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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.”


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]


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.

Retrospective: Clear The Bench Colorado Director Matt Arnold panelist at National Conference on Evaluating Appellate Judges

Three years ago today, the Denver-based  Institute for the Advancement of the American Legal System (IAALS) – “a national, non-partisan organization dedicated to improving the process and culture of the civil justice system” – hosted a National Conference on Evaluating Appellate Judges (on 11-12 August 2011) at the University of Denver (Sturm Hall, 2000 E. Asbury Avenue, Denver CO 80208).

Clear The Bench Colorado Director Matt Arnold was, by special invitation, a featured panelist on the topic of “Evaluating Appellate Judges: Are we doing it right? How can we do it better?

(Short answers: “NO”, and “view our Evaluations of Judicial Performance page for an idea”).

To the Institute’s credit, they (IAALS) extended the invitation even after being taken to task for their involvement in the “Know Your Judge” campaign which likely violated Colorado campaign finance laws in advocating against Clear The Bench Colorado’s judicial accountability efforts during the state’s 2010 judicial retention elections without ever bothering to register with the Office of Secretary of State, as required by law.

Conference panelists and attendees shared widespread agreement on the need for substantive evaluation of judicial performance (even as opinions differed on the best means for reaching that goal) as a “vital component for ensuring public trust and confidence in the judiciary.”  The IAALS Post-Conference Final Report quoted Clear The Bench Colorado Director Matt Arnold on that topic:

Clear the Bench Colorado Director Matt Arnold echoed this sentiment: “Providing substantive information is not only important for the judges…It is absolutely critical to cementing respect for the process and respect for the rule of law.”

 Recommendations forImproving Appellate Performance Evaluation

A strong majority conference participants agreed that review of written opinions is an essential component of the evaluation process:

As the principle work product of appellate judges, and the primary—if not only—way in which appellate judges communicate the legitimacy of their decisions, conference participants were unanimous in expressing a need for some sort of opinion review, based upon appropriate criteria, as part of the JPE process. (IAALS Post-Conference Final Report)

Despite the widespread concurrence on the need to consider written opinions of appellate judges as the principal source for evaluations, few conference participants had concrete ideas on how to go about evaluating appellate opinions and presenting the results in a format useful to the public – the voters who have the final word.

(The exception, of course, was Clear The Bench Colorado‘s “Evaluating Appellate Judges“)

The conference’s final report, typically, punted:

“No clear direction emerged from the conference as to the approaches that should be taken in evaluating appellate opinions. Accordingly, IAALS established a task force to study this issue in detail and formulate recommendations for states interested in changing an existing, or incorporating a new, system for appellate opinion review as part of the judicial performance evaluation process.”

Several months (almost a year) later, the “task force” issued its report: AN OPINION ON OPINIONS: Report of the IAALS Task Force on Appellate Opinion Review

Unfortunately, the “task force” recommendations simply perpetuated the current model of failing to provide relevant, substantive evaluations of judicial performance against a standard of constitutionality.  Similar to Colorado’s current model of non-evaluative “evaluations” the report’s recommended training virtually guarantees a whitewash providing little or no information useful in distinguishing “good” judicial performance from bad:

Training for Opinion Reviewers:
Coordinators of performance evaluation programs should provide adequate training to opinion evaluators, to ensure consistency both in conducting the evaluation and in understanding the purpose of the evaluation—i.e., to assess the quality and clarity of the opinion rather than to revisit the particular outcome(s) reached.  (“Opinion on Opinions”, p.3)

Another year after that (two years after the conference), the IAALS “task force” issued an update:
AN INFORMED OPINION: Direct Opinion Review and Appellate JPE

Unfortunately, the updated IAALS report just parroted the legal establishment line about “official” JPE (Judicial Performance Evaluations) providing “substantive” information of any value to voters.

Moreover, the incestuous relationship of IAALS with the state’s “official” (taxpayer-funded) judicial “review” organization, the Colorado Office of Judicial Performance Evaluation (COJPE) (COJPE’s executive director at that time, Jane Howell, was one of five members of the “task force” appointed to generate recommendations) undermines the credibility of the “task force” report (which, unsurprisingly, endorses an expanded but otherwise fundamentally unchanged status quo).

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.

District Court Judge upholds flawed election in West Metro Fire Protection District ballot secrecy case

Colorado District Court Judge Stephen M. Munsinger (Chief Judge, 1st Judicial District including Jefferson and Gilpin counties; most recently retained in office in 2010) upheld the results of a flawed election for the West Metro Fire Protection District in a ruling issued today (24 July 2014), despite evidence showing conclusively that the secrecy of ballots cast by electors was breached on multiple occasions.

The lawsuit and election challenge, filed by the Colorado Union of Taxpayers (CUT) on June 2nd, alleged that the West Metro elections systemically violated the right to a secret ballot (guaranteed in Article VII, Section 8 of the Colorado Constitution) theoretically enjoyed by Colorado voters.

Evidence presented at trial and in multiple filings before the court substantiated the key elements of the plaintiff allegations:

  • voted ballots were viewed simultaneously with voter identifying information
  • simultaneous visibility of votes and voter information was systemic, not accidental
  • voted ballots were systemically additionally marked with voter identifying data
  • lack of ballot secrecy was publicly known, potentially dissuading voter participation

Plaintiffs thus advanced the claim that the election was therefore invalid and moved to void the results:

The District planned and utilized a ballot processing procedure that did not protect the right to a secret ballot. The case law in Colorado is clear that because the Election violated the right to a secret ballot, the proper remedy is for the Court to void the election results ab initio. (Plaintiffs Closing Argument at 4)

The claim was further bolstered by expert testimony from Deputy Secretary of State Suzanne Staiert:

Based on her review of the information, Ms. Staiert opined that because the judges were trained in a certain way that a systemic violation of the secret ballot did occur because “every single ballot had a privacy violation as it was separated.” (Staiert Trial Testimony, 7/9/14). [Emphasis added]

Additionally, the District’s marking of ballots identifying votes/voters was noted as a particularly egregious and clear violation of election rules and constitutional language guaranteeing ballot secrecy:

Ms. Staiert testified that in her experience she has never encountered the use of sticky notes as used by the District in the Election to identify voters’ ballots and considered it a bad practice. She further testified that the District’s purpose and use of sticky notes in the Election “are inconsistent with our rules, they are inconsistent with the Constitution; it is a marking on the ballot that identifies the voter.” (Staiert Trial Testimony, 7/9/14).

Nonetheless, despite documentation and testimony by multiple witnesses substantiating breaches of ballot secrecy, Judge Munsinger upheld the election on the pretext that only “affirmative discovery” of electors’ votes could count as a constitutional violation:

To show a constitutional violation of this provision, Plaintiffs must show that election judges, in fact, affirmatively discovered electors’ votes. Jones v. Samora, 318 P.3d 462 (Colo. 2014). Voiding an entire election, ab initio, is appropriate only where it can be shown that the entire election was conducted without secret ballots. Id., at 471 (citing Taylor v. Pile, 391 P.2d 670 (Colo. 1964)). Finding that an entire election was conducted without secret ballots requires a showing that the ballots were not secret at the time electors voted, or that electors were intimidated or were otherwise not free to vote as they wished. Id. (Judgment at 3)

The problem with Judge Munsinger’s apparent invention of an “affirmative discovery” standard is that, absent voluntary confession of wrongdoing (or, presumably, waterboarding) it is impossible to prove.  Essentially, adopting such a standard for ballot secrecy effectively nullifies applicable election rules, statute, and constitutional language guaranteeing every voter the right to cast a secret ballot.

Quo Vadis?

Given that Judge Munsinger’s ruling appears to be in conflict not only with the evidence and testimony presented, but also with relevant case law precedent, it is likely that the case will be appealed to the next higher court.

It may still be some time before the final results of the West Metro election are known (or, indeed, actually final).

Read more about the West Metro Ballot Secrecy case:

Federal Judge Stretches Facts, Law to Find Colorado Gun Ban Legislation Constitutional

Federal Judge Marcia S. Krieger (Chief Judge, 10th Circuit District Court) seems to have stretched both facts and law in ruling against the individual rights of Colorado citizens and in favor of government restrictions and control in finding the 2013 Colorado “gun ban” legislation constitutional.

Judge Krieger’s 50-page ruling selectively omits relevant facts and applies a strained interpretation of “significant” or “substantial” infringements of rights as well as what constitutes “substantially related to an important government objective” in upholding the legislation.

The opinion’s prefatory background noted,

A number of claims were dismissed prior to trial. The issues at trial were: (1) whether § 18-12-302 and § 18-12-112 violate the Second Amendment of the United States Constitution, which guarantees the people’s right to “keep and bear arms;” (2) whether the phrase “continuous possession” in the grandfather clause of § 18-12-302 is so vague as to violate the people’s right to Due Process under the Fourteenth Amendment of the United States Constitution; and (3) whether the statutes violate Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132.

Krieger found that none of the issues met or surpassed the threshold of unconstitutionality.

 I. Standing to Sue the State in Challenging Constitutionality

The Colorado Attorney General (John Suthers) on behalf of the named defendant (Colorado’s Governor John Hickenlooper) and the State of Colorado challenged the right of the plaintiffs to sue the state (“standing”) to overturn the legislation at all.  Standing is an important issue in law:

To have standing, a plaintiff must show that he, she, or it has been or is being injured, that the challenged law causes the injury, and that the lawsuit will provide relief for the injury. [Ruling at 7]

Normally, standing to sue arises only after an actual injury has been sustained, but a constitutional challenge to a law can be brought in advance

if it can be shown that: (1) the plaintiff genuinely intends to engage in a course of conduct that is constitutionally protected but is proscribed by the challenged statute, and (2) if the plaintiff engaged in such conduct, there exists “a credible threat” that the plaintiff would be prosecuted under the statute. [Ruling at 8]

Judge Krieger ruled that none of the individual plaintiffs (Colorado Sheriffs and other named individuals in the lawsuit) have standing to challenge either the magazine ban legislation (§ 18-12-302 C.R.S.) or the background checks on private sales legislation (§ 18-12-112) and that many (even most – but not all) of the businesses and organizations filing suit also lacked standing.  However, since at least one associative entity (Women for Concealed Carry) was held to have standing, the court did not dismiss the suit entirely and did address the claims on the merits.

II. Analytical Framework for 2nd Amendment Challenges

Judge Krieger asserts that

Until 2008, most courts did not construe the Second Amendment to protect an individual’s right to possess and use firearms. Courts were guided by the Supreme Court’s decision in United States v. Miller, 307 U.S. 174, 179 (1939), which held that a right protected by the Second Amendment required “some reasonable relationship to the preservation or efficiency of a well regulated militia.” [Ruling at 20]

Although admitting that the previous collectivist interpretation of the 2nd Amendment was superseded by the 2008 Heller case, Judge Krieger clearly and expressly retained sympathy for the view that government restrictions of the individual “right to keep and bear arms” are presupposed to be valid and constitutional unless explicitly excepted – turning the notion of “rights” on its head.

Judge Krieger applied a “two-step approach” in determining the legislation’s constitutionality:

  1. Does the legislation “burden a right or conduct protected by the Second Amendment?”
  2. If it does burden a right or conduct, how much?

More specifically,

As part of this determination, the Court may consider whether the challenged law impacts firearms or firearm use, whether the affected firearms are currently in “common use,” whether the affected firearms are used for self-defense inside or outside of the home, and whether the restriction is akin to restrictions that were historically imposed and customarily accepted. [Ruling at 22]


If the challenged law burdens conduct protected by the Second Amendment, then a court must determine what level of constitutional scrutiny to apply. [Ruling at 22]

The “levels of constitutional scrutiny” are a legal construct that, essentially, allows a court to decide just how important your rights are versus a government claim of a “need” to impose legislation or policy mandates on the populace. Basically, the construct allows the courts to determine that “some rights are more equal than others” – and, essentially, that some “rights” must give way to government power.

The three levels generally recognized (with some variations in-between) are

  • “Rational Basis” – basically, if the government can come up with some reason for the legislation, your rights are forfeit
  • “Intermediate Scrutiny” – “which applies to laws that infringe upon, but do not substantially burden, fundamental individual rights” [Ruling at 23]
  • “Strict Scrutiny” – applying to laws “that substantially burden fundamental individual rights”

Note that the courts get to determine what the definition of “substantially burden” is on a case-by-case basis, per the whim of the judge.

III. Applying the Constitutionality Test to the Magazine-Ban Bill

Although Judge Krieger grants as to the fact that the Mag-Ban Bill “burdens the right of individuals to possess commonly-used weapons, such as handguns, for self-defense” [Ruling at 26], she spends a half-dozen pages tortuously arguing that the legislation does not impose a “severe” burden on that right, in order to justify applying the “intermediate scrutiny” test.  At that point, it’s a foregone conclusion.

For § 18-12-302 to survive intermediate scrutiny, Colorado must prove that its objective in enacting § 18-12-302 was “important” — that is, that that the statute was based on “reasoned analysis,” Concrete Works of Colo., Inc. v. City and Cnty. of Denver, 321 F.3d 950, 959 (10th Cir. 2003) — and that the provisions of § 18-12-302 are “substantially related” to its stated objective. [Ruling at 32]

The judge spent the next four pages arguing that

the evidence establishes both an important governmental policy and a substantial relationship between that policy and the restriction of § 18-12-302 [Ruling at 36]

in order to find the legislation constitutional.

 IV. Applying the Constitutionality Test to the “Background Checks on Private Sales” Bill

Similarly, Judge Krieger grudging concedes that” the right to “keep and bear” firearms implies some protection of the right to acquire firearms in the first place” before contending that “the burden imposed on the right is no more severe than the law already provides with regard to firearm sales” in commercial transactions. [Ruling at 37]

This contention flies in the face of the facts and evidence presented at trial and in documents filed with the court.

Despite the evidence that obtaining background checks for private sales and transfers – particularly outside of municipalities with multiple firearms dealers able to process the background checks – does impose a substantial burden, the judge found “that § 18-12-112 does not severely impact the Second Amendment right” to obtain arms, in order to (once again) apply the “intermediate scrutiny” standard. Again, the conclusion is foregone:

Accordingly, the Court concludes that § 18-12-112 is constitutionally permissible under the Second Amendment. [Ruling at 41]

 V. Vagueness Challenge

The “continuous possession” clause of the prior ownership exception in the Mag-Ban Bill (HB13-1224) was also challenged as being unconstitutionally vague, and subject to uneven, arbitrary enforcement “based on the personal predilections of individual law enforcement officers or jurisdictions” (which is an additional violation of the due process clause under the 14th Amendment).

Judge Krieger argues that although “it is possible that the “continuous possession” requirement may not be clear in every application” that such lack of clarity is not enough to “render the statute unconstitutionally vague.” [Ruling at 43,44]

She then cites as an example that “an owner who loaned out his or her magazine to another after July 1, 2013 would clearly not have maintained “possession” of it” – even though that directly contradicts the “technical guidance” on the “continuous possession” language promulgated by the governor and attorney general to “clarify” the legislation.

Ironically, Judge Krieger later relies on the existence of said “technical guidance” as a factor in “evaluating a facial challenge to a Colorado law” stating that a federal court must

“consider any limiting construction that a Colorado court or enforcement agency has proffered.” [Ruling at 45]

Notwithstanding Judge Krieger’s self-contradictory citation of facts and evidence, she holds that since

the Plaintiffs have failed to sustain their burden of establishing that § 18-12-302(2)(a) is unconstitutionally vague in all applications, the Court finds the statute permissible under the Fourteenth Amendment to the United States Constitution.  [Ruling at 46] (emphasis added)

Finally, Judge Krieger ruled that the claims of violating the Americans with Disabilities Act (ADA) were not substantiated because the legislation did not restrict “a government service, program, or activity” nor did the evidence prove a “disparate impact” to statistically significant numbers of people.

Thus, the court found in favor of Defendant John Hickenlooper and the state of Colorado on all counts, and held the legislation to be “compliant with the provisions of the Second and Fourteenth Amendments to the United States Constitution.”  [Ruling at 50]



The 2013 Colorado legislation – both HB13-1224, banning certain “ammunition feeding devices” and HB13-1229, controlling private sales or transfers of firearms – clearly “infringes” upon individual rights secured and protected under the 2nd and 14th Amendments to the United States Constitution.  In addition, both pieces of legislation are practically unenforceable, constitutionally vague, and lend themselves to uneven, arbitrary enforcement “based on the personal predilections of individual law enforcement officers or jurisdictions” (an additional violation of the due process clause under the 14th Amendment).  Any court with fealty to the rule of law (or constitutional precedent) would have found them to be in violation of the Constitution (2nd and 14th Amendments).  Unfortunately, Krieger’s ruling appears to have more fealty to the rule of government and public passions than to the rule of law and individual rights.

The Colorado Sheriffs and other plaintiffs have already signaled their intent to appeal Krieger’s ruling to the 10th Circuit Court of Appeals and “if necessary all the way to the Supreme Court” of the United States.

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.

Read Judge Marcia Krieger’s 50-page Ruling here:

Read more about the Colorado gun case in these articles:


Colorado Republican Party files suit to form “party-sponsored” Independent Expenditure Committee despite legal ban

Despite failing earlier this year in an attempt  to get the Colorado Secretary of State to sanction a “party-sponsored”  Independent Expenditure Committee allowing the Colorado Republican Party to evade contribution limits (source and amount) applying to political parties, party chair Ryan Call has apparently decided to gamble the state party’s fortunes in the courts.  Despite lacking any assurance or binding opinion that forming a “party-sponsored” IEC is legal (in fact, the Secretary of State’s advisory opinion explicitly cautioned that even “a declaratory order would not prevent a person or organization from filing a campaign finance complaint against Petitioner”), Call rolled the dice by filing the IEC on Wednesday and immediately filing suit on Thursday in Denver District Court.

Interestingly enough, although the supposedly “independent” committee – filed as the Colorado Republican Party Independent Expenditure Committee – lists a physical address in Colorado (at state party headquarters), the registered agent for the committee, Harden Global, is located in Alexandria, VA (a Washington DC suburb).

Aside from the interesting twist in having the registered agent for the Colorado Republican Party Independent Expenditure Committee located across the country (a DC-area paid political consultant), the party’s lawsuit advances basically the same arguments that failed to convince the Colorado Secretary of State to issue a Declaratory Order several months ago.  Specifically, the party’s attorney continues to conflate the issue of party independent expenditures (for which there is legal precedent and constitutional protection) and the ability of the party to “sponsor, maintain, and operate an IEC” not subject to the contribution limits applying to political parties (for which there is neither precedent nor constitutional protection – indeed, the Colorado Constitution explicitly states the opposite).

Background and Constitutional/Statutory Framework

Following the passage of Amendment 27 in 2002 (enacted as Article XXVIII, Colorado Constitution), contribution limits have applied to organizations supporting or opposing candidates in state elections –including political parties.  Under current Colorado law, political parties may accept a maximum of $3,400 per year (state, county, local levels combined) in aggregate (total) contributions from any individual – and are prohibited from receiving contributions from corporations or labor organizations (unions).

Independent Expenditure Committees (IECs), a more recent statutory (vs. constitutional) creation, on the other hand, are not subject to contribution limits, and may support or oppose candidates, but only so long as the support and spending are” truly independent and not coordinated with the candidate.”  (cf OGREexposed.org analysis, Colorado GOP seeks approval for new independent expenditure committee)

Colorado Republican Party Lawsuit

Colorado Republican Party State Chair Ryan Call, represented by his law firm partner (and designated party attorney) Richard Westfall, filed a lawsuit seeking the Court’s advance blessing (via a Declaratory Order) for an entity combining the features of an “independent expenditure committee” (no contribution limits to amount and/or source) that would simultaneously be “sponsored, maintained, and operated” by the party and wearing the Republican party label  –
in many respects, seeking to “have their cake and eat it, too.”

The COGOP advanced the following main arguments in support of their lawsuit:

  • Supreme Court precedent affirming the right of political parties to make independent expenditures
  • Colorado’s constitutional/statutory framework is consistent with Supreme Court precedent
    • “Independent expenditures” are allowed so long as there is no coordination
    • “Any person” may make independent expenditures
    • “Political parties” are defined as a “person” under campaign finance law
    • “Independent Expenditure Committees” are not subject to contribution limits or source prohibitions

Additionally, the petition asserted that “the Republican party’s Independent Expenditure Committee will be structured and operated to ensure that no expenditures will be coordinated with candidates.”

Analysis of COGOP’s Arguments:

The COGOP lawsuit spends an inordinate amount of space asserting the right of political parties to make independent expenditures – a fact that is not in dispute.  The party is already able to make independent expenditures without necessarily having to form a separate committee (arguably, this is a default function of party organizations anyway).  The dispute arises from conflating the ability to make independent expenditures with the ability to receive contributions without limit to amount or source that is a special feature of IECs under Colorado law.

As noted in previously published analyses, the right for a political party to make unlimited independent expenditures is distinct from the legal ability of the party to raise funds not subject to contribution limits – which, like it or not, Colorado has imposed on political parties.

Additionally, the COGOP chair’s assertion of “significant structural and operational protections” preventing coordination is risible, as is the very notion that an entity owing its existence to the state party, with the director and management committee appointed personally by the state party chair, would be “independent” in any sense of the word.  Such an entity is almost by definition “pre-coordinated” – although it would not be constrained by party bylaws (bylaws theoretically restricting, for example, the IEC’s ability to spend or promise spending in order to influence primary elections).

Likewise, reliance on the party qualifying as a “person” under constitutional and statutory language, and thus eligible to form an IEC, also leads to an absurd result; since, following that logic, a candidate for office (subject to contribution limits) is likewise a “person” and would also be able to form an IEC as a “candidate-sponsored” entity (with similar “safeguards” against coordination, wink wink nudge nudge).

Indeed, the issue of “coordination” is central to the legality of the proposed “party-sponsored” IEC:

Petitioner must ensure the absence of “coordination” to avoid the potential for corruption or the appearance of corruption. (SOS Ruling at 9)

The Secretary’s advisory opinion closed in classically understated language:

The fact that the party exercises control over the appointment – and presumably removal – of the IEC’s executive director and management committee is potentially problematic.

Clear The Bench Colorado generally opposes the imposition of contribution limits or other restrictions on free speech in the civic and political arena (see, Speaking Out on Reforming Colorado’s Campaign Finance Laws) as unconstitutional abridgments of the 1st Amendment; in particular, the excessively complex and convoluted nature of campaign finance laws in Colorado challenge the Constitution, chill free speech, and curtail civic participation.  Any such laws that do remain in effect, however, must be fairly and equitably applied to everyone – with no “special exemptions” for favored entities.  It is our view that the COGOP Chair’s lawsuit is an attempt to create just such a “special exemption” and should be denied.

Read more about the COGOP Chair’s attempt to skirt Colorado Campaign Finance Law

Colorado Ballot Initiatives to “Clean Up The Courts?”

Colorado courts have been touted by the usual cheerleaders – the Colorado Bar Association (CBA), the Denver-based Institute for the Advancement of the American Legal System (IAALS), and of course in the Colorado Supreme Court Chief Justice’s “State of the Judiciary” speeches before the state legislature – as a shining example of juridical excellence and an “ideal” Colorado judiciary.

The truth – the actual “state of the Colorado judiciary” – falls a bit short of these lofty pronouncements.

In fact, some national organizations have gone so far as to label Colorado a “judicial hellhole.”


Although the Colorado judiciary has certainly seen some improvement since “achieving” the “judicial hellhole” status in 2010/2011 (most notably, the departure of former Chief Justice Mary Mullarkey, who quit the bench in 2010 rather than face the votersJustice Alex Martinez, who left after receiving the lowest retention vote approval for any incumbent supreme court justice in state history, and most recently Chief Justice Michael Bender, who left upon reaching mandatory retirement age), our court system has retained several systemic deficiencies (starting with a lack of transparency in the so-called “merit selection” process for nominating and appointing judges, through the completely rubber-stamp nature of the “official” judicial performance “review” process, and the notoriously toothless “judicial discipline commission” responsible for sanctioning judicial misconduct).

A pair of ballot initiatives are seeking to address the last two of these systemic deficiencies on the November 2014 ballot.

The most recently filed and approved initiative (based on clearing the title board), listed as Proposed Initiative #94 and called by the initiative proponent the “Honest Judge Amendment“, seeks to transfer oversight and responsibility for investigating and sanctioning judicial misconduct from the current “Judicial Discipline Commission” – which operates under guidelines set by the Colorado Supreme Court, a classic “foxes watching the henhouse” situation – to an Independent Ethics Commission (which would at least have the benefit of not being “of the lawyers & judges, for the lawyers & judges”).

The initiative proponent, an issue committee named “Clean Up The Courts“, lists the following arguments in favor of the initiative:

Why this amendment is needed:

  • The constitution currently states judges may be disciplined for any violation of the Code of Judicial Conduct.
  • But the Supreme Court currently issues judicial discipline rules.
  • There is a conflict of interest in judges issuing rules about judicial discipline.
  • The Supreme Court acted on that conflict and issued an unconstitutional rule that means judges cannot be disciplined for anything that can be appealed.
  • The rule eliminated the “any violation” standard in the constitution.
  • Over the last 10 years, 89.5% of complaints against judges have been dismissed due to the rule.
  • There has not been a published case of judicial discipline since 1986.
  • You are not protected by the Code of Judicial Conduct when judges issue rulings.
  • The Supreme Court is completely above the law.
  • The only way out of this unlawful and unethical situation is to amend the constitution so there is no longer a conflict of interest in judicial discipline.

How this amendment solves the problem:

  • The constitutional “any violation” standard is revived.
  • Discipline is transferred to the Independent Ethics Commission, so there is no longer a conflict of interest in judicial discipline.
  • The constitution is amended to specifically state that if a judge violates the Code of Judicial Conduct in an appealable order, the judge can be disciplined.
  • If there is a finding of probable cause, discipline proceedings are public.
  • Judges do a better job because they know they will be held accountable.
  • You are protected from judicial misconduct.
  • You can have more confidence in judges.

In numeric order, the first of these initiatives, Proposed Initiative #79, seeks to increase the threshold of votes required for a judge to stay in office in Colorado’s uncontested judicial retention elections from the current simple majority (50% +1 of total votes cast, including undervotes) to a two-thirds majority:

Shall there be an amendment to the Colorado constitution increasing the number of “Yes” votes required for a justice or judge to be retained in office from a simple majority to a two-thirds majority in the November 4, 2014, general election, and in every election thereafter?

The initiative proponent, an issue committee named “Clean Up The Courts“, lists the following arguments in favor of the initiative:

Why this amendment is needed:

  • The unethical situation related above has gone unnoticed for almost 30 years because people don’t pay enough attention to judicial retention elections.
  • Judges run in uncontested retention elections.
  • Judges currently only have to get a majority vote even though there is no opposition.
  • Judges easily get retained due to a lack of information.
  • Judges easily get retained due to voter apathy.
  • A majority vote is what is used when we want a politician to be partial or biased.
  • A majority vote is what is used if we want a certain policy adopted.
  • We want judges to be the exact opposite of partial or biased.
  • We want judges to be fair and impartial.
  • So a different measurement should be used.

How this amendment solves the problem:

  • Requiring a two-thirds majority vote brings greater scrutiny to judges.
  • A flawed process is corrected without turning to contested political elections.
  • Judges approved by two-thirds of voters are more likely to be fair and impartial.
  • You will have more confidence in judges approved by a two-thirds majority.
  • You have the right to expect quality judges who receive a two-thirds majority vote.
  • Judges will be more accountable and more likely to follow the rule of law.
  • Judges will respect you and the law.
  • You deserve to have this much confidence in the judiciary.

It’s noteworthy that the opposition to these initiatives through the title-setting process has come from the Colorado Bar Association, previously engaged in unethical actions opposing judicial reform and accountability efforts through illegal funding of campaigns supporting incumbent judges in the 2010 election cycle.  The CBA hired attorney Marc Grueskin, also active behind the scenes in opposing judicial accountability efforts, to challenge the initiatives before the title board (unsuccessfully, as it turns out).

As noted in a press release from the Clean Up The Courts organization, hiring Grueskin’s firm to oppose the initiatives is itself of dubious ethicality – since the law firm “is managed by a current member of the State Commission on Judicial Performance” – Heather Hanneman.

“The conflict of interest in Heather Hanneman’s actions is glaring,” said Chris Forsyth, an attorney who has practiced for 20 years and who is a proponent of the initiatives.

Hanneman is on the state performance commission which is charged with evaluating the performance of statewide judges and recommending to the public whether the judges should be retained. The judges at issue include Court of Appeals judges and Supreme Court justices.

“All appearances are that Hanneman’s firm is assisting those judges with covering up judicial misconduct and keeping the truth from the public. The public has the right to expect her to disclose judicial misconduct; not cover it up,” Forsyth said.

The Colorado Bar Association’s opposition to the initiatives highlights the far-too-cozy relationship of the bar association with the judiciary, and indicates a potentially corrupt relationship among the legal establishment that is not apparent to the average voter – and, perhaps, underscores the need for precisely the types of reform sought by these initiatives and other efforts.

The initiatives, irrespective of merit, face an uphill climb before even being placed before the voters; under the Laws governing the initiative process in Colorado, 86105 valid signatures are needed to qualify for the ballot, which is a significant (although not insurmountable) number for a grassroots initiative lacking major special-interest funding.  (At this time, the  “Clean Up The Courts” organization is relying on volunteer petition circulators – solicited on the organization’s “Pitch In!” page)

The “Clean Up The Courts” organization is not affiliated with Clear The Bench Colorado; however,

 Our View: Citizen participation is vital in restoring Accountability and Transparency to Colorado Courts

“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

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 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.