Colorado Courts Continue to Play Politics in 2011…

Another tumultuous year has come and gone for the Colorado judiciary - and once again, Colorado Citizens and taxpayers have been hammered by the gavels of Colorado judges pounding their personal preferences over the will of the people - and the rule of law.

Last year closed with Colorado being declared a “judicial hellhole” by a national judicial evaluation organization (one of only three state supreme courts nationwide to qualify for the “honor”, joining Michigan and perennial favorite West Virginia in being so recognized).  The 2011 legislative session failed in repealing all but two of 2010’s unconstitutional “Dirty Dozen” tax increases (facilitated by the Colorado Supreme Court) or the even more onerous 2009 “FASTER” Colorado Car Tax legislation (aided and abetted by yet another anti-constitutional ruling by the Colorado Supreme Court’s “Mullarkey Majority” enabling taxes to masquerade as “fees”), and even almost passed another tax increase (the “movie-ticket tax“) attempting to exploit the court’s creation of anti-TABOR “loopholes.”

Spring and Summer was dominated by legislative battles over congressional redistricting (sadly, the state senate reprised the 2000 playbook of abdicating responsibility to send it to the courts) and the Colorado Reapportionment Commission’s public hearings on re-setting the boundaries of our state legislative districts.  Both issues came to a head in court battles during the Fall, with the Colorado Supreme Court’s ultimate decision in both cases (determining the political shape of Colorado for the next decade) coming in early December (December 5th & December 12th, respectively).

Colorado courts were also a central battlefield for Education policy, as one Denver District judge threw out Douglas County’s attempts to enable greater school choice, and another Denver District judge declared the state system of funding schools “unconscionable” while advancing the power of the courts to determine “proper” levels of school funding (despite the Constitution’s delegation of that power to the legislative branch) - although that decision is likely to be overturned after an expensive (and long) appeal to the Colorado Supreme Court.

In fact, 3 out of 4 “Top Colorado Political Stories of 2011” directly involve Colorado’s politicized judiciary (and the remainder, the voter rejection of tax increases at the ballot box, is juxtaposed against yet another court-approved tax increase the day before the vote):

1. Redistricting/Reapportionment
2. Failure of Prop 103
3. Lobato decision
4. Douglas County school vouchers

Cases such as Lobato - particularly Rappaport’s biased ruling - and the politicized nature of the court’s involvement in the congressional redistricting and state legislative reapportionment cases - 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. Deciding issues of policy - instead of fairly and impartially upholding the law - is not it.

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’s State Board of Education voted 4-3 Tuesday morning to appeal Denver District Court Judge Sheila Rappaport’s ruling against the state in the Lobato school funding lawsuit.  Colorado Governor John Hickenlooper had officially announced last Wednesday* that the state would appeal Denver District Court Judge Sheila Rappaport’s ruling that the state’s education funding is not “thorough and uniform” as referenced in constitutional language (Colorado Constitution, Article IX, Section 2).  Rappaport’s 183-page ruling also paved the way for court-ordered tax increases, stating:

“It is also apparent that increased funding will be required.”

The state education board’s decision to appeal the Lobato ruling is significant because although the board’s vote to appeal Rappaport’s ruling was decided on a party-line basis (Education News Colorado)

(SBE’s four Republicans, Bob Schaffer, Marcia Neal, Paul Lundeen and Deb Scheffel, voted for appeal while Democrats Elaine Gantz Berman, Jane Goff and Angelika Schroader voted no)

the board joins Democrat Governor John Hickenlooper and Republican Attorney General John Suthers in a broad, bipartisan coalition of state elected officials seeking to overturn judicial usurpation of executive and legislative authority.

Governor Hickenlooper and Attorney General Suthers had earlier warned of “devastating” consequences for the state if the Lobato plaintiffs were successful in forcing additional school spending.

Although the lawsuit (and Rappaport’s ruling) is likely to be overturned (thanks to the departure of former Chief Justice Mullarkey and the more recent resignation of Justice Alex Martinez, 2 of the original 4 votes keeping the Lobato lawsuit alive in 2009 are now gone), appealing the case will cost Colorado taxpayers plenty:

[Mike] Saccone [spokesman for the attorney general's office] said the legislature has appropriated up to $3.5 million to defend the state against the suit.

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 (meaning, 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 is a fiscal, legal, and political disaster in the making.

Read more about the Lobato school funding case in these articles:

• “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 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 full 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.

* Governor Hickenlooper responded to a question at a 13 December 2011 town hall event about Lobato that he was leaning towards an appeal, since the court’s ruling “clearly violated TABOR” and Colorado voters had recently rejected a tax increase purportedly targeted for education funding (Prop. 103).

The Constitution says we can’t raise taxes without a vote of the people - the people just voted specifically on more revenues for education, and the people pretty clearly voted 2-to-1 that this was a bad idea. So how can the courts say that we should do it?

Governor Hickenlooper clearly disagreed with Rappaport’s ruling, and clearly expects to win on appeal, since the alternative would 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 update on the Lobato appeal (playing this week on 560KLZ The Source)

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.

Welcome to the 2011 Christmas edition of the Clear The Bench Colorado Friday Funnies!

Another tumultuous year has come and gone for the Colorado judiciary - and once again, Colorado Citizens and taxpayers have been hammered by the gavels of Colorado judges pounding their personal preferences over the will of the people - and the rule of law.

Last year closed with Colorado being declared a “judicial hellhole” by a national judicial evaluation organization (one of only three state supreme courts nationwide to qualify for the “honor”, joining Michigan and perennial favorite West Virginia in being so recognized).  The 2011 legislative session failed in repealing all but two of 2010’s unconstitutional “Dirty Dozen” tax increases (facilitated by the Colorado Supreme Court) or the even more onerous 2009 “FASTER” Colorado Car Tax legislation (aided and abetted by yet another anti-constitutional ruling by the Colorado Supreme Court’s “Mullarkey Majority” enabling taxes to masquerade as “fees”), and even almost passed another tax increase (the “movie-ticket tax“) attempting to exploit the court’s creation of anti-TABOR “loopholes.”

Spring and Summer was dominated by legislative battles over congressional redistricting (sadly, the state senate reprised the 2000 playbook of abdicating responsibility to send it to the courts) and the Colorado Reapportionment Commission’s public hearings on re-setting the boundaries of our state legislative districts.  Both issues came to a head in court battles during the Fall, with the Colorado Supreme Court’s ultimate decision in both cases (determining the political shape of Colorado for the next decade) coming in early December (December 5th & December 12th, respectively).

Colorado courts were also a central battlefield for Education policy, as one Denver District judge threw out Douglas County’s attempts to enable greater school choice, and another Denver District judge declared the state system of funding schools “unconscionable” while advancing the power of the courts to determine “proper” levels of school funding (despite the Constitution’s delegation of that power to the legislative branch) - although that decision is likely to be overturned after an expensive - and long - appeal to the Colorado Supreme Court.

Although remaining mindful that what’s at stake - holding our judiciary accountable for serial violations of our constitutional rights (to vote on taxes, even when taxes are called “fees”; defend our property against unjust seizure; bear arms in self-defense; and too many others to list) is serious business, all work and no play makes Matty a dull boy.

Although still awaiting payment a year later after “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) was once again ordered to pay Clear The Bench Colorado thousands of $ in legal fees (owed since the judge’s original ruling in July found their complaint “frivolous, groundless, & vexatious”) brings a rueful chuckle, the following video (even if focused on the national level) elicited a hearty laugh:

…and a Leftist Judiciary!

While still afflicted with the (black-robed) ghosts of Christmas past in our Christmas present, we can still act to save our Christmas future. Continue to support Clear The Bench Colorado with comments (Sound Off!) and 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 Governor John Hickenlooper officially announced Wednesday* that the state would appeal Denver District Court Judge Sheila Rappaport’s ruling that the state’s education funding is not “thorough and uniform” as referenced in constitutional language (Colorado Constitution, Article IX, Section 2). Rappaport’s 183-page ruling also paved the way for court-ordered tax increases, stating:

“It is also apparent that increased funding will be required.”

Rappaport’s 183-page opus spends a mere 10 pages even purporting to address issues of law (the remainder is dedicated to a lengthy exposition of the judge’s views on the educational system and her personal opinions on the worthiness of various witnesses) and fails to address how to enforce funding increases in compliance with other constitutional provisions.  As the governor’s statement noted,

“The judge’s decision provided little practical guidance on how the state should fund a ‘thorough and uniform’ system of public education,” said Hickenlooper.  ”Moreover, while the judge focused on the inadequacy of state funding, she did not reconcile this issue with other very relevant provisions of the Constitution, including the Taxpayer’s Bill of Rights, the Gallagher Amendment and Amendment 23.”

A Denver Post article (”Gov. Hickenlooper to appeal Lobato education-funding decision to state Supreme Court; state board of education delays its own decision“) also noted the budgetary implications:

The lawsuit seeks no specific sum of money, but plaintiffs have pointed to studies estimating the state is underfunding education by as much as $4 billion.

The state now spends more than 40 percent, or $3.2 billion in the 2010-11 fiscal year that ended in June, of its almost $7 billion general fund on K-12 schools.

Coloradans in November by a two-to-one margin shot down a $3 billion tax increase measure for schools.

Governor Hickenlooper and Attorney General Suthers had earlier warned of “devastating” consequences for the state if the Lobato plaintiffs were successful in forcing additional school spending.

Although the lawsuit (and Rappaport’s ruling) is likely to be overturned (thanks to the departure of former Chief Justice Mullarkey and the more recent resignation of Justice Alex Martinez, 2 of the original 4 votes keeping the Lobato lawsuit alive in 2009 are now gone), appealing the case will cost Colorado taxpayers plenty:

[Mike] Saccone [spokesman for the attorney general's office] said the legislature has appropriated up to $3.5 million to defend the state against the suit.

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 (meaning, 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 is a fiscal, legal, and political disaster in the making.

Read more about the Lobato school funding case in these articles:

• “Judicial Overreach” (Pueblo Chieftain editorial, 14 December 2011)
• “Judge Sets Constitution Aside in School Finance Ruling” (Education Policy Center, 12 December 2011)
• “Victory for Lobato Plaintiffs” (Education News Colorado, 9 December 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 full 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.

* Governor Hickenlooper responded to a question at a 13 December 2011 town hall event about Lobato that he was leaning towards an appeal, since the court’s ruling “clearly violated TABOR” and Colorado voters had recently rejected a tax increase purportedly targeted for education funding (Prop. 103)

The Constitution says we can’t raise taxes without a vote of the people - the people just voted specifically on more revenues for education, and the people pretty clearly voted 2-to-1 that this was a bad idea. So how can the courts say that we should do it?

Governor Hickenlooper clearly disagreed with Rappaport’s ruling, and clearly expects to win on appeal, since the alternative would 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.”

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

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

Ultimately, though - it’s worth the effort.

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

Abridging the freedom of speech - particularly political speech - has a long and sordid history, as the ruling ‘Establishment’ or entrenched special interests seek to suppress criticism and competition.

In “modern” and “civilized” times, the tools of repressing political speech have “evolved” from the brute force of physically preventing anyone from speaking out to the more subtle and “sophisticated” methods of legislating limits, building bureaucratic barriers, and piling on paperwork for “permission” in order to exercise what is a fundamental right.

A confusing cloud of campaign finance laws in Colorado challenge the Constitution, chill free speech, and curtail civic participation.

On Thursday December 15th, the office of Colorado Secretary of State held open hearings to receive public testimony (chaired by Secretary of State Scott Gessler) on rules changes oriented towards clarifying and reforming Colorado’s unconstitutional campaign finance laws.

A number of people - both supporting and opposing specific rules changes, and/or speaking out more generally on the topic of the impact of campaign finance laws on political speech and civic participation - submitted written comments, showed up in person to testify, or both.

Curiously, the people supporting the reforms to campaign finance rules largely spoke as individuals or as representatives of small, grassroot organizations, while those opposing the rules reforms almost uniformly represented well-established politically-active special interest groups (see below for list).

A common theme emerged regarding the complexity of existing campaign laws, and the resultant cost, burden and difficulty of compliance.

Some people - such as Colorado state senator John Morse - think that’s just “the price of transparency”:

(Video courtesy of Ari Armstrong of Free Colorado)

Organizations opposing rules changes to reform campaign finance laws at the hearing:

• Colorado Progressive Coalition (Hillary Jorgenson)
• Occupy Denver (Chad Kautzer)
• “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) (Luis Toro)
• New Era Colorado (Chris Getzan)
• Colorado Democratic Party (Martha Tierney)
• Mi Familia Vota (Grace Lopez Ramirez)
• Metro Organizations for People (MOP) (Dawn Riley Duval)
• Mark Grueskin (represents Democrat Party and “Citizens for Integrity” PAC)

Curiously, none of these politically active organizations - NOT ONE - is subject to the same reporting and disclosure requirements that they support imposing on others.
(NOTE: the state Democrat and Republican parties are subject to some campaign finance reporting and disclosure requirements, but differ in some details)

In fact, the Colorado Statesman profiled some of these groups in a pair of articles last year:

• Campaign finance in Colorado: Where’s the money?
• Disclosure isn’t always forthcoming

Testifying in favor of rules changes to reform campaign finance laws at the hearing:

• Center for Competitive Politics (Allen Dickerson)
• Colorado Republican Party (Ryan Call)
• Coalition for Secular Government (Diana Hsieh)
• Freedom & Individual Rights in Medicine (FIRM) (Paul Hsieh)
• Clear The Bench Colorado (Matt Arnold)
• Mario Nicolais (campaign finance attorney, Hackstaff Law Group)
• and 9 private (individual) citizens

Clear The Bench Colorado director Matt Arnold testifies in favor of reforming Colorado campaign laws

The Revised Draft of Proposed Rules is posted on the Secretary of State’s website, along with written comments submitted in support or opposition.  Interested individuals or groups can still submit written comments to the Secretary of State’s office until Friday, 23 December.

Other videos on how Colorado campaign laws adversely impact free speech:

• Campaign Laws Violate Free Speech (Ari Armstrong, at Liberty On The Rocks 8 Dec 2011)
• Hsieh Reviews Harms of Campaign Controls (Diana Hsieh, Liberty On The Rocks 8 Dec 2011)
• Ari Armstrong Testifies at Dec. 15 Campaign Rule Hearing
• Diana Hsieh Testifies at Dec. 15 Campaign Rule Hearing
• Paul Hsieh Testifies at Dec. 15 Campaign Rule Hearing
• Matt Arnold Testifies at Dec. 15 Campaign Rule Hearing

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.

The long saga of Colorado’s Congressional redistricting and state legislative district reapportionment has been decided for the next decade by the Colorado Supreme Court in a pair of recent rulings (ruling to uphold Denver District Court Judge Robert Hyatt’s ruling on Congressional Redistricting December 5th, then ruling to uphold the Colorado Reapportionment Commission’s resubmitted state legislative district maps on December 12th).

Over a million Colorado citizens weren’t laughing when they discovered they’d been moved into new Congressional districts by court order, and even more Colorado voters didn’t get the joke when they were shuffled into new (and at times bizarrely formed) state legislative districts, either - contrary to the views expressed by countless individuals who’d testified at many hearings over the summer (one round of hearings in June, followed by another round of public hearings on maps incorporating public comment and testimony throughout the month of August) and contrary to the objections raised by numerous city and country governments filing legal challenges against the commission’s constitutionally suspect maps.

However, even in the aftermath of such tectonic shifts in Colorado’s political landscape, there’s some humor to be found - as illustrated by the following political cartoon, courtesy of Benjamin Hummel (creator of Politix Cartoons):

“Benjamin Hummel, the creator of Politix Cartoons, is the greatest conservative political cartoonist within a one mile radius of his studio in Golden, Colorado. Outside that, his work has been republished on several blogs, including JonCaldara.com, PoliticalLore.com and PARitzer.com. As a member of the American Association of Editorial Cartoonists, his work has also been published in several textbooks and university handbooks across the nation, and his blog Politixcartoons.com has an international following.”

REFERENCE:

In response to numerous requests and for handy reference, links to Colorado’s Congressional District and state legislative district maps are posted below:

Congressional District map:

(DETAIL: the Denver Post has created a “find your congressional district” application)

State legislative district maps:

• House Map: Final House Plan Maps and Reports
• Senate Map: Final Senate Plan Maps and Reports
• Google Earth maps (requires Google Earth download): Final House Plan (download zip file),Final Senate Plan (download zip file)
• UPDATE: Information page and map (11″ x 17″) for individual districts (House) (Senate)

Additional references:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)

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

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

Ultimately, though - it’s worth the effort.

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

Abridging the freedom of speech - particularly political speech - has a long and sordid history, as the ruling ‘Establishment’ or entrenched special interests seek to suppress criticism and competition.

Techniques have evolved from outright bans, gag orders, and brutal repression to a more subtle and “civilized” approach: suppression by regulation and legal intimidation.

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

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

(10) (a) “Issue committee” means any person, other than a natural person, or any group of two or more persons, including natural persons:
(I) That has a major purpose of supporting or opposing any ballot issue or ballot question; or
(II) That has accepted or made contributions or expenditures in excess of two hundred dollars to support or oppose any ballot issue or ballot question.
(b) “Issue committee” does not include political parties, political committees, small donor committees, or candidate committees as otherwise defined in this section.

Colorado’s ‘Campaign Finance Laws’ challenge the Constitution, chill free speech, and curtail civic participation

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

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

Origins of Colorado’s Campaign Finance Regime

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

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

Constitutional Challenges to Colorado’s Campaign Finance Regime

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

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

Rolling Back the Regime - Restoring Constitutional Protections

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

Last May, after soliciting and reviewing written comments and holding public hearings,  based on the overwhelming weight of public comment and testimony in favor of raising the registration and reporting threshold, the office of Secretary of State adopted the new rule on 13 May 2011.

Unsurprisingly, the rules change was challenged in court - by the perennial campaign finance attack group “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do), and advocacy group “Common Cause” which despite extensive political participation are not subject to the same financial disclosure and reporting regulations as the groups they attack.

Recently, Denver District Court Judge A. Bruce Jones ruled that Gessler “went beyond his authority” in adopting the rules change (Gessler is appealing).  Judge Jones (who is subject to a retention vote in 2012) had earlier “unloaded on Colorado Secretary of State Scott Gessler” at the initial hearing on the case - later admitting that he had not yet read the written briefs before issuing his critical remarks.

Pending the appeal, the office of Secretary of State is again holding public hearings (and accepting written comment) on these and other rules changes to Colorado’s campaign finance laws - most of which are oriented towards clarifying, simplifying, and/or reducing the burden on political participation.

The Revised Draft of Proposed Rules is posted on the Secretary of State’s website, along with written comments submitted in support or opposition.

Clear The Bench Colorado submitted a written brief in support of Proposed Rule 4 (clarifying requirements for Issue Committees) and Rule 20 (Redaction of Sensitive Information) and will offer verbal testimony at Thursday’s hearing as well.

(Hearing is scheduled for December 15, 2011 from 9:00AM to 12:00PM in the Blue Spruce Conference Room on the 2nd floor of the Secretary of State’s Office at 1700 Broadway, Denver CO 80290)

Written Comments

• Wade Buchanan, President, The Bell Policy Center (PDF) – 12/14/11
• Grace López Ramírez, Mi Familia Vota (PDF) – 12/14/11
• Christopher Getzan, New Era Colorado (PDF) – 12/14/11
• Lorena Garcia, Executive Director, Colorado Organization for Latina Opportunity and Reproductive Rights (PDF) – 12/14/11
• John Daniel (PDF) – 12/14/11
• Senator Morgan Carroll, Senate District 29 (PDF) – 12/14/11
• John Williams (PDF) – 12/13/11
• Paul Hsieh, MD (PDF) – 12/13/11
• Hannah Krening (PDF) - 12/13/11
• Chuck O’Reilly, Treasurer, Douglas County Republicans: Comment 1 (PDF) - 12/13/11
• Chuck O’Reilly, Treasurer, Douglas County Republicans: Comment 2 (PDF) - 12/13/11
• Bill Killgore (PDF) - 12/13/11
• Theresa Null (PDF) - 12/13/11
• Alan Guillaudeu (PDF) - 12/12/11
• Brian Lewis (PDF) - 12/12/11
• Trevor Conn (PDF) - 12/11/11
• Atlee Breland (PDF) - 12/11/11

Additional commentary on Colorado’s campaign finance regime

• It’s Time To Bring Some Sanity To Campaign Finance Laws, Forbes Op/Ed 13 December 2011
• Gessler emerges as the Free Speech Secretary of State, 13 December 2011
• There’s a Good Gessler, Too, Denver Post editorial 4 December 2011
• SOS Looks To Mitigate Burden Of Campaign Censorship Laws, 2 May 2011
• Why Colorado’s Campaign Laws Constitute Censorship, 5 May 2011
• CO Campaign Laws Chill Speech, 6 May 2011
• Colorado’s Campaign Laws Throw Common Sense Out The Window, 13 May Grand Junction Free Press
• Public’s ‘right to know’ can clash with right free speech, 14 May Colorado Springs Gazette

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

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

Ultimately, though - it’s worth the effort.

The Colorado Supreme Court today approved the state legislative district maps re-submitted by the Colorado Reapportionment Commission last week (adopted in a procedurally suspect manner on a 6-5 party-line vote, with “unaffiliated” Chairman Mario Carrera joining the commission’s other Democrats).

The Colorado Supreme Court’s decision is surprising, since the court had previously rejected the commission’s earlier maps for constitutional deficiencies less stark than those exhibited by the commission’s re-submitted maps.

• House Map: Final House Plan Maps and Reports
• Senate Map: Final Senate Plan Maps and Reports
• Google Earth maps (requires Google Earth download): Final House Plan (download zip file), Final Senate Plan (download zip file)
• Colorado Supreme Court “Order of Court” approving the Commission’s resubmitted maps

Given the constitutional deficiencies remaining in the Colorado Reapportionment Commission’s re-submitted maps, the procedural travesty by which the maps were adopted, and the availability of a more constitutionally-consistent alternative set of maps submitted as part of the ‘Minority Report’ appeal (which the majority commissioners had attempted to suppress), rejection of the commission’s maps - particularly given the court’s rejection of the commission’s previous set of constitutionally-deficient maps - appeared to be the only outcome consistent with constitutional and statutory criteria.

It will be interesting to analyze the reasoning by which a majority on the Colorado Supreme Court reached the conclusion that these maps were constitutionally valid once the court issues its full written opinion, which should follow within a week or so.

BOTTOM LINE:

The resubmitted maps retain a veritable plethora of constitutional deficiencies (in particular, failing to achieve the minimal splits in county lines, which was the primary rationale for the court’s rejection of the commission’s previous maps).  Municipal (city) splits were also multiplied, districts were not drawn to be as “compact and contiguous” as possible, and communities of interest were ignored or broken up. Additionally, the pairing of multiple incumbents into the same district raises additional constitutional issues - and one just-discovered “glitch” (”Glitch in new Colorado legislative map could unseat senator“) in the maps would result in “essentially airbrushing [State Senator Tim Neville] from the Senate after he serves next session.”

The ‘Minority Report’ challenge ably deconstructs the constitutional deficiencies of the commission’s re-submitted maps, and presents an alternative set of maps which better meet constitutional criteria (urging the adoption of the alternate maps by court order, per precedent established under similar circumstances several decades ago, as the best and most timely option).

The court’s decision is all the more surprising given the more centrist makeup of the current Colorado Supreme Court (following the departure of former Chief Justice Mary Mullarkey and the more recent resignation of Justice Alex Martinez, replaced with Justices Monica Marquez and Brian Boatright, who just assumed his seat last week), and in the face of a set of legislative maps that were seemingly designed “out of spite” and apparently “calculated to antagonize the court.”

Unfortunately, it is possible that politics trumped law in this highly-charged case.

Additional references:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)

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.

The Colorado Reapportionment Commission (charged with drawing our state legislative districts) officially submitted state legislative district maps rammed through on a party-line vote last week (6-5, with technically unaffiliated Chairman Mario Carrera joining the commission’s other Democrats) to the Colorado Supreme Court for review late Monday (6 December).

• House Map: House Resubmitted Plan Maps and Reports
• Senate Map: Senate Resubmitted Plan Maps and Reports
• Google Earth maps (requires Google Earth download): House Resubmitted Plan (download zip file), Senate Resubmitted Plan (download zip file)

The Colorado Supreme Court, upon receiving the commission’s resubmitted maps, quickly announced accelerated filing deadlines for the inevitable legal challenges to the maps, putting appeals on a very tight timeline.  A total of eighteen groups filed briefs by the 5:00PM Thursday deadline (exceeding the dozen briefs, including eleven challenges, filed against the commission’s previously submitted maps - maps ultimately rejected by the Colorado Supreme Court for failure to meet Colorado’s constitutional requirements).

UPDATE:

The “minority” commissioners on the Colorado Reapportionment Commission - denied a fair procedural hearing and opportunity to discuss changes, submit amendments, or even file a dissenting ‘Minority Report’ (per standard practice in past commissions) as part of the commission’s official resubmission of state legislative district maps - filed their ‘Minority Report’ as a separate legal challenge to the “official” commission maps just prior to the filing deadline yesterday.

The fact that the commission’s minority was actually forced by the Democrat majority (including officially unaffiliated chairman Mario Carrera) to file their Statement of Opposition to the re-submitted maps as a legal challenge highlights the procedurally deficient path by which the maps were rammed through the commission, as well as remaining constitutional deficiencies in the re-submitted maps:

The intentional actions of the six-member majority created an irrevocably flawed process that led to adoption of unconstitutional maps

The commissioners’ ‘Minority Report’ filing also presents alternate maps for both House and Senate that better meet constitutional criteria and non-constitutional factors, including:

• fewer county splits
• fewer city splits
• better preservation of communities of interest
• better “competitiveness” (as a whole, and by district)
• avoiding incumbent same-district pairings
• avoiding unconstitutional sequencing of senate district elections

As a remedy to both the procedural failings of the commission’s adoption of the re-submitted maps, and the constitutional deficiencies of the maps themselves, the ‘Minority Report’ challenge urges the Colorado Supreme Court to adopt the alternate maps submitted as the most appropriate and timely remedy - for which there is precedent (”In re Reapportionment 1982, 647 P.2d 209, 213 (Colo. 1982).”)

Because the Court is not presented with plans that are “each consistent with the constitutional requirements,” it is not faced with a choice between alternative, competing maps.  Instead, because it is left with only one set of maps consistent with the constitutional criteria, a set drawn by members of the Commission, it is appropriate for the Court to [order] adoption of those alternate maps.

BOTTOM LINE:

The resubmitted maps retain a veritable plethora of constitutional deficiencies (in particular, failing to achieve the minimal splits in county lines, which was the primary rationale for the court’s rejection of the commission’s previous maps).  Municipal (city) splits were also multiplied, districts were not drawn to be as “compact and contiguous” as possible, and communities of interest were ignored or broken up. Additionally, the pairing of multiple incumbents into the same district raises additional constitutional issues - and one just-discovered “glitch” (”Glitch in new Colorado legislative map could unseat senator“) in the maps would result in “essentially airbrushing [State Senator Tim Neville] from the Senate after he serves next session.”

The ‘Minority Report’ challenge ably deconstructs the constitutional deficiencies of the commission’s re-submitted maps, and presents an alternative set of maps which better meet constitutional criteria (urging the adoption of the alternate maps by court order, per precedent established under similar circumstances several decades ago, as the best and most timely option).

Particularly given the more centrist makeup of the current Colorado Supreme Court (following the departure of former Chief Justice Mary Mullarkey & the more recent resignation of Justice Alex Martinez, replaced with Justices Monica Marquez and Brian Boatright, who just assumed his seat last week), the court would seem likely to order the adoption of the more constitutionally-consistent ‘Minority Report’ map over the ratification of a set of legislative maps seemingly designed “out of spite” and apparently “calculated to antagonize the court.”

In any event - we expect that the Colorado Supreme Court’s reply will not be long in waiting.

Additional references:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)

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.

The Colorado Reapportionment Commission (charged with drawing our state legislative districts) officially submitted state legislative district maps rammed through on a party-line vote last week (6-5, with technically unaffiliated Chairman Mario Carrera joining the commission’s other Democrats) to the Colorado Supreme Court for review late Monday.

• House Map: House Resubmitted Plan Maps and Reports
• Senate Map: Senate Resubmitted Plan Maps and Reports
• Google Earth maps (requires Google Earth download): House Resubmitted Plan (download zip file), Senate Resubmitted Plan (download zip file)

The Colorado Supreme Court, upon receiving the commission’s resubmitted maps, quickly announced accelerated filing deadlines for the inevitable legal challenges to the maps, putting appeals on a very tight timeline.  A total of eighteen groups filed briefs by the 5:00PM Thursday deadline (exceeding the dozen briefs, including eleven challenges, filed against the commission’s previously submitted maps - maps ultimately rejected by the Colorado Supreme Court for failure to meet Colorado’s constitutional requirements).

Many of the same county and municipal governments that had challenged the commission’s previous maps did so again, on much the same grounds - emphasizing the repeated failure of the maps to meet the Colorado constitutional criteria of minimizing county and municipal splits, maintaining compact & contiguous districts, and preserving communities of interest. (Article V, Section 47)

Interestingly, a number of non-governmental special interest groups filed amicus curiae briefs in support of the commission’s maps - including representatives of the AFL-CIO, NARAL Pro-Choice Colorado, Planned Parenthood, Mi Familia Vota & “New Era Colorado” (a Boulder-based “progressive” group).

No county or city governments filed amicus curiae briefs in favor of the commission’s maps (one county, Garfield County, filed a “does not oppose” brief)

Briefs filed in Response to 12/5/11 Plan Resubmission (Opposing):

• Brief of Gunnison County Board of County Commissioners
• Brief of J.M. Fay (4-Mile Neighborhood)
• Brief of Elbert County Board of Commissioners, et al.
• Brief of Delta County Board of Commissioners
• Brief of Club 20 and Southwest Colorado
• Brief of Grand County Board of Commissioners
• Brief of Town of Superior et al.
• Brief of Washington County Commissioners
• Brief of Colorado Citizens for Fair Representation
• Brief of El Paso County Clerk & Recorder
• Brief of Colorado Reapportionment Commissioners (’Minority Report’)

Briefs filed in Response to 12/5/11 Plan Resubmission (Does Not Oppose):

• Brief of Garfield County Board of County Commissioners

Briefs filed in Response to 12/5/11 Plan Resubmission (Supporting):

• Brief of Colorado Reapportionment Commission (official majority report)
• Brief of Michael Cerbo (AFL-CIO)
• Brief of Mi Familia Vota Education Fund
• Brief of NARAL Pro-Choice Colorado Inc.
• Brief of New Era Colorado
• Brief of Planned Parenthood Votes Colorado
• Brief of Clean Water Action
• Brief of Jennie Sanchez

Once receiving written briefs, the Colorado Supreme Court would normally schedule oral arguments; however, due to the extremely constrained timeline (by statute, final state legislative district maps are due to the Secretary of State for certification no later than next Wednesday, 14 December), the court could conceivably issue a decision based on the written briefs alone as early as Friday (9 December) or even over the weekend, in order to allow time for any necessary adjustments.

BOTTOM LINE:

The resubmitted maps retain a veritable plethora of constitutional deficiencies (in particular, failing to achieve the minimal splits in county lines, which was the primary rationale for the court’s rejection of the commission’s previous maps).  Municipal (city) splits were also multiplied, districts were not drawn to be as “compact and contiguous” as possible, and communities of interest were ignored or broken up. Additionally, the pairing of multiple incumbents into the same district raises additional constitutional issues - and one just-discovered “glitch” (”Glitch in new Colorado legislative map could unseat senator“) in the maps would result in “essentially airbrushing [State Senator Tim Neville] from the Senate after he serves next session.”

It would be absolutely inconsistent of a majority on the Colorado Supreme Court to approve the commission’s most recently resubmitted state legislative maps in light of these glaring constitutional deficiencies (not to mention the procedural farce by which these maps were rammed through the commission absent discussion, opportunity for amendments, public transparency, or even the inclusion of an official ‘Minority Report’ as has happened in the past).

Particularly given the more centrist makeup of the current Colorado Supreme Court (following the departure of former Chief Justice Mary Mullarkey & the more recent resignation of Justice Alex Martinez, replaced with Justices Monica Marquez and Brian Boatright, who just assumed his seat last week), the commission’s approval of a set of legislative maps seemingly designed “out of spite” and apparently “calculated to antagonize the court” may succeed in making history.

Additional references:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)

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.