Commentary
Considering the Constitutionality of recently-enacted Colorado “gun laws” – and the legal challenge led by Colorado Sheriffs
Colorado has become the national epicenter of the debate on ‘gun rights’ (the right of the people to “keep and bear arms“) on political, policy, AND constitutional grounds.
On the political front, Colorado has vaulted onto the national stage with the historic efforts to force a ‘recall’ vote against a number of state senators who were instrumental in passing legislation to restrict, infringe, or “call into question” the rights of Colorado citizens to “own, use, manufacture, sell, or transfer” firearms (and essential components – i.e. standard-capacity magazines). As of this writing, sufficient signatures have been submitted to force recall elections for two incumbent state senators (Senate President John Morse, and state senator Angie Giron) with other state legislators remaining on the target list.
As a policy issue, the debate centers around whether any of the recently-enacted legislation would in fact have any impact whatsoever on promoting public safety – with the consensus view that, since the legislation fails to target criminal behavior or activity, the answer is a resounding negative.
However, the aspect with the most potentially far-reaching implications – for Colorado and the nation at large – revolves around the constitutional questions on gun rights issues raised by the legal challenge raised by 55 of Colorado’s 62 elected Sheriffs challenging the permissibility of the most prominent pair of the state’s recently-enacted pieces of legislation concerning firearms under the U.S. Constitution.
The Colorado Sheriffs’ Lawsuit – filed in the United States District Court for the State of Colorado (i.e. federal, not state, court) challenges the constitutionality of HB13-1224 “Concerning Prohibiting Large-Capacity Ammunition Magazines” and HB13-1229 “Background Checks for Gun Transfers” as violations of the 2nd and 14th Amendments to the United States Constitution.
The following summarizes the Complaint and relevant constitutional issues.
Guiding constitutional/legal principles (as summarized in the Sheriffs’ Complaint)
The Supreme Court’s Landmark Decisions: Heller and McDonald
27. There are certain indisputable legal principles announced by the United States Supreme Court against which HB 1224 and HB 1229 must be judged.
28. Under Heller, the Second Amendment to the United States Constitution guarantees the right of individual citizens to keep and bear commonly-used firearms for all lawful purposes.
29. The individual right to employ commonly-used firearms for self-defense is “the central component” of the Second Amendment guarantee.
30. An individual’s Second Amendment rights, including the right to self-defense, are fundamental rights.
31. Under McDonald, the rights protected by the Second Amendment apply equally to the states, including Colorado, through the Fourteenth Amendment to the United States Constitution.
HB13-1224: What it Does
As succinctly summarized in the Sheriffs’ legal complaint:
House Bill 13-1224 (“HB 1224”) bans outright all ammunition magazines sold or acquired after July 1, 2013 that hold more than 15 rounds of ammunition. HB 1224 also bans most other magazines of any size because it prohibits smaller magazines that are “designed to be readily converted” to hold more than 15 rounds of ammunition. …
Thus, the magazine ban amounts to a ban on having a functional, operating unit for most handguns and a very large fraction of rifles…
What the Constitution Says
Amendment II, United States Constitution, states:
“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.“
The collectivist interpretation of the Second Amendment, holding that the right of the people to keep and bear arms is contingent on membership in a militia, was decisively repudiated in the 2008 Heller case, which unequivocably held it to be a fundamental, individual right:
“the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.“
Further (as articulated in the Sheriffs’ Complaint):
In Heller, the Supreme Court adopted a rule enforcing the Second Amendment that prohibited the banning of arms “typically possessed by law-abiding citizens for lawful purposes.”
Additionally, the issue of whether ammunition is included in the definition of “arms” protected by the 2nd Amendment is also settled law; as noted in the 1939 United States v. Miller case,
“The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former.”
Can a ban on standard-capacity “ammunition feeding devices” meet constitutional standards?
Short answer: No. Since the right of the people to keep and bear arms is a fundamental, individual right; the definition of “arms” protected under the 2nd Amendment include those in “common use” and “typically possessed by law-abiding citizens for lawful purposes;” and the definition of “arms” includes ammunition, “ammunition-feeding devices” meeting those criteria cannot be, constitutionally, banned (under the 2nd Amendment). As summarized in the Complaint:
Magazines of 16-20 rounds for handguns, and 16-30 rounds for rifles, easily satisfy the “common use” and “typically possessed” standards in Heller. Under Heller, their prohibition is thus per se unconstitutional. (Sheriffs Complaint at 176)
HB13-1229: What it Does
As succinctly summarized in the Sheriffs’ legal complaint:
House Bill 13-1229 (“HB 1229”) requires “universal” background checks before any sale or transfer of a firearm can occur, with some exceptions. HB 1229, even considering the exceptions, prohibits a wide range of common, temporary, or permanent transfers or loans of firearms between law-abiding citizens in violation of the Second Amendment. (Complaint at 20)
The bill requires that when one individual sells or loans a firearm to another, that “transfer” must be conducted through a Federal Firearms Licensee (“FFL,” a licensed gun dealer). The FFL is required to process the transfer as if he or she is selling a firearm out of his or her own inventory. (Complaint at 21)
What the Constitution Says
The 2008 Heller case sustained the constitutionality of background checks only as specifically applied to commercial sales; however, HB 1229 requires background checks prior to many temporary and non-commercial transfers of firearms between private individuals.
Can a de-facto prohibition on private sales or transfers of firearms meet constitutional standards?
Since the mechanism for performing background checks on private transfers requires the participation of a third-party entity (a Federal Firearms Licensee, or FFL) but cannot compel participation of any licensee nor force assumption of legal liability for such participation, HB13-1229 effectively prohibits otherwise legal private transfers. As summarized in the complaint (Sheriffs Complaint at 251)
In practice, therefore, HB 1229 amounts to a prohibition, rather than a regulation, of the covered sales and temporary transfers. As such, it is a violation of the Second Amendment right to bear arms, which includes the right to sell or temporarily transfer such arms.
Conclusion:
The recently-enacted Colorado legislation – 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) will strike both.
It is likely that, given the intensity of the ongoing political and policy debate, the case will be appealed, no matter the outcome – potentially all the way to the Supreme Court of the United States. If so, this case could profoundly alter the legal precedents on gun rights nationwide, and 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.
Colorado Supreme Court overturns Lobato school funding lawsuit (as predicted by Clear The Bench Colorado)
The Colorado Supreme Court overturned Denver District Judge Sheila Rappaport and upheld the constitutionality of Colorado’s school funding system, as predicted by Clear The Bench Colorado Director Matt Arnold in an article published earlier this weekend:
The Lobato lawsuit was originally filed in 2005; it was rejected at both the trial court level and in the Colorado Court of Appeals before narrowly (4-3) receiving new life in one of the Mullarkey Majority’s final (and most notorious) rulings in October 2009. The Mullarkey Majority overturned lower courts that had held (correctly) that school funding decisions are a matter of policy – not law – and are therefore the job of elected legislators – not appointed judges – to decide.
The 2009 Mullarkey Court ruling sent the case back to the trial court, and two years later (9 December 2011) Denver District Judge Sheila Rappaport issued a 183-page ruling finding for the plaintiffs – which was almost immediately appealed by the state (a bipartisan decision by Governor Hickenlooper and Attorney General Suthers) and joined in the appeal by the State Board of Education).
Although “reading the tea leaves” and predicting an outcome is always fraught with danger, it was clear from oral arguments in March that the justices who had participated in the 2009 Lobato ruling had not since shifted their opinion on the merits of the case.
However, what has changed in the interim (due in no small part to the efforts of Clear The Bench Colorado) is the composition of the state’s highest court – as two of the “unjust justices” who had previously voted to keep the Lobato lawsuit alive (Justice Alex Martinez and former Chief Justice Mary Mullarkey) have since resigned from the court (the former, after having received the lowest “retain” vote percentage of any incumbent Colorado Supreme Court justice in the state’s history – at 59% - and the latter quitting in advance of the retention vote rather than face the voters, in the face of a popular judicial accountability movement). Mullarkey’s replacement, Justice Monica Marquez, recused herself (appropriately) from this case, having taken part in earlier decisions while representing the state as an assistant attorney general, leaving the balance of power in deciding the case to recently appointed Justice Brian Boatright. Note that both Justice Boatright and Justice Marquez are subject to a retention vote in 2014.
Clear The Bench Colorado’s previously published prediction on Tuesday’s pending ruling:
Given that the justices who voted on the previous appearance of the Lobato case before the Colorado Supreme Court are unlikely to change their positions, the weight of the decision falls firmly on the shoulders of recently appointed Justice Brian Boatright – who will be facing the voters in the 2014 retention elections. Given the weighty constitutional issues at stake, and the potentially “devastating consequences” for the state (as well as confidence in the state’s judicial system), it is our view that Justice Boatright will do the right thing and join the previous dissenting minority in forming a new majority to overturn Judge Sheila Rappaport’s blatantly biased and political ruling.
My bet: 4-2 to overturn, upholding the Constitution.
Colorado Supreme Court to issue ruling on Lobato lawsuit (called the “SuperBowl of school funding litigation”) Tuesday
The Colorado Supreme Court will issue a ruling in the resurrected ‘Lobato v. Colorado‘ school funding lawsuit (previously termed the Super Bowl of school funding litigation) this Tuesday, 28 May 2013 (the court heard oral arguments in the case in early March this year).
At issue: the constitutionality of Colorado’s system of statewide school funding.
At stake: some $4B additional school funding annually (requested by the plaintiffs), along with an additional $17B in spending on capital construction – and, perhaps even more importantly, a looming constitutional crisis regarding separation of powers and the proper role of the courts in setting taxation and educational policy.
Colorado Supreme Court Justices, from left, Nathan Coats, Gregory Hobbs, Michael Bender, Nancy Rice, Allison Eid and Brian Boatright hear school-funding arguments in the Lobato vs. Colorado case filed in 2005. Attorneys from both sides were subjected to pointed questioning from the bench. (RJ Sangosti, The Denver Post)
The Lobato lawsuit was originally filed in 2005; it was rejected at both the trial court level and in the Colorado Court of Appeals before narrowly (4-3) receiving new life in one of the Mullarkey Majority’s final (and most notorious) rulings in October 2009. The Mullarkey Majority overturned lower courts that had held (correctly) that school funding decisions are a matter of policy – not law – and are therefore the job of elected legislators – not appointed judges – to decide.
The 2009 Mullarkey Court ruling sent the case back to the trial court, and two years later (9 December 2011) Denver District Judge Sheila Rappaport issued a 183-page ruling finding for the plaintiffs – which was almost immediately appealed by the state (a bipartisan decision by Governor Hickenlooper and Attorney General Suthers) and joined in the appeal by the State Board of Education).
Although “reading the tea leaves” and predicting an outcome is always fraught with danger, it was clear from oral arguments in March that the justices who had participated in the 2009 Lobato ruling had not since shifted their opinion on the merits of the case.
However, what has changed in the interim (due in no small part to the efforts of Clear The Bench Colorado) is the composition of the state’s highest court – as two of the “unjust justices” who had previously voted to keep the Lobato lawsuit alive (Justice Alex Martinez and former Chief Justice Mary Mullarkey) have since resigned from the court (the former, after having received the lowest “retain” vote percentage of any incumbent Colorado Supreme Court justice in the state’s history – at 59% – and the latter quitting in advance of the retention vote rather than face the voters, in the face of a popular judicial accountability movement). Mullarkey’s replacement, Justice Monica Marquez, recused herself (appropriately) from this case, having taken part in earlier decisions while representing the state as an assistant attorney general, leaving the balance of power in deciding the case to recently appointed Justice Brian Boatright. Note that both Justice Boatright and Justice Marquez are subject to a retention vote in 2014.
At Stake?
As previously mentioned, not only are billions of dollars in additional school funding (estimated by plaintiffs at $4B, annually) at stake – which alone could have “devastating consequences” for the state, according to Governor Hickenlooper – it could precipitate a constitutional crisis. A court mandate to raise taxes or require more spending would intrude upon the legislature’s authority to set education policy and violate the constitutionally-defined separation of powers between the branches of state government (an issue raised in the dissenting opinion in the 2009 ruling, as Clear The Bench Colorado noted at the time:
The Colorado Constitution directs the General Assembly to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state,”placing discretionary education questions in Colorado squarely and solely within the legislative ambit. (Lobato v. State of Colorado, dissenting opinion. Emphasis added).
A court ruling in favor of the plaintiffs “could alter the relationship between the people of Colorado and their government for decades to come” – since
One of the plaintiffs’ main arguments is that the Taxpayer Bill of Rights (TABOR) must give way to the education clause so that taxes could be raised and revenues increased to meet the needs of the education clause without a vote of the people.
A ruling by the Colorado Supreme Court asserting primacy of the education clause over TABOR and imposing higher taxes or spending could - as noted by both the attorney general’s office and Governor Hickenlooper – plunge the state into a constitutional crisis:
“Let’s say that the Supreme Court agrees with the district court – if that’s the case, then we’ve got the Constitution versus the Supreme Court.”
Listen to audio of Governor Hickenlooper’s statement on the Lobato appeal
Clear The Bench Colorado‘s prediction on Tuesday’s pending ruling:
Given that the justices who voted on the previous appearance of the Lobato case before the Colorado Supreme Court are unlikely to change their positions, the weight of the decision falls firmly on the shoulders of recently appointed Justice Brian Boatright – who will be facing the voters in the 2014 retention elections. Given the weighty constitutional issues at stake, and the potentially “devastating consequences” for the state (as well as confidence in the state’s judicial system), it is our view that Justice Boatright will do the right thing and join the previous dissenting minority in forming a new majority to overturn Judge Sheila Rappaport’s blatantly biased and political ruling.
Our bet: 4-2 to overturn, upholding the Constitution.
Bottom Line:
This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (i.e., a policy issue not to be decided by the courts).
If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.
The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit has been a fiscal, legal, and political disaster for almost a decade.
Read more about the Lobato school funding case in these articles:
- “Double talk on Lobato case before the Colorado Supreme Court” (Denver Post commentary, 13 March 2013)
- “Colorado Supreme Court justices offer strong reactions in Lobato case” (Denver Post, 8 March 2013)
- “Lawyers make last Lobato case pitches” (EdNews Colorado, 7 March 2013)
- “Supreme Court to consider Lobato case“ (Alamosa News, 6 March 2013)
- “Judicial Overreach” (Pueblo Chieftain editorial, 14 December 2011)
- “Judge Sets Constitution Aside in School Finance Ruling” (Audio, Education Policy Center, 12 December 2011)
- “Victory for Lobato Plaintiffs” (Education News Colorado, 9 December 2011)
- “Lobato v. Colorado: Defense’s Opening Statements” (Denver Post, 14 August 2011)
- “Lobato v. Colorado: Plaintiffs’ Opening Statements” (Denver Post, 14 August 2011)
- “Lobato case primer” (Education News Colorado, 11 August 2011)
- “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
- “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)
- “Lobato education-funding budget-buster aided & abetted by Colorado Supreme Court” (8 August 2011)
The Attorney General’s office has also compiled a list of key pleadings and court decisions in the Lobato case.
Cases such as Lobato – particularly Rappaport’s biased ruling – highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government. Our courts have an important – even vital – role to play in our society and system of government. This is not it.
Colorado Car Tax (er, ‘FASTER’ vehicle registration “fee”) increase on trial this week
The Colorado Car Tax (er, “vehicle registration fee”) increase passed in 2009 (SB108, the so-called “FASTER” bill) is quite possibly THE most unpopular tax increase in Colorado history – made all the more repugnant by how it became law (exploiting a 2008 Colorado Supreme Court ruling which declared that “fees” don’t count as “taxes” to circumvent the constitutional requirement (under Colorado Constitution Article X, Section 20 – Taxpayer’s Bill of Rights, a.k.a. TABOR) to receive prior voter approval for any ‘policy change resulting in net revenue gain’ to the state).
After two years of legislative inaction failed to repeal or roll back the unconstitutional and unpopular tax increase, the ‘FASTER’ Colorado Car Tax was challenged in court as a violation of the Colorado state Constitution (specifically, Colorado Constitution Article X, Section 20 – Taxpayer’s Bill of Rights, TABOR).
That court challenge is on trial this week.
The court declined to grant Plaintiff’s Motion for Summary Judgment which was filed earlier this year, despite documenting the fact that the “”Colorado Bridge Enterprise” established under the FASTER legislation as a “TABOR-exempt business enterprise” (Ed. – see, “Life in the FASTER Lane – updates on the Colorado Car Tax“) fails to meet the constitutional standard to qualify for exemption from TABOR requirements.
Plaintiffs had the first shot at introducing and examining witnesses in the trial, which began Monday and continues into Wednesday (at least) this week.
Penn Pfiffner, in his capacity as Chairman of the TABOR Foundation and plaintiff, sent out an update to people on the TABOR Committee mailing list earlier today:
Five witnesses; two heroes.
Plaintiffs (us) get to go first. One central fiction to keep in mind is the scheme declares that as you drive over certain bridges on the highway system, you are paying tolls to do so; tolls which are collected through a “safety surcharge.” The first two witnesses were Ms. Chris Sammons and Willie Wharton who both explained that they had to register vehicles and therefore pay the bridge surcharge “fee,” although those specifically identified vehicles never cross a single bridge. They did you proud, providing testimony that was calm, convincing, certain, occasionally humorous, and very credible. To me, they are my newest heroes. Both took a day off, drove in from Grand County (think, from beyond the western border of Rocky Mountain National Park), leaving very early to get to Denver on time. Willie had to spend one of his vacation days to do so, and the trial managed to fall during the very busiest time of his professional year. Chris had to put aside the demands of her ranch and small businesses, and miss a school function for one of her two teenagers. These two deserve our special thanks.
Mr. Manley also called as witnesses the chief financial officer of the Colorado Department of Transportation (and “coincidentally” the chief financial officer of the Bridge Enterprise Fund) and the executive director of the Colorado Department of Transportation (and “coincidentally” of the Bridge Enterprise Fund). They had to answer his questions about how the supposedly separate entities operate and coordinate, and supply information about funding issues.
The final of the five witnesses did not conclude his testimony before business wrapped up yesterday, and that is where the trial was to continue from this morning. Paul Wingard was there to prove expert information about the values of the bridges. Any TABOR enterprise is limited to taxpayer subsidy of 10 percent of annual income. The calculated limit in this case is met only because most bridges were transferred from the Department of Transportation to the Bridge Enterprise at a value of zero. Mr. Wingard brings a rare combination of experience and talents to the discussion. He is a professional engineer who has consulted in that profession, is a licensed contractor who built bridges, served as a senior administrator for a road and bridge department of a county government in Florida, and has participated in arm’s-length transfers of tolled bridges and a highway. We found him through Reason Foundation’s Bob Poole. Paul submitted a report about the values of the Colorado bridges being transferred.
More on this important constitutional challenge as the situation develops.
Bottom Line:
Colorado taxpayers have been forced to pay literally $100 Million per year in additional ‘FASTER’ taxes (under the label of “fees”) while simultaneously becoming obligated for over $300 Million in debt – all without a vote of the people, as required under Colorado’s Constitution.
The lawsuit seeks to prevent “continued enforcement and maintenance of the bridge safety surcharge” (i.e. stop the illegal collection of a portion of the Colorado Car Tax) and require that “all “[r]evenue collected, kept, or spent illegally” be refunded” – as mandated under the Colorado Constitution.
Now THAT would be a welcome “tax refund” for all Coloradans.
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.
Colorado Justice Center a Monument to Imperial, Unaccountable Colorado Judiciary
Colorado Justice Center a Monument to Imperial, Unaccountable Colorado Judiciary was originally published (with minor edits for length) in the Colorado Statesman weekly as a guest commentary (appearing online Monday, 13 May 2013)
Last week’s Colorado Statesman was host to a pair of guest commentary articles extolling the virtues of the newly-opened Colorado Justice Center.
Admittedly, it is an impressive edifice – as U.S. Supreme Court Justice Sotomayor noted, with an “architectural grandeur” imposing a feeling of being “humbled before the majesty of the law.”
(Photo originally published in Denver Post media gallery)
The irony of such an imposing, monumental structure being named after former Colorado governor Ralph Carr – a “principled politician” with an attitude of humble service to the citizens of our state –
is striking.
Other media reported on the extravagant costs of the sumptuously-appointed $288M judicial edifice – with “$1,300 wood serving carts with silver trays sitting in Supreme Court Justice Michael Bender’s reception room” along with $5,000 desks, $4800 leather sofas, $2375 credenzas with “antique brass hardware” and a host of other “elegant” luxury appointments in the judges’ chambers.
So just where does all of this money to fund the massive new “judicial complex” came from?
Ultimately, of course, from your pockets – but the details are interesting.
Part of the funding (authorized during the 2008 legislative session under SB08-206 State Justice Center) came from an unprecedented expansion in use of “Certificates of Participation” (in the words of a state legislator, “debt pretending not to be debt”). In fact, the legislative language specifies that the debt is simply re-defined as “not-debt” by declaring
the obligations shall not be deemed or construed as creating an indebtedness of the state within the meaning of any provision of the state constitution or the laws of the state of Colorado concerning or limiting the creation of indebtedness by the state of Colorado and shall not constitute a multiple fiscal-year direct or indirect debt or other financial obligation of the state within the meaning of section 20 (4) of article X of the state constitution. [SB08-206, Section 2, (2) (b), page 5]
“Crazy on Court Fees”
However, by far the greatest proportion of funding for the new judicial complex comes in the form of increasing the cost of access to justice by Colorado citizens via substantial increases in court fees (including creation of an entirely new category – the “Justice Center Fund” fee).
Want to file a case in civil court, defend yourself against a claim, change your name, or request a civil protection order? It’ll cost you an extra $37 for the “Justice Center Fund” – per filing. Small claims court filings? An extra $11 for the “Justice Center Fund”, thank you.
That’s just in your local county court – which may be hundreds of miles away from the judicial complex. Need access to justice at the District Court level or higher? Be prepared to cough up even more in “fees” for the “Justice Center Fund” – most actions in District Court or the Court of Appeals now cost an additional $68 for the fund, some as much as another $136 or even $204 each, at any of the 22 District Courts across Colorado, still miles from the Colorado Judicial Complex.
Even “domestic relations” cases are now more expensive thanks to the new fees – legal separation, annulment, divorce will each cost another $26; child custody registration or child support order, another $15 fee. Death in the family? That’ll cost extra, too – another $15 fee for probate filings, estate fees, conservatorship, etc. Anywhere in the state – all of Colorado now enjoys the “privilege” of contributing to this marvelous new edifice.
Even an “insufficient funds” return check fee for court payments (already $40, which is double what any private entity is allowed to charge) gets another $10 fee tacked on for the ”Justice Center Fund” (truly, adding insult to injury).
Need to fight a case up to a higher court? Pretty much ANY actions at the Colorado Court of Appeals now costs an additional $68 fee for that ”Justice Center Fund.” Water Court? Same story – almost every activity listed incurs an additional $68 for the ”Justice Center Fund” (some activities, such as applying for Change of Water Right or Plan for Augmentation, cost double – $136).
Ironically, the ONLY court where you WON’T have to pay an extra “Justice Center Fund” fee to pursue justice? You guessed it – the Colorado Supreme Court, whose “home” is being financed by all of these “fees” in the first place.
(View the full list of Colorado Court Fees – featuring the ”Justice Center Fund” fee)
It’s been said that “if you’re not outraged, you’re not paying attention.” Constitutionally, “fees” are only supposed to be charged to offset the cost of providing or administering a voluntarily accessed good or service. Since most people paying the “fees” receive no direct benefit from the new “Justice Center” those “fees” are really more of a tax. Taxes, constitutionally, cannot be increased without a vote of the people. Perhaps that’s why the Colorado Supreme Court’s majority decision in the 2008 Barber v. Ritter “Fees aren’t really taxes” case – expanding the use of “fees” by government entities across the state as a means of evading constitutional protections against tax increases – carries the taint of self-interest.
Of course, the entity which reviews the constitutionality of the “fees” and “certificates of participation” used to finance the new judicial complex is that branch of government receiving the greatest benefit: the Colorado Supreme Court, at the pinnacle of the state judicial system, has the final word.
The Colorado Justice Center, far from being a tribute to transparency or honoring the memory of the man after whom it is named, stands as a monument to an imperial, unaccountable state judiciary.
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.
Colorado Supreme Court to hear 1st Amendment challenge to state’s campaign finance laws
The Colorado Supreme Court hears arguments tomorrow (Weds, 8 May 2013) in a 1st Amendment challenge to the state’s campaign finance laws (pursuant to a request to clarify the “scope & meaning” of Colorado campaign finance laws in an order issued by a Federal judge late last year). According to a statement issued last Fall by the Center for Competitive Politics,
Senior Judge John L. Kane of the United States Court for the District of Colorado asked the state Supreme Court to “provide clear guidance… as to the scope and meaning” of provisions that have been challenged under the First Amendment to the US Constitution.
The request for clarification to the Colorado Supreme Court was issued due to a lawsuit challenging the state’s campaign finance laws as an unconstitutional violation of free speech rights under the First Amendment. The case, Coalition for Secular Government v. Gessler, No. 12-cv-1708, was filed in Federal court earlier in 2012.
The legal challenge raises important questions about political free speech, as summarized in the article, “Colorado’s Opportunity to Protect First Amendment Rights” (earlier published as a guest commentary on the Clear The Bench Colorado judicial accountability organization’s website) and as listed below.
Questions certified by the Federal judge (asked of the Colorado Supreme Court for clarification) include:
- Does the Colorado Constitution treat money spent on a policy paper, including one that suggests how the reader should vote on a ballot initiative, as the equivalent of money spent on political ads?
- Does the state constitution entitle policy papers distributed over the internet to be treated in the same way as newspaper and magazine editorials for purposes of campaign finance law?
- In light of a federal decision declaring certain groups too small to be regulated by the state of Colorado, what is the monetary trigger for an issue committee under the state constitution? Is it the roughly-$1,000 mentioned in the federal opinion? The $3,500 contemplated by CSG? The $200 mentioned in the constitution itself? Or another number altogether?
Colorado’s campaign finance laws are frequently used by well-funded special-interest groups as a tool to suppress political speech by grassroots organizations – facilitated by the odd fact that enforcement of the law is NOT prosecuted by the state, but rather by the individual (or organization) filing the complaint (effectively, it takes lawyers, time, and money to hold violators accountable for breaking the law).
Attempts at reforming Colorado’s campaign finance laws are invariably met with resistance from special-interest groups, many of whom are not subject to the same reporting and disclosure requirements that they support imposing on others.
Fortunately, some have fought for the preservation of political free speech, and have won some hard-fought victories in court. 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 (the $200 trigger on reporting contributions) were held to unduly burden the rights of free association and free speech protected under the 1st Amendment, among our most cherished rights.
The Center for Competitive Politics statement sums it up nicely:
“For years, organizations in Colorado have been unsure how to comply with Colorado’s campaign finance rules, or have been subject to politically-motivated complaints for making minor errors,” CCP Legal Director Allen Dickerson said. “Some choose not to speak at all in the face of this situation. The Colorado Supreme Court now has the option of bringing a measure of predictability to some of the state constitution’s more difficult provisions.”
Our View:
Clarification of the confusing cloud of campaign finance laws in Colorado that challenge the Constitution, chill free speech, and curtail civic participation is not only welcome – it’s long overdue.
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.
Colorado Ethics Watch finally pays Clear The Bench Colorado for frivolous, groundless, and vexatious complaint
The wheels of justice grind slooooooooowly…
After almost three years (and after exhaustion of all appeals) since first winning the judgment against “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) for CEW’s “frivolous, groundless, and vexatious” campaign finance complaint against Clear The Bench Colorado (back in July 2010), as spelled out by court order in December 2010, CEW has finally paid what they have owed us for years.
Clear The Bench Colorado‘s victory against CEW, winning an award of attorney’s fees, is only the second time that CEW (with a near decade-long history of conducting harassing legal attacks) has been forced to pay. It is rare (indeed, almost unheard of – though not totally unprecedented) for attorney’s fees to be awarded to the defendant in this type of case, as Face The State had pointed out in an earlier article (“Judicial-reform group lashes back at ‘frivolous, groundless’ complaint“):
Attorneys fees are awarded sparingly by Colorado judges, largely because those requesting the sanction must prove opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.
The award indicates that the judge not only thought that CEW’s case (or “complaint”) was bad – he thought it was SO bad that he took the unusual step of slapping CEW with the bill (which, as noted, runs into the ‘tens of thousands’).
The ’Order Awarding Attorney Fees and Costs‘ confirmed the complete lack of legal merit in CEW’s original complaint against Clear The Bench Colorado:
Because CEW’s claim was not supported by the undisputed evidence or by the plain language of the law, the ALJ found CEW’s complaint substantially groundless and frivolous. The ALJ therefore granted CTBC’s request for attorney fees and costs…
Confirmation of the award of legal fees and costs - and more importantly, confirmation of the “frivolous, groundless, and vexatious” nature of CEW’s original complaint – comes as both victory and vindication for Clear The Bench Colorado. As noted previously by CTBC and knowledgeable observers of the legal and political scenes, the award of legal fees to the defendant is an extreme rarity.
CEW’s attacks against Clear The Bench Colorado fit an ongoing pattern of politically motivated “ethics” complaints designed to distract, disorient, and sling mud in the (vain) hope that something might stick. Ultimately, they don’t care if they win or lose the case (their lopsided loss-win ratio bears this out), since their priorities are (1) smear, (2) frame the media debate and gain attention, (3) divert resources and attention, (4) intimidate, and (5) maybe (if they get lucky) occasionally win a case. As many publications noted at the time, CEW’s attack was just another cheap political stunt. Even the Secretary of State’s office called CEW Director Toro’s statements “disingenuous” (which is a polite way of saying, ‘lying through your teeth’).
Groups like CEW – with the massive amounts of funding they receive from their parent organization (Washington, DC based CREW) and from local leftist funders Tim Gill, Pat Stryker, Jared Polis, and Rutt Bridges right here in Colorado, can continue to draw upon deep reservoirs of cash in support of attacks and legal harassment of their ideological foes – abusing the legal system as a political weapon.
Unless and until meaningful sanctions against such abuse of the legal system as a political weapon are implemented and consistently enforced, citizens engaging in civic activity (along with political campaigns at all levels) can expect to continue to be subject to these kinds of harassing attacks.
Clear The Bench Colorado‘s victory against the unethical ‘Colorado Ethics Watch’ – holding them accountable for their abuse of the legal system – is one small step in the direction of restoring some measure of sanity (and accountability) to the courts.
Once in a while – the Underdog wins.
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.
Colorado Supreme Court overturns Public Utilities Commission ban on new taxi licenses (denying Mile High Cab market entry)
The Colorado Supreme Court issued a unanimous ruling in favor of a company (Mile High Cab) earlier denied entry into the taxi market by the state’s Public Utilities Commission.
As a Denver Post article (“Mile High Cab withs [sic] Supreme Court case against public utilities“) notes:
The state’s Public Utilities Commission in July 2010 refused to grant Mile High’s request for 150 cab licenses based on the commission’s belief that the city did not need more taxis. Monday’s Supreme Court decision reverses a 2011 Denver District Court ruling that upheld the PUC’s license denial.
(Interestingly, the Public Utilities Commission shortly thereafter granted existing taxicab companies and additional 300 licenses).
The Colorado Supreme Court’s ruling overturned both an Administrative Law Judge (ALJ) and Denver District Court ruling upholding the PUC decision.
“The people of Denver don’t need a government agency deciding whether they have too many transportation options any more than they need a government agency deciding whether the city has too many restaurants or shoe stores,” said Robert McNamara, a senior attorney with the Institute for Justice, which represented Mile High, in a statement.
Although the Colorado Supreme Court’s ruling on this case is certainly both welcome and correct, one cautions against reading too much into the outcome.
The case was (albeit correctly) decided on a fairly narrow reading of the applicable statute (although, one might argue, that is precisely what one should expect from a court of law – vs. a court of opinion or judicial activism). (See: What makes a good judge?)
The key finding in the case:
“Whatever might be the precise limits and applicability of the doctrine of regulated competition, as well as the precise meanings of and relationships among the terms “public interest,” “public need,” and “public convenience and necessity,” there is no dispute that once an applicant for service in Denver had proved its fitness, the Commission was statutorily obligated to issue a certificate unless those opposing the application were able to prove both that the public convenience and necessity did not require its issuance and that issuance of the certificate would be detrimental to the public interest.”
A rare win for both common sense and a clear interpretation and application of the law – as written.
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.
“Four More Years?” Clear The Bench Colorado 4th anniversary today, still state’s only judicial accountability organization
“Time flies when you’re having fun…”
Hard to believe, but it has already (only?) been 4 years since the founding of our state’s only effective judicial accountability organization, Clear The Bench Colorado.
Starting as nothing more than an idea – knowing that Colorado judges are accountable to the people, that Colorado voters deserve more information on our state’s powerful 3rd branch of government – Clear The Bench Colorado has effected a much-needed (and long-overdue) awakening about the role and importance of Colorado’s judiciary.
Clear The Bench Colorado played a role in “encouraging” the self-removal of two of the worst state supreme court justices in Colorado history (Chief Justice Mary Mullarkey quit the bench in 2010 rather than face the voters, and Justice Alex Martinez quit the bench after receiving the lowest voter approval of any supreme court justice in state history some time after the 2010 elections) – resulting in a much-improved composition of our state’s highest court.
In fact, over the last couple of years, court challenges have achieved the ONLY significant victories for freedom in Colorado – since CTBC’s founding, overturning the Amazon Tax, overturning the CU Gun Ban, upholding the Douglas County school choice program, and (most recently) overturning unconstitutional legislation restricting petition-gathering for ballot initiatives.
Cases still pending in Colorado courts include a challenge to the unconstitutional FASTER car tax (er, “fee”), the statewide school funding case (called the “SuperBowl of school funding litigation” –with potentially ‘devastating consequences’ for Colorado’s budget), and challenges to recent “gun control” legislation and challenges to rules restricting free speech.
Clear The Bench Colorado helped Colorado voters to “Know Your Judge” with substantive evaluations of judicial performance prior to the November 2012 and 2010 elections – the ONLY source of reliable, substantive information on judges appearing on the ballot.
Statewide legislative elections in 2012 were significantly impacted (if not effectively pre-determined outright) by results of the Colorado Supreme Court’s December 2011 rulings on the reapportionment of state legislative districts – leading to lopsided majorities for Democrats in both chambers of the state legislature, despite actually receiving fewer votes overall (45% to 48.5% of total votes/candidates)
BOTTOM LINE:
Few, if any, grassroots organizations have had as much impact on the political and civic arena as has Clear The Bench Colorado over the last four years.
Will Clear The Bench Colorado continue to help reform Colorado’s judiciary by promoting transparency and accountability, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts, over the next four years?
Will Colorado be able to count on CTBC’s useful and substantive evaluations of judicial performance in coming elections?
The choice is yours, Colorado.
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.
Colorado’s Opportunity to Protect First Amendment Rights (Guest Commentary, Center for Competitive Politics)
Colorado’s Opportunity to Protect First Amendment Rights was written by Tyler Martinez and originally published by the Center for Competitive Politics, and is re-published here as a guest commentary with the permission of the original author/publisher.
Clear The Bench Colorado occasionally publishes articles of topical interest as guest commentaries;
for further information, contact us here.
Colorado’s Opportunity to Protect First Amendment Rights
May the government ban the publication of books if they contain only one sentence of express advocacy, such as “Vote for Smith”?
At the oral argument for Citizens United v. FEC, the federal government argued that campaign finance laws could ban a corporation, presumably including book publishers, from producing a book with even one sentence of express advocacy. The government’s stance was so shocking that the U.S. Supreme Court ordered another set of briefings and arguments on that issue, and today we have the famous decision upholding the right of corporations to make independent expenditures.
This May, a similar question will be heard by the Colorado Supreme Court in Coalition for Secular Government v. Gessler. This case centers around a small nonprofit, run by Diana Hsieh, a doctor of philosophy, who wanted to discuss a secular understanding of the principles of life, liberty, and property. To do this, Dr. Hsieh formed a nonprofit corporation, which she named the Coalition for Secular Government (CSG). CSG commissioned a paper discussing its philosophy regarding human personhood, written by Dr. Hsieh and her friend Ari Armstrong. On behalf of CSG, Dr. Hsieh and Mr. Armstrong raised money from their friends to help pay for the costs of writing and publishing the paper. They also ran some Facebook ads and made flyers to let people know about the paper.
The paper is 32 pages long, with 176 endnotes. It makes philosophical arguments concerning the complex public policy debate surrounding the definition of personhood. The paper used a proposed Colorado ballot measure as a backdrop for its discussion on the issue. The paper concludes with a single sentence of express advocacy: “If you believe that ‘human life has value,’ the only moral choice is to vote against Amendment 62.”
This one sentence of express advocacy meant that CSG may be forced to register as a issue committee with the state of Colorado. The state’s own briefing in the case has admitted that, but for this single sentence, the paper would go entirely unregulated by the Colorado government. While Colorado does not ban books, it does demand burdensome reporting and disclosure. Registration requires reporting the names and addresses of people who give more than $20 to help a cause—even if it is free help with Web design by a family member. Registration also requires documenting which post office an organization uses, and from which Office Depot it purchases printer paper.
The costs of failing to file these extensive reports, or not filing properly, can be extreme. One day, Dr. Hsieh’s house flooded and she was a day late with CSG’s required report. She then faced a $50 per day fine. Fortunately, this fine was waived, but only after needing to plead with the Secretary of State’s office. Even normal, non-flood-related compliance with Colorado’s byzantine filing system frustrated Dr. Hsieh and left her in constant fear of fines or lawsuits, just because she wanted to weigh in with her philosophical views.
This is not the first time the registering and reporting burdens required of issue committees has come up in Colorado. In the 2010 case of Sampson v. Buescher, a small group of residents outside of Parker, Colorado, came together to fight being annexed into the City of Parker. These individuals had raised less than $1,000 for their cause when their opposition challenged the failure of the neighbors to register as an issue committee.
In assessing the homeowners’ challenge, the Tenth Circuit concluded that Colorado’s issue committee disclosure and reporting requirements “substantial[ly]” burdened the homeowners’ First Amendment rights. The court relied on Citizens United and held that: “[t]he First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.”
Unfortunately, the state of Colorado failed to heed the Tenth Circuit, and CSG had to call the legal team at the Center for Competitive Politics (CCP) for help. The CCP legal team filed a complaint alleging that, even though CSG plans to raise no more than $3,500 for updating and publishing their public policy paper, the state of Colorado appears to demand that CSG register as an issue committee. Once registered, CSG will again face all of the burdens of reporting their friends and allies, naming where they bought envelopes, and facing lawsuits and fines from the state for making even the slightest mistake.
Interestingly, CSG’s case was initially brought before a federal court. But Colorado law is so ambiguous that the federal judge had to ask the Colorado Supreme Court just what the Colorado law means. As a result, CCP will be before the Colorado Supreme Court this May 8 arguing the merits of registering lengthy policy papers with only one sentence of express advocacy.
As the Citizens United Court noted, it does violence to freedom of speech when a citizen must hire an attorney just to be sure how to speak. Hopefully, the Colorado Supreme Court will agree with that principle.
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Colorado Supreme Court asked by Federal judge to clarify state campaign finance laws