progress towards “Cleaning up the ‘Dirty Dozen’ tax increases” with repeal of last year’s Agriculture tax increase, HB10-1195, Suspend Ag Sales & Use Tax Exemption (Ferrandino/Heath), and downloaded software tax increase, (HB 10-1192, Sales and Use Tax of Standardized Software (Pommer/Heath) - the remaining (unconstitutional) tax increase laws passed in 2010 (such as the “Candy Tax” and - my dog’s least favorite - the “Doggy Bag Tax”) remain on the books.

The “Dirty Dozen” was the name given to a package of twelve legislative bills which sought to increase tax revenues by eliminating existing tax credits or exemptions - an end-run around the constitutional requirement (in Article X, Section 20 - colloquially known as the Taxpayer’s Bill of Rights, or TABOR) for “voter approval in advance for… any new tax, tax rate increase, or… tax policy change directly causing a net tax revenue gain to any district.”

Even going into the last days of the 2011 legislative session, it appeared that what may have been the least popular of last year’s “Dirty Dozen” tax increases, the ‘Amazon Tax’ (HB 10-1193, Sales Tax Out of State Retailers (Pommer/Heath), was also likely to be another one to bite the dust.  Since the so-called ‘Amazon Tax’ was not only in violation of the Colorado Constitution, but also infringed upon the U.S. Constitution’s 4th Amendment protections against ‘unreasonable searches and seizures’, it had been challenged (in Federal Court - in order to avoid the judicial hellhole of Colorado jurisprudence) and prevented from enforcement by court injunction, anyway.  Given that the tax isn’t being collected anyway, and continuing to defend the tax in court keeps racking up taxpayer dollars in legal expenses, repealing the bill would seem to be a no-brainer.

That proved to be true in the House, where a bill introduced to repeal and replace the tax (HB 11-1318, Notification of Use Taxes, Stephens/Schaffer) appeared to be on the fast track to passage; the ‘Amazon Tax’ repeal bill was swiftly and overwhelmingly approved (on a 58-6 bipartisan vote) in the House, but was prevented from coming to a vote (killing it via a procedural move without having to take a recorded position) by Senate President Brandon Shaffer (D-Longmont).

Sometimes, it would appear, legislative action is not sufficient to succeed in undoing previous acts of the same legislature putting one’s life, liberty, or property at risk…

NONE of the “Dirty Dozen” tax bills would have seen the light of day if not for last year’s legislature’s exploitation of a Colorado Supreme Court ruling to bypass the Colorado Constitution’s requirement to receive “voter approval in advance for… any new tax, tax rate increase, or… tax policy change directly causing a net tax revenue gain to any district.”

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 Director Matt Arnold discussed the hot topic of Congressional Redistricting and state legislative district Reapportionment in Colorado - explaining the process and highlighting the differences in the process of drawing boundaries for Congressional and state legislative districts - on Backbone Radio (710 AM KNUS) Sunday evening, 8 May 2011.

Listen to the Backbone Radio podcast here (note: the discussion was interrupted briefly by an off-topic phone call referring back to another segment during which I was drawn into a discussion on the recent “Amycare” bill, SB 11-200 Healthcare Benefit Exchanges - and the subsequent El Paso County GOP “gag order” resolution to suppress criticism of the bill)

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.

For the second consecutive decade, Colorado is treated to the sad spectacle of the state Senate majority abdicating their constitutional responsibility to pass a Congressional redistricting bill, and intentionally sending the issue to the courts to decide.

The plan has apparently been in the works for at least a year - with the 2010 session closing out with the “Mary-mandering” bill (HB1408) enabling the courts to consider “non-neutral factors” such as partisan affiliation when evaluating redistricting plans.

Senate Democrats even filibustered their own bill in order to avoid a vote…

Although no one said it would be easy, it IS the responsibility of the General Assembly - and no other body or branch of government, according to our state Constitution (Article V, Section 44) - to do the job.

In fact, there are only TWO mandatory responsibilities of the legislature:

1. annually, draw up a state budget; and
2. decennially, draw up Congressional district boundaries.

Senate Democrats intentionally abdicated their constitutional responsibility, to an imperial judiciary - failing to do the job they were elected to perform, and letting down the state’s voters.

We have never voted to be ruled by judges - yet tonight, another piece of control and accountability has been surrendered to the judiciary by a feckless Senate majority.

This intentional politicization of the judiciary - increasingly seen as acting as just another category of politician, distinguished from the other branches only by a unique mode of dress - is corrosive to our institutions, and undermines the sanctity of the rule of law.

Now more than ever - it’s time to support judicial accountability and Clear The Bench, Colorado!

Additional references:

• Constitutional Provisions Controlling Reapportionment/Redistricting (official Colorado state website, which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)
• Redistricting in Colorado (Ballotpedia site - although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site - contributions come from a variety of sources and are frequently edited - proceed with some skepticism)

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.

As the 2011 Colorado legislative session draws to a close (and with it, the prospects for the General Assembly to exercise its decennial constitutional obligation to re-draw Colorado’s Congressional Districts, the final chance for Citizens to weigh in comes down to the wire.  Since the legislative session MUST conclude by midnight Wednesday, and sufficient time must elapse between 1st, 2nd, and 3rd readings of a bill, Tuesday is the last possible opportunity for a compromise Redistricting bill to be introduced and for Citizens to express their opinion.

Last week on Thursday, 5 May 2011, both the House and Senate held hearings soliciting Citizen testimony on the competing maps under consideration.  MANY ordinary Colorado Citizens showed up to testify, most (overwhelmingly) critical of the Senate (Democrat) Redistricting map. Douglas County was especially well represented - perhaps they were perturbed by the Senate (Democrat) map’s placing them in the same Congressional District with Boulder?

Clear The Bench Colorado Director Matt Arnold offered testimony on the competing Congressional Redistricting maps, discussing the relevant constitutional and statutory language and applicable case law.  The following excerpt recreates that testimony as best as possible from memory and my scribbled notes.

“Good afternoon.

My name is Matt Arnold; I am representing myself as a Citizen, and also as the Executive Director of Clear The Bench Colorado, a nonpartisan, non-profit organization established to educate the public about, and promote accountability for, the Colorado judiciary, our third branch of state government.

Due to the high potential for the Congressional Redistricting issue to be ultimately decided by the courts and the troubling precedent of judicial usurpation of the constitutional responsibility of the legislature in the most recent redistricting court case (in which the Colorado Supreme Court essentially declared itself ‘part of the General Assembly’ for the purpose of redistricting), I rise to offer testimony on the relevant constitutional, statutory, and case law guidelines governing redistricting in Colorado.

I am not married to any particular map - but I am wedded to the Constitution.

Over a decade ago, I raised my right hand and swore an oath to “support and defend the Constitution” - of the United States and the State of Colorado.  Each of you, on taking office, swore a similar oath - and are equally bound by that oath of office, as a condition of your service.

The Colorado Constitution - Article V, Section 47 - imposes several distinct mandates on the composition of Colorado’s Congressional and state legislative districts:

Text of Section 47:

Composition of Districts.

(1) Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible. Each district shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap.

(2) Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts. Within counties whose territory is contained in more than one district of the same house, the number of cities and towns whose territory is contained in more than one district of the same house shall be as small as possible. When county, city, or town boundaries are changed, adjustments, if any, in legislative districts shall be as prescribed by law.

(3) Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible.

Nowhere in the relevant constitutional language, statutory language, or even relevant case law is there ANY reference to “competitiveness” as a criterion guiding the composition of Congressional districts.

“Competitiveness” is NOT - however defined - a factor to be considered in drawing Congressional district boundaries.

Indeed, the very notion of “competitiveness” is a false construct - a canard.

Particularly when defined on the basis of partisan affiliation among registered voters, the very notion is laughable.  Republicans, Democrats, and Unaffiliated voters differ significantly by area - a Denver “R” is different from a Douglas County “R”, as a Denver “D” differs from an Alamosa “D” or a Baca “D.”

People - and their interests - are defined by more than voter registration partisan affiliation.

Finally - I strongly urge the members of the General Assembly to keep it out of the courts!

Despite the apparent intentions of some to reprise the strategy from the 2000 Redistricting experience - indicated by passage of the so-called “Mary-mandering” legislation at the close of the 2010 legislative session which enables consideration of “non-neutral factors” in court evaluation of redistricting plans - it remains the constitutional duty and responsibility of the General Assembly, and the General Assembly alone.

Do Your Job! Pass a Redistricting bill, carry out - don’t abdicate - your responsibilities as legislators.

Thank you.”

Clear The Bench Colorado urges Colorado citizens to take advantage of what may be a final opportunity to weigh in on how - and whether - the Colorado General Assembly exercises its constitutional duty (it IS the responsibility of the General Assembly - and no other body or branch of government, according to our state Constitution (Article V, Section 44) - to do the job.  Contact your state representatives and senators and urge them to carry out their responsibilities, do their job, and pass a redistricting bill.

Additional references:

• Constitutional Provisions Controlling Reapportionment/Redistricting (official Colorado state website, which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)
• Redistricting in Colorado (Ballotpedia site - although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site - contributions come from a variety of sources and are frequently edited - proceed with some skepticism)

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.