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.

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.

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.

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.

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.

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

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.

 Related Articles:

Colorado Supreme Court asked by Federal judge to clarify state campaign finance laws

Speaking Out on Reforming Colorado’s Campaign Finance Laws

Lobato case argued before the Colorado Supreme Court

(Denver Post, ”Colorado Supreme Court hears arguments in school funding lawsuit” 7 MAR 13)

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.

That 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).

In oral arguments before the Colorado Supreme Court, Assistant Attorney General Jonathan Fero challenged Rappaport’s finding that the phrase “thorough and uniform education” in Colorado’s Constitution means that “if any students aren’t making it the whole system is irrational” – stating

“Universal achievement cannot be what the constitution requires”

Plaintiffs argued that because some groups show disparate performance, the state’s educational system is not “thorough and uniform” – and allege that shortfalls in educational outcomes are due to the state’s K-12 educational system being underfunded by $3 billion.  As reported in the Alamosa News coverage of the trial (“Supreme Court to consider Lobato case“),

According to the Joint Budget Committee Appropriations Report 2010-11 and the Colorado Attorney General (AG), K-12 in Colorado receives 45.6 percent of the general fund or $3.2 billion of a $6.97 billion general fund.

A Colorado Supreme Court ruling in favor of the plaintiffs would have “devastating consequences” for the state, according to Governor Hickenlooper.  As summarized by the Alamosa News article,

If the plaintiffs were to win, the state would either have to raise taxes by at least 50 percent or have to devote 89 percent of the general fund budget to K-12 funding to meet this obligation, crowding out things such as Medicaid, unemployment assistance, transportation, public safety and higher education

Assistant AG Fero also emphasized that a court mandate to raise taxes or require more spending would intrude upon the legislature’s authority to set policy and violate the constitutionally-defined separation of powers between branches of state government (an issue at the heart of the dissenting opinion in the 2009 ruling, as contemporaneously noted by Clear The Bench Colorado:

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

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).

Interestingly, two of the ‘unjust justices’ constituting the majority opinion in October 2009 (Mullarkey and Martinez) are no longer on the state’s highest court, while the 3 opponents of the original ruling remain.  Of the two replacements, one (Marquez) has (appropriately) recused herself from the case, as she had 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.

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:

• “Double talk on Lobato case before the Colorado Supreme Court” (Denver Post commentary, 13 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 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.

The Colorado Court of Appeals ruling in the case (Court of Appeals Nos. 11CA1856 & 11CA1857, “Taxpayers for Public Education v. Douglas County Board of Education”) struck down the Denver District court ruling that had permanently enjoined implementation of the Douglas County “Choice Scholarship Program” (a program providing scholarships for tuition at private or charter schools of the parents’ choice) on claims that the program violated the Colorado Public School Finance Act of 1994 and various provisions of the Colorado Constitution.  The higher court rejected both the plaintiffs’ standing to bring the suit in the first place, and the plaintiffs’ claims of constitutional violations – a resounding rebuttal to the lower court:

We conclude that plaintiffs do not have standing to seek redress for a claimed violation of the Act, and that the CSP does not violate any of the constitutional provisions on which plaintiffs rely.  Therefore, we reverse the district court’s judgment and remand the case for entry of judgment in defendants’ favor.

The court’s ruling does not come as a surprise (indeed, the Clear The Bench Colorado analysis of last November’s oral arguments before the Court of Appeals forecast a win for the appellants) but the extent of the higher court’s repudiation of Denver District Court Judge Michael Martinez is striking, particularly on the issue of the plaintiffs’ standing to bring suit under the School Finance Act:

The district court recited these factors but did not engage in any substantive analysis of them. Instead, the court conclusorily ruled that certain plaintiffs’ status as District students and parents of District students “confers a legal interest in the enforcement of the statutes enumerated in their claims.” In so ruling, the district court erred.

There is nothing in the language of the Act remotely suggesting that private citizens or groups have a right to seek judicial enforcement of its provisions.

The appeals court addressed – and resoundingly rejected – each of the plaintiffs claims alleging constitutional violations:

For clarity of analysis, we divide plaintiffs’ claims into three groups: (1) claims alleging violations of statutory and constitutional provisions which concern state schools generally – the Act and article IX, sections 2, 3, and 15; (2) claims alleging violations of constitutional provisions which concern aid to or support of religion and religious organizations – article II, section 4, and article IX, sections 7 and 8; and (3) the claim alleging a violation of article V, section 34, which concerns appropriations generally and appropriations to religious organizations specifically.

Claims based on the School Finance Act were rejected due to the plaintiffs lack of standing to bring a complaint in court, as noted above.

Claims that the “Choice Scholarship Program” violated the Colorado Constitution Article IX, Section 2 (“Thorough and Uniform System of Free Public Schools”) were also rejected by the Court of Appeals.

Interestingly, the court affirmed the role and responsibility of the elected school board as the presumptive constitutional authority in determining educational structure and content:

Pursuant to article IX, section 15 of the Colorado Constitution, the General Assembly created local school districts governed by boards of education. The directors of the boards are elected by qualified district electors, and “have control of instruction in the public schools of their respective districts.”

The court broadly rejected the plaintiffs claims of an Article IX Section 2 violation in no uncertain terms:

Plaintiffs misapprehend the constitutional mandate. It requires that a thorough and uniform system of free elementary through high school education be made available to students between the ages of six and twenty-one. See Lujan v. Colo. State Bd. of Educ., 649 P.2d 1005, 1025 (Colo. 1982) (this provision “is satisfied if thorough and uniform educational opportunities are available through state action in each school district”);

It plainly is not violated where a local school district decides to provide educational opportunities in addition to the free system the constitution requires. [emphasis added]

The court similarly rejected claims of a violation of Article IX, Section 3 (“Use of the Public School Fund”):

Article IX, section 3 requires only that money from the public school fund be “expended in the maintenance of the schools of the state” and “distributed amongst the several counties and school districts of the state, in such manner as may be prescribed by law.” It plainly applies to distributions made by the state, not local districts. And it requires distributions to the counties and school districts. Upon distribution by the state to the counties and school districts, the money from the fund belongs to the counties and school districts. Craig v. People in Interest of Hazard, 89 Colo. 139, 144-45, 299 P. 1064, 1066 (1931). [emphasis added]

The court similarly rejected claims of a violation of Article X, Section 15 (“Local Control”):

Further, the provision does not relate to instruction in private schools. As discussed above, participating private schools retain their character as private, not public, schools. It follows that article IX, section 15 does not apply to the CSP.

The court directed a significant amount of attention to plaintiffs claims that the CSP violated constitutional provisions restricting state support of religious institutions – and likewise rejected those claims:

The Colorado Constitution contains a number of provisions addressing the relationship between state government and citizens, on the one hand, and religion generally and religious institutions, on the other hand. Some of these provisions pertain to support for religion and religious institutions. Four are at issue here: article II, section 4; article V, section 34;12 and article IX, sections 7 and 8.

Based on analysis of the Colorado constitutional language alone, the court determined

we conclude that the CSP does not violate any of the subject provisions.

In order:

1. Article II, § 4 – Required Attendance or Support

Citing a similar grant program for higher education, since the CSP was “designed for the benefit of the student, not the educational institution” and “is available to all District students and to any private school which meets the neutral eligibility criteria” it did not violate the constitutional prohibition on state support of religious institutions.  The court further noted that inquiries into “the degree to which religious tenets and beliefs are included in participating private schools’ educational programs – is no longer constitutionally permissible” and, “Doing so violates the First Amendment,” concluding, “Simply put, a government may not choose among eligible institutions “on the basis of intrusive judgments regarding contested questions of religious belief or practice.”

The court rejected the plaintiffs claims that the CSP “required attendance” at religious instruction on its face, stating:

the fact remains that the CSP does not compel anyone to do anything, much less attend religious services. No student is compelled to participate in the CSP or, having been accepted to participate, to attend any particular participating private school. To the extent students would attend religious services, they would do so as a result of parents’ voluntary choices. Article II, section 4 clearly does not proscribe such choices.

2. Article IX, § 7 – No Aid to Religious Organizations

The district court ruled that the CSP violates this provision essentially for the same reasons it found a violation of article II, section 4. And essentially for the same reasons we have concluded that the CSP does not violate article II, section 4, we conclude that it does not violate article IX, section 7.2

Since the CSP “is intended to benefit students and their parents, and any benefit to the participating schools is incidental…”

“Such a remote and incidental benefit does not constitute . . . aid to the institution itself within the meaning of Article IX, Section 7.”  Zelman, 536 U.S. at 652

The court noted that “The CSP is neutral toward religion,and funds make their way to private schools with religious affiliation by means of personal choices of students’ parents.”

The majority opinion even gets in a dig at the dissenting opinion on this issue:

That reasoning, which is typical of the reasoning in the cases on which the dissent relies, is flatly at odds with our supreme court’s reasoning in Americans United, in which the court deemed the neutral character of the grant programs as essentially determinative.

3. Article IX, § 8 – Religion in Public Schools

The Court of Appeals noted that “this provision plainly applies to “public educational institution[s]” and “public school[s]” and rejected the district court’s (and plaintiffs) convoluted attempts to construct a public character for the private schools within the CSP.

The district court failed sufficiently to account for the fact that attendance at any of the participating private schools is not required by the CSP; such attendance is by parental choice. Moreover, as discussed above, participation in the CSP does not transform private schools into public schools.

Finally, the court’s ruling addressed plaintiffs’ claims that other constitutional provisions were violated by the school choice program.

The Denver District court ruling held that the CSP violated the Colorado Constitution’s Article V, § 34 – Prohibited Appropriations by interpreting a payment of state funds to private schools as an “appropriation” to “entities not under absolute state control” – including entities with a religious character.  The Court of Appeals rejected the district court judge’s reasoning, noting that “[t]he district court misconstrued the provision.”

Article V, section 34 is part of article V of the Colorado Constitution, which deals with the structure and powers of the General Assembly. See, e.g., art. V, § 1(1). Article V includes two provisions dealing with appropriations, sections 32 and 34. The appropriations encompassed by those sections clearly are appropriations by the General Assembly itself.

Since the funds are actually allocated by the school district, NOT the state directly,

No such disbursement would occur under the CSP. The General Assembly appropriates state money for elementary and secondary education to the Colorado Department of Education, which in turn distributes it to local school districts in the form of total per pupil revenue. At that point, ownership of the funds passes to the local school districts. Craig, 89 Colo. at 144-45, 299 P. at 1066; see § 22-54-104(1)(a). The District’s expenditure of funds under the CSP, therefore, does not constitute an appropriation by the General Assembly.

Since “the purpose of the [CSP] is to aid students and parents, not sectarian institutions.”

Any benefit to the participating private school is incidental, occasioned by the individual choices of students’ parents.

Conclusion:

Plaintiffs failed to carry their burden of proving the unconstitutionality of the CSP beyond a reasonable doubt, or by any other potentially applicable standard. None of them have standing to assert a claim under the Act. Accordingly, the district court’s judgment cannot stand.

The judgment is reversed, and the case is remanded to the district court for entry of judgment in defendants’ favor.

Since both sides in the case have signaled their intent to appeal if not satisfied with the verdict, the ultimate resolution of the case will fall to the Colorado Supreme Court – most likely (the wheels of justice grind slowly) in another year or more.

 Additional References:

Clear The Bench Colorado‘s analysis of oral arguments before the Colorado Court of Appeals
(20 November 2012)

For another analysis of last November’s oral arguments (with more emphasis on policy implications over legal issues), read Education Policy Analyst Ben DeGrow’s superb summary.

Click here for a comprehensive review of the Douglas County Choice Scholarship Program (including program information, video and audio interview and news clips, news and commentary highlights and links to many legal documents in the case)

Bottom Line:
The Douglas County case also touches upon important constitutional issues such the separation of powers between branches and levels of government, establishment of religion, and collection and allocation of tax dollars, but ultimately comes down to a very basic and fundamental issue:
who decides how to educate Colorado’s children?

Clear The Bench Colorado believes that the decision should be in the hands of parents – NOT in the hands of the courts.

Cases such as this 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.

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.

After two years of legislative inaction failed to repeal or roll back the unconstitutional and unpopular tax increase, the ‘FASTER’ Colorado Car Tax is being challenged in court as a violation of the Colorado state Constitution (specifically, Colorado Constitution Article X, Section 20 – Taxpayer’s Bill of Rights, TABOR).

The most recent development in the case (the ‘FASTER’ lawsuit was initially filed in May 2012) occurred last week with the filing of a ”Plaintiff’s Motion for Summary Judgment” in the case (a motion for summary judgment is filed based on the existing documentary record prior to trial claiming that all factual and legal issues can be decided in the moving party’s favor).

The Plaintiff’s Motion documents 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, on two main grounds:

A. The CBE Does Not Function As A Business Because It Has The Power To Levy A General Tax; and
B. The CBE Receives More Than Ten Percent Of Annual Revenue In Grants From CDOT
(including a $14.4M grant and the “gift” of 56 bridges from the Colorado Dep’t Of Transportation)

The Motion makes it crystal clear that the CBE “was created for the sole purpose of attempting to circumvent TABOR.”

Under FASTER, the CBE has forced Coloradans to pay “bridge safety surcharge” taxes approaching $100 million annually, without seeking the voter approval required by TABOR. See CBE 2010 Annual Report (“2010 Annual Report”) at 3.1 The CBE has also issued $300 million in new government bonds, again without a TABOR-required vote of the people.  By taking these actions without a vote of the people, defendants have violated the rights of [Coloradans] to vote on the imposition of new taxes and debt, as guaranteed by TABOR.

The Motion further documents the self-evident statement that

The CBE is not a business enterprise exempt from TABOR because it generates revenue by levying a general tax, rather than by engaging in market transactions. TABOR-exempt enterprises may not levy taxes, because “[t]he ability to levy general taxes is inconsistent with the characteristics of a business.”

The purported “business” character of the CBE is belied by how it “makes” money:

The CBE’s revenue is not derived from “market exchanges taking place in a competitive, arms-length manner,” but rather from the bridge safety surcharge—a compulsory tax collected without regard to any benefits conferred to payers.

Calling the Colorado Car Tax a “fee” is also belied by the nature of how it is levied, on whom, and who “benefits” from the charge; calling it a “fee”

does not comport with reality because the surcharge shares none of the characteristics of a fee as defined by the Colorado Supreme Court and is not levied to provide “a specific service to the persons upon whom the fee is imposed and at rates reasonably calculated based on the benefits received by such persons.”

The surcharge is therefore a tax, and not a fee.

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.