Colorado's Courts are still out of control...
Some judges continue to hold themselves above the law - but they are not beyond accountability.
DID YOU KNOW that you have the right to vote "NO" on these unjust justices (and judges at all levels)?
It's true – judges - even Supreme Court justices - in Colorado ARE accountable to the people. Every two years, voters in Colorado have the opportunity to render their judgement on a portion of our appointed judiciary in "retention" elections ("should they stay, or should they go?" What makes a good judge?) YOU, the voter, get to decide - they NEED YOUR APPROVAL to be retained on the bench.
- Unconstitutional Property Tax Increases (Mill Levy Tax Freeze)
- Unconstitutional elimination of Tax Credits & Exemptions (tobacco tax, "Dirty Dozen" taxes)
- Unconstitutionally re-defining Taxes as Fees (Colorado Car Tax)
- Unconstitutional expansion of eminent domain property seizures (Telluride Land Grab)
- Unconstitutional usurpation of legislative power (judicial redistricting, school funding)
For additional information and references, view the Evaluations of Judicial Performance page
For information on Colorado's new court-drawn Congressional and state legislative districts, view the Congressional and state legislative district maps summary
As property values in Colorado rebound from a years-long slump, many homeowners are experiencing “sticker shock” at the commensurate increase in their property taxes – leading thousands to protest recent property value appraisals across the state.
Prior to the notorious 2009 “Mill Levy Tax Freeze” ruling by the Colorado Supreme Court, an increase in property value would have been greeted positively – but, thanks to the historically high property tax rate locked in by the ruling (affirming an unconstitutional piece of legislation enacted on a partisan basis in 2007), higher property values just mean significantly higher property taxes.
In effect, nearly every homeowner (indeed, nearly all property owners) in the state of Colorado faces a significant property tax increase in the coming year due to nearly decade-old partisan piece of legislation and a Colorado Supreme Court ruling from 2009 – without the constitutionally-required vote of the people (under Colorado’s Taxpayer Bill of Rights, or ‘TABOR’ amendment).
Flashback: Audacious “Mill Levy Tax Freeze” Legislation ‘Blindsides’ Voters
The Colorado Constitution (Article X, Section 20) specifically requires “voter approval in advance for…
any new tax, tax rate increase, mill levy above that for the prior year, valuation for assessment ratio increase for a property class, or extension of an expiring tax, or a tax policy change directly causing a net tax revenue gain to any district” (Colo. Const. Art. X Section 20(4) et seq)
Historically, property tax (“Mill Levy”) rates under TABOR fluctuated up or down annually to keep property tax revenues steady (preventing increases, but also ensuring some revenue stability for districts collecting property taxes). So, as property values increased, rates decreased (and vice-versa) keeping the property tax burden stable, and predictable.
However, in 2007, Democrat Governor Bill Ritter proposed (and a Democrat-controlled state legislature approved) a “freeze” in property tax rates during a period in which property values were just beginning to recover from an historic slump (and thus, locking in historically high tax rates going forward).
In the first full year the legislation was in effect, the state collected an additional ‘windfall’ revenue gain of $117 Million – with more to come.
The law was (initially successfully) challenged in court – with Denver District Court Judge Cristina Habas ruling on 30 May 2008 that the legislation violated the Colorado Constitution (specifically, the requirement that any tax increase or “tax policy change directly causing a net tax revenue gain” first gain voter approval).
Undeterred – possibly knowing that “the fix was in” – Governor Ritter and Attorney General John Suthers appealed the District Court ruling to the Colorado Supreme Court. In an astonishingly rapid turnaround, the Colorado Supreme Court (in a tortuously-argued 4-3 ruling written by Chief Justice Mary Mullarkey issued on 16 March 2009) reversed the lower court ruling and upheld the constitutionality of the “Mill Levy Tax Freeze” legislation, locking in perpetual property tax increases for Colorado.
Mullarkey, living up to her name, based her ruling on time-travel, mind-reading, or both: declaring that some hundred or so “de-Brucing” votes in individual districts years earlier on completely separate local tax revenue issues in the 1990’s constituted the required “voter approval in advance” for the 2007 state legislation – despite the fact that voters in those districts were explicitly told that their votes on those local issues would not trigger future tax increases:
When a large majority of school districts in the 1990s asked voters if they could keep all of the tax revenue they were then collecting rather than return surpluses under the Taxpayer’s Bill of Rights, they were careful to assure homeowners that the change would not trigger a long-term escalation in property taxes.
Absolutely not, district officials promised. As the assessed value of property continued to rise, they added, mill levies would tick downward as they had before.
Those officials had every reason to believe they were telling the truth, too, since literally no expert contradicted them. To the contrary. The state repeatedly reinforced the same position. (Denver Post Editorial, School bill is a double cross, 2 May 2009)
The Mullarkey court also ignored the defeat of a nearly-identical measure to freeze Colorado’s mill levy tax rates (Amendment 32) in 2003, clearly expressing the voter’s disapproval of the rate-freeze scheme later enacted by legislative fiat and the Colorado Supreme Court’s imprimatur.
As property taxes inexorably increase with recovering property valuations – irrespective of whether the owners intend to sell their homes – there is literally no one to blame or hold accountable remaining in office facing a vote (three out of four of the ruling Mullarkey Majority, led by Chief Justice Mary Mullarkey herself, have already left office; the last of the Mullarkey Majority in this case, current Chief Justice Nancy Rice, will retire before again facing voters in a retention election). The policy, however, lives on, as the tax rate “freeze” actually locks in additional property tax increases (“an escalator tied to inflating housing values”) in future years that will outpace growth in personal earnings (hitting those on fixed incomes especially hard).
Nevertheless, property taxes (and property tax revenues) will continue to ratchet upwards, with no vote – thanks primarily to the Colorado Supreme Court.
- Mill Levy Tax Freeze Executive Summary (with links/references)
- 08SA216 Mill Levy Tax Freeze Colorado Supreme Court ruling, 16 March 2009
- 07CV12064 Mill Levy Tax Freeze Denver District Court ruling, 30 May 2008
- School bill is a double cross, Denver Post Editorial 2 May 2009
- Voters Blindsided by Court, Denver Post Editorial 17 March 2009
Since the founding of Clear The Bench Colorado – the state’s only active judicial accountability organization, and only consistently reliable source of information on the state judicial branch – six years ago, spearheading a “do not retain” campaign in 2010 against the then-reigning “Mullarkey Majority” on the state supreme court, both supporters and opponents of judicial accountability have speculated on CTBC’s impact on judicial retention rates in Colorado elections.
Recently, a meeting of the “official” State Commission of Judicial Performance discussed the “numbers and percentages of retained judges over the years.” Deputy Director Daniel Souza, explaining a few of the dips in retention rates in recent years, attributed these to the “Matt Arnold Syndrome.” Interestingly, although the Commission has chartered several studies and surveys on judicial retention rates in Colorado elections, they have refused to release those to the public.
After failing to receive requested data from the Commission (notably, the Colorado Judicial Branch declared itself “exempt” from the Colorado Open Records Act, CORA, pursuant to the 2012 Gleason v. Judicial Watch ruling by Colorado Court of Appeals Judge Alan Loeb), Clear The Bench Colorado commissioned a study on judicial retention rates in Colorado over the past decade – and the results are quite interesting.
The numbers do speak for themselves. From 2002-2008, the average retention vote for a statewide judge (Appeals or Supreme Court) was 71.72%. Since the founding of Clear The Bench Colorado in 2009, the average statewide retention vote has been 67.60%, with the most significant change (63.44%) happening in the year of Clear The Bench Colorado’s greatest activity and media exposure, 2010. (see Tables 1 & 3)
Clear The Bench Colorado was most active in 2010, with some significant earned media attention and a statewide campaign focused in particular against four (then three, when Chief Justice Mullarkey chose to “retire” rather than face the voters) Supreme Court Justices who regularly violated the Colorado Constitution. Clear The Bench Colorado traveled the state educating voters on judicial retention elections. Additionally, 2010 saw a well-funded counter campaign against Clear The Bench Colorado, which has been dormant after facing legal challenges for violating the state’s campaign finance laws. 2010 produced an average 12.85% reduction in Supreme Court retention votes from 2008 and previous year averages.
Clear The Bench Colorado positioned itself in 2011 as the only consistent source on Colorado’s Redistricting and Reapportionment process, actively engaging in both testifying on proposals and reporting on the process from beginning to end. Clear The Bench Colorado began reporting on Colorado judicial cases and related stories in 2009, and built on that wide reach and recognition in 2011. Clear The Bench Colorado continues to be the only news source on many cases and judicial issues in Colorado.
In 2012, Clear The Bench Colorado was less active in travelling to speak with the electorate across the state. 2012 saw a shift in the focus of the organization’s approach, from specific recommendations (“yes” or “no” campaign, as in 2010) to a rating without any specific recommendation (ranking votes in cases for/against the Constitution, as in 2012 and 2014). 2012 saw a 2.09% reduction in average Supreme Court retention votes from 2008.
2014 again saw an increase in earned media attention and education on the retention election issue across the state. 2014 also saw two (unrelated to Clear The Bench Colorado) ballot initiatives focused on judicial retention and accountability, both of which failed to make the ballot (but likely helped create an electoral atmosphere that paid more attention to judicial elections than in 2012). 2014 had a 5.28% reduction in average Supreme Court retention votes over 2008.
Clear The Bench Colorado‘s recommendations (2010) and ratings (2012/2014) have had some noticeable impact on election results, reducing the statewide retention vote average by 4.12% overall, utilizing limited resources and manpower.
Additionally, years in which Clear The Bench Colorado was more active (2010, 2014) have a more noticeable impact than years with less publicity (2012), particularly with the Supremes.
Clear The Bench Colorado’s anticipated future participation in education and ratings for Colorado’s judiciary will likely continue the trend of a more informed Colorado electorate, as reflected in the election results.
The 18th Judicial District announced last week the impending retirement of District Court Judge J. Mark Hannen, effective 1 July 2015.
Judge Hannen has served as a district court judge since his appointment in 2002; prior to his appointment to the bench, he served as the Douglas County Attorney since 1989, after a number of years in private practice as an attorney.
The court’s official retirement announcement (and notice of impending vacancy) was released on 6 April, and also gave notice of the schedule for reviewing applications and nominations:
The Eighteenth Judicial District Nominating Commission will meet on May 20, 2015, at the Arapahoe County Justice Center to interview and select nominees for appointment by the governor to the office of district judge for the Eighteenth Judicial District (Arapahoe, Douglas, Elbert and Lincoln counties).
Judge Hannen was last retained in office (receiving 75% “yes” votes for retention) in November 2012 (see Clear The Bench Colorado‘s “Know Your Judge” 2012 Citizen Inputs for background). Interestingly, Judge Hannen received a more divergent number of comments – some very positive, some very negative – than any other district judge on that year’s ballot.]
As announced by the court,
To be eligible for appointment to fill the vacancy, the applicant must be a qualified elector of the Eighteenth Judicial District and must have been admitted to the practice of law in Colorado for five years. The current annual salary for this position is $145,219. The initial term of office of a district judge is a provisional term of two years; thereafter, the incumbent district judge, if approved by the voters, has a term of six years.
Application forms are available from the office of the ex officio chair of the Nominating Commission, Justice Brian D. Boatright, 2 E. 14th Ave., Denver, CO 80203; and the office of the district administrator, Laurie McKager, 7325 S. Potomac St., Centennial, CO 80112.
Applications also are available on the court’s home page at http://www.courts.state.co.us/Careers/Judge.cfm
For a complete explanation of the judicial nominating process in Colorado, read:
Colorado Court of Appeals Judge James Casebolt announced last week that he would retire from the court effective 1 July 2015.
Judge Casebolt has served on the Colorado Court of Appeals for 21 years, serving as the court’s Deputy Chief Judge since 2005. Judge Casebolt also serves as a trustee and former chair of the Board of Trustees of the Public Employees Retirement Association (PERA).
The court’s official retirement announcement (and notice of impending vacancy) was released on 2 April, and also gave notice of the schedule for reviewing applications and nominations:
The Supreme Court Nominating Commission invites qualified attorneys to apply for a Colorado Court of Appeals judgeship created by the retirement of the Honorable James S. Casebolt, effective July 1, 2015. The Commission will meet May 11-12, 2015, at the Ralph L. Carr Colorado Judicial Center (2 E. 14th Ave., Denver, CO 80203) to interview applicants and select nominees for appointment by the governor.
Judge Casebolt was last retained in office (receiving 70.85% “yes” votes for retention) in November 2012 (see Clear The Bench Colorado‘s 2012 Judicial Performance Evaluations).
Judge Casebolt was widely regarded as an expert on jury selection; his “Civil Jury Selection and Pattern Voir Dire” is is a standard reference for jury screening recommended for use in Colorado courts.
As announced by the court,
To be eligible for appointment to fill a vacancy, the applicant must be a qualified elector of the State of Colorado and must have been admitted to the practice of law in Colorado for five years. The annual salary for a court of appeals judge is currently $151,463. The initial term of office of a Court of Appeals judge is a provisional term of two years. Thereafter, the incumbent judge, if retained by the voters, has a term of eight years.Application forms are available from the office of the ex-officio chair of the Nominating Commission, Chief Justice Nancy E. Rice, 2 E. 14th Ave., Denver, CO 80203; and the office of the District Administrator of any of the 22 judicial districts. Applications also are available on the court’s home page at: https://www.courts.state.co.us/Careers/Judge.cfm
Colorado’s “Merit Selection” Judicial Nominating Process
Clear The Bench Colorado marks 6th anniversary as CO’s premier judicial accountability organization, going strong
“Time flies when you’re having fun…”
Hard to believe, but it has already (only?) been 6 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, overturning unconstitutional legislation restricting petition-gathering for ballot initiatives, and (most strikingly) overturning a lower court to uphold the constitutionality of Colorado’s school funding system (the Lobato statewide school funding case, called the “SuperBowl of school funding litigation”) saving the state’s taxpayers over $1 BILLION annually (as predicted by CTBC’s analysis of the case) – a tremendously impactful win credited in large part to Clear The Bench Colorado‘s efforts to increase judicial accountability.
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)
Clear The Bench Colorado‘s successes have been noted not only in Colorado, but in other states as well; on our 5th anniversary, CTBC is finalizing arrangements to expand the brand and reach of judicial accountability to other states sharing the “judicial retention vote” model, as well as expanding our reviews of judicial performance to the county & district court level here at home.
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 six 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 few 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.
Ultimately, though – it’s worth the effort.
Colorado Supreme Court Justice Gregory Hobbs announced last week that he would retire from the court effective 31 August 2015.
The Colorado Supreme Court’s official retirement announcement (and notice of impending vacancy) was released on 19 March, and also gave notice of the schedule for reviewing applications and nominations:
The Colorado Supreme Court Nominating Commission will meet June 8 and 9, 2015, at the Ralph L. Carr Colorado Judicial Center (2 E. 14th Ave., Denver, CO 80203) to interview candidates and select nominees for appointment by the governor to the Colorado Supreme Court.
Justice Hobbs has served on the Colorado Supreme Court for 19 years; originally appointed in 1996 by Democrat Governor Roy Romer, he was last retained in office in 2008 and would have been next subject to a retention election in 2018 (Colorado Supreme Court Justice terms are for ten years, except for their first “probationary” term of 2+ years until the next election).
Justice Hobbs was widely recognized as an authority on water rights law in Colorado and nationally; so much so, in fact, that former gubernatorial candidate Scott McInnis was accused of plagiarizing a substantial portion of a “public policy study” (for which he was paid $300,000) from work previously published by Hobbs.
As announced by the court,
To be eligible for appointment to fill the vacancy, the applicant must be a qualified elector of the State of Colorado and must have been admitted to the practice of law in Colorado for five years. The current annual salary for this position is $157,710. The initial term of office of a Supreme Court justice is a provisional term of two years; thereafter, the incumbent justice, if retained by the voters, has a term of 10 years.
Application forms are available from the office of the ex officio chair of the nominating commission, Chief Justice Nancy E. Rice, or from the Supreme Court Clerk, Christopher T. Ryan, 2 E. 14th Ave. Denver, CO 80203. Applications also are available online on the court’s website.
For a complete explanation of the judicial nominating process in Colorado, read:
Colorado’s “Merit Selection” Judicial Nominating Process
Colorado Supreme Court declares disqualified Adams 12 School Board candidate “legally elected” but seat nonetheless vacant
The Colorado Supreme Court, in what appears to be a classic case of legal sophistry, held that a candidate disqualified from running for a school board elected office was nonetheless “legally elected” to that office – but, because she was “unqualified to serve” the seat is therefore vacant (and must be filled by a vacancy board appointment instead of by the legally qualified candidate who also ran).
In reviewing the court’s ruling, the appropriate response would seem to be
The court’s ruling – No. 14SA235, Figueroa v. Speers – Election Law – Candidate Elected But Unqualified to Serve – held that “the unqualified candidate was legally elected despite not meeting the residency requirement” but that since “the candidate who was legally elected is not qualified to serve in the office for which she was elected, the supreme court upholds the trial court’s declaration of a vacancy in the contested office.”
So, in plain English – a candidate legally disqualified from running for office was “legally elected” but cannot take office because she was legally disqualified.
The court hangs its ruling on the fact that “although Speers was unqualified to serve, no court declared her to be unqualified until after voting had been completed.” [Emphasis added]
However, as noted in both the district court election challenge trial and in arguments before the Colorado Supreme Court itself, candidate Amy Speers was discovered to be ineligible only days before the election – and, despite notice, refused to withdraw her candidacy, as foreseen by law – and thus no court could possibly have issued any declaration prior to the election.
In fact, Speers’ candidacy was not only disqualified – but, arguably, perjurious, since she submitted a signed affidavit affirming that she “met all the requisite qualifications to hold the office.”
However, since the “sufficiency” of her affidavit was not challenged “within the respective five-day windows under section 1-4-909(1), C.R.S. (2014) (allowing five days to challenge the sufficiency of a petition before certification), or section 1-4-501(3), C.R.S. (2014) (allowing five additional days to challenge the certification of a candidate to the ballot)” and was not caught by the certifying officer, her certification to the ballot was held to be valid “despite Speers’s unwitting failure to meet the residency requirement.” [Ruling at 3]
The dizziness only gets better.
Ironically, the court noted that the certifying authority [Mullins] promptly requested that Speers withdraw from the race, which Speers refused to do. Mullins then notified the relevant county clerks to withdraw Speers’s name, but the clerks similarly refused to do so. Nobody involved requested judicial intervention of any kind prior to the election, and voting proceeded with both candidates remaining on the ballot.” [Ibid]
Ironic – because the court itself struck down the only attempt at “judicial intervention” in the form of an emergency rule issued by the Secretary of State in the Hanlen v. Gessler case, which held that “questions regarding a certified candidate’s eligibility [must] be determined by a court, not an election official.”
The court’s ruling is troubling on another level, as well. By asserting sole authority to act as the arbiter of certifying candidate eligibility (rather than election officials, who have that duty in their job description) the court places itself squarely in the midst of the political process. The increasing, and willful, self-politicization of the state’s judicial branch is (or should be) deeply troubling to anyone concerned with fair electoral process.
Although the court was at least consistent in voiding the election post-hoc for the ineligible candidate –
recognizing that a legally elected person is entitled to take office only “upon proper qualification” and instructing the court to set aside an election and declare a vacancy in the contested office if no person was legally elected [Ruling at 10]
it appears to be inconsistent in defining just what constitutes “legally elected” to (or even qualified to run for) public office.
- Can Ineligible Candidates be “Duly Elected” to Public Office?
The court apparently rejected the argument that “a person cannot be a “duly nominated” candidate or a “duly elected” officer if the individual does not meet the qualifications for office. ”
This argument is important not only because it would eliminate the election controversy “ab initio” – since
“a run for office by an unqualified individual is void rather than voidable. It should be considered “a nullity, invalid ab initio, or from the beginning, for any purpose.” Delsas v. Centex Home Equity Co., 186 P.3d 141, 144 (Colo. App. 2008). (SOS Appeal for Review at 28)
It is also important because it would “prevent use of sham candidates” – popular figures ineligible to actually run for office serving as stand-in vote-getters.
Did the court’s ruling open the door for “sham candidates” to disrupt future elections?
Only time will tell.
Read more about the Adams-12 School Board Candidate Eligibility case:
- Contested School Board Election “Win” by Disqualified Candidate Argued Before Colorado Supreme Court
- Disqualified Adams County School Board candidate awarded “win” after District Court ruling; Secretary of State appeals
- Colorado Supreme Court hears arguments in Adams 12 election case, Denver Post 29 January 2014
- Adams 12 candidate’s votes must be counted, judge rules (Broomfield Enterprise, 19 Nov 2013)
The Supreme Court of the United States (SCOTUS) unanimously overturned a 10th Circuit ruling, allowing a lawsuit against Colorado’s “Amazon Tax” to resume proceedings in federal court.
The Supreme Court ruling (Direct Marketing Association v. Brohl, 13-1032) overturns a 10th Circuit Court decision that reversed a ruling by a federal trial court that had declared Colorado’s “Amazon Tax” illegal. The 10th Circuit ruling had held that federal courts had no jurisdiction over state tax issues, a position rejected by the recent Supreme Court ruling due to the tax being applied to interstate commerce.
The 2010 internet sales tax (or “Amazon Tax” – House Bill 10-1193: Sales Tax Out of State Retailers (Pommer/Heath) was among the worst of the “Dirty Dozen” tax increases from both a constitutional and policy perspective, since previous legal precedent had already held that a state’s attempts to regulate commerce in other states (as this tax attempted to do) ran afoul of the U.S. Constitution.
Clear The Bench Colorado was at the forefront of the opposition to the unconstitutional “Dirty Dozen” tax increases passed by the Colorado Legislature in 2010 – testifying before the House and Senate Finance Committees that the tax increases were violations of the rights of Colorado citizens under the Colorado Constitution (Article X, Section 20: Taxpayers Bill of Rights) to be consulted (by vote) before being subjected to more or higher taxes, despite an interpretation of the Colorado Supreme Court ruling in the “Mill Levy Tax Freeze” case that the requirement to ask first could be ignored.
Clear The Bench Colorado warned the state legislature that the tax was guaranteed to be challenged in court, and would likely lose – a prediction that was affirmed two years later when a federal court ruled to strike down Colorado’s “Amazon Tax” in 2012. The 10th Circuit, on appeal, held that federal courts had no jurisdiction over state tax matters – which the Supreme Court of the United States rejected and reversed.
The unconstitutional tax increase has never collected a dime in revenue, as it was swiftly suspended by the courts – but it has cost the state (and Colorado taxpayers) tens, if not hundreds, of thousands of dollars in litigation costs and attorneys fees. Naturally, the legislators who have imposed these costs on Colorado have incurred no liability for their unconstitutional legislation.
Passing on such exorbitant legal costs to the taxpayers or consumers seems to be a common predilection of pandering politicians – who should be held accountable, at the ballot box if not otherwise.
The Colorado Supreme Court heard oral arguments last month (10 December 2014) on a challenge to the constitutionality of the Douglas County School Choice program, in what could be a precedent-setting case for school choice nationwide. Last month’s oral arguments took place just over two years after the Colorado Court of Appeals heard similar arguments in the preceding case, which resulted in an appellate court ruling that upheld the constitutionality of the Douglas County “Choice Scholarship Program” (Colorado Court of Appeals Nos. 11CA1856/11CA1857, “Taxpayers for Public Education v. Douglas County Board of Education”) issued on 28 February 2013, that reversed a lower court ruling that had blocked implementation of the program in August 2011.
The legal battle over the constitutionality of the Douglas County “Choice Scholarship Program” – which allows K-12 students who reside in the Douglas County School District and have been enrolled in a Douglas County public school for at least one year to apply for a Choice Scholarship to attend the private or charter school of their choice – has gained national attention as the “ground zero” in the fight for school choice across the country.
Opponents of the school choice program (ACLU, Americans United for the Separation of Church and State, various front groups and individuals affiliated with local, state, and national teacher’s union and other special-interest groups et al) have argued that the school choice voucher program violated the state School Finance Act and Colorado Constitution provisions prohibiting ”aid to or support of religion and religious organizations” with taxpayer funds. The Court of Appeals resoundingly rejected those arguments, relying not only on the clear language of the Colorado Constitution, but also upon relevant Supreme Court of the United States precedent in a similar case (Zelman v. Simmons-Harris, 2002), holding that funds disbursed in such programs “benefit students and their parents, and any benefit to the participating schools is incidental…”
The appeal to the Colorado Supreme Court “reframed” several issues and again attempted to re-argue the “benefit to religious organizations” claim previously rejected by the Court of Appeals. The Colorado Supreme Court granted certiorari (agreed to review) six distinct issues or arguments advanced by the plaintiffs:
- Standing to bring private action under the School Finance Act
- Challenging the use of a “Charter School” administrative entity to channel CSP funds
- Standard for challenging constitutionality (“presumptive” or “beyond reasonable doubt”)
- “Diversion of funds” to schools controlled by churches or religious organizations
- “Compelled-support” or “compelled-attendance” at religious services in some CSP-grant schools
- Requirement for titular “charter/public” students to receive religious instruction in some schools
- Standing to bring private action under the School Finance Act
The Colorado Court of Appeals had held that “[t]here 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.” Appellants conceded that the statutory language conferred responsibility for enforcement on the State Board of Education, but argued “collusion” between the SBE and the Douglas County School Board (because the SBE had responded to a DCSB request to review and offer an advisory opinion on the Choice Scholarship Program prior to implementation – despite the fact that offering such review and opinion is precisely one of the functions assigned to the SBE). Appellants argued that because the State Board of Education did not act to challenge the program, the right of enforcement devolved to private parties – a position characterized as “backup surrogate standing?” by a visibly skeptical Justice Hobbs (generally considered part of the “liberal” wing of the court). Remaining justices also appeared skeptical about any “private right of enforcement.”
Prognosis: Based on the arguments presented, questions by the justices, case filings, and previous rulings, Appellants seem unlikely to prevail on the “standing” issue – which could derail the entire appeal, preserving the lower court (Colorado Court of Appeals) ruling in favor of school choice.
- Challenging the use of a “Charter School” administrative entity to channel CSP funds
Appellants asserted that the CSP’s “Choice Charter School” – which the Douglas County School Board conceded was an “administrative convenience” – is invalid as a mechanism for funding student enrollment and attendance at other schools participating in the choice scholarship program, calling it a “sham” and a “false front” to enable public education funds to go to private partner schools. Appellants claimed that the “Choice Charter School” failed to meet requirements of the School Finance Act and Charter School Act, and “the program therefore fails.”
Appellees countered that the construction of the program followed the rules and regulations promulgated by the State Board of Education, and the choice of how to set up the program fell under the purview of the elected school board. Since enforcement of the rules is the “exclusive province” of the State Board of Education, there is no “private right of enforcement” on this claim, either.
Prognosis: Again, given that regulatory responsibility and enforcement authority seems to lie exclusively with the SBE, which has accepted the CSP as compliant with legal requirements, this claim is likely to fail and the Colorado Supreme Court is likely to uphold the judgment of the Court of Appeals.
- “Diversion of funds” to schools controlled by churches or religious organizations
Appellants repeatedly referred to “depletion of resources” available for “public education” – an “export” of funds from Douglas County Schools “into the hands of private parties.” Appellants maintained that the SFA and Colo. Constitution contain an “absolute prohibition on the use of funds for anything but public education.” In sum, “public tax dollars can’t fund choice of parents to have their kids attend religious schools.”
Appellees countered that education funds are primarily to benefit students, not institutions – and that public education funding is tied to (and follows) students, per the SFA. Appellees noted that funds are not diverted from any school district, and that the amounts available to parents/kids participating in the choice scholarship program are actually less than the “per-pupil” formula allows – which means that not only is there no diminution of funds available for “free public education” but that funds left available actually increase.
Prognosis: given the math, this is probably the weakest claim advanced in the appeal, and likely to fail.
- Restrictions on “public funding” of schools with religious characteristics or under control of religious organizations (“No Aid” clauses of Colorado Constitution)
Appellants argued a “specific prohibition” of any aid or funding to schools with a religious character, including “teaching sectarian tenets” or religious institutional control. These arguments mirrored those previously advanced before the Colorado Court of Appeals, and rejected by that court.
Appellees countered that other programs use public funds for private schools, including those of religious character, at various levels (such as the “Colorado Opportunity Fund” college scholarships). Noting that the program is neutral with respect to religion and for a public purpose (education), it provides “no aid to religious institutions” but is for the benefit of students. Appellees noted federal jurisprudence that singling out – for inclusion or exclusion – programs on the basis of religion violates both the Freedom of Exercise and Equal Protection clauses of the U.S. Constitution; one “can’t exclude religious groups from educational aid programs otherwise available to the public” (Everson v. BOE, 1947). Moreover, since the choice of which school to attend using the “choice scholarship” is solely at the discretion of the parent, “the link between public funds and schools is broken if made by an individual’s choice.” (per the 2002 U.S. Supreme Court Zelman case) Ultimately, the program enables public students making a private choice – a right secured under both the Colorado and U.S. Constitution.
Prognosis: Since little new argument on the “support to religious institutions” issue was advanced before the Colorado Supreme Court that differed substantially from arguments before the Colorado Court of Appeals, and since the appeals court ruling dealt with the issues so comprehensively in rejecting those arguments in their February 2013 ruling, it appears likely that the lower court’s ruling in this regard will be affirmed.
It is interesting to note that the very definition of what constitutes “public” education arose multiple times, in questions from several justices. In particular, several justices seemed to recognize (and the appellees also pointed out) that there is an ongoing “paradigm shift” and major changes in the delivery of education. Several justices seemed at least willing to consider that the “old model of schools” is no long the only, or even dominant, option. Some asked, concerning delivery of “public” education, if it’s necessary that “public” education MUST be in government schools?
The Colorado Supreme Court’s ruling in this case may go a long way towards answering that question.
- Full Audio of the hearing is made available by the Colorado Supreme Court
- 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)
- CTBC Analysis of Oral Arguments in Douglas County School Choice Voucher Program at Colorado Court of Appeals
- School Choice Goes to Court: The Year’s Most Important Lawsuits (12/24/14)
- Colorado justices see potential ‘paradigm shift’ in school voucher case (Colorado Independent, 12/12/14)
- Colorado’s high court hears school voucher case (Colorado Springs Gazette, 12/10/14)
- Colorado Court of Appeals reverses lower court, upholds constitutionality of Douglas County School Choice program
Colorado’s “Official” Judicial Performance Evaluation System Lacks Transparency, Covers Up a Politicized Judiciary
Colorado’s “official” system of judicial performance evaluations is, contra the propaganda propagated by the system’s apologists, among the least transparent and opaque such processes in the nation, and serves to cover up (and perpetuate) existing politicization of the state’s third branch of government.
Far from being a “model” or “one of the best” judicial review systems, Colorado’s program (administered by the Colorado Office of Judicial Performance Evaluation (COJPE), a government agency) is a fraud foisted upon the citizens and voters of Colorado (at significant taxpayer expense).
Colorado’s “Official” Judicial Performance Evaluation System Explained
Colorado’s courts are administered, at the trial court level, under 22 judicial districts (most, although not all of which include multiple counties). Each judicial district has a review commission consisting of 10 political appointees (6 non-attorneys and 4 attorneys). As noted on the COJPE website,
Appointments to the commission are made by the Chief Justice, Governor, President of the Senate, and Speaker of the House.
The state’s appellate courts (Colorado Court of Appeals, Colorado Supreme Court) are “reviewed” by the “State Commission of Judicial Performance” – another 10 political appointees (also 6 non-attorneys and 4 attorneys) appointed by the Chief Justice, Governor, President of the Senate, and Speaker of the House.
The commissions supposedly gather information from a number of sources – interviews, observations, and (primarily) survey results – to generate “reviews” of judges published as a “narrative” beginning with an “official recommendation” on whether the rated judge should be retained in office (notably, not once in the entire decades-long history of the state review commissions has there been a “do not retain” recommendation for a judge at the statewide, appellate-court level; and “retain” recommendations account for over 98% of judges reviewed at the district/county levels).
Why do we have political appointees telling Coloradans how to vote?
Partisan Bias on Review Commissions?
It should be noted that, in contrast to the judicial nominating commissions and the process for nominating appointees to judicial office, which includes a legal requirement for partisan balance among members and for nominations, judicial performance evaluation commissions have NO requirement for partisan balance, and are often (usually?) dominated by members of a single political party.
Unsurprisingly, the 2014 “State Commission of Judicial Performance” is completely dominated by Democrats – ALL of the attorney members, and all but one of the non-attorney members (who is officially unaffiliated) are not only Democrats, but major Democrat contributors (first and foremost, naturally, to Colorado’s Governor Hickenlooper himself):
- Bradley A. Levin, Chair (Democrat; contributor to Hickenlooper, several Democrat legislative candidates – McLachlan, Kagan, et al – and the Colorado Trial Lawyers Association PAC)
- Christina M. Habas (former Denver District Court judge; Democrat, contributor to Dem Don Quick for AG and left-leaning Colorado Trial Lawyers Association Small Donor Committee)
- Heather R. Hanneman (Democrat; contributor to Hickenlooper, Don Quick for AG, One Colorado, CTLA among others)
- Edward F. Harvey (Democrat; Hickenlooper contributor)
- David A. Kaplan (Democrat; contributor to Hickenlooper, Don Quick for AG among others)
- Michael J. Maday (Democrat; former Dem SD11 legislative candidate, contributor to numerous Democrat candidates, incl. Joe Neguse for Secretary of State, Mike Merrifield, Pete Lee, Tony Exum, and others.
- Joe D. Martinez (Democrat; Hickenlooper contributor)
- Roger D. Sherman (Democrat; Hickenlooper contributor; gave over $28,000 to Democrat candidates and Democrat-affiliated groups)
- William E. Sobesky (unaffiliated, but last major contribution was for Mike Feeley (Democrat for governor)
- Roland Williams (Democrat; contributes primarily to local Democrat party organization)
The partisan makeup of the majority of Colorado’s 22 judicial performance review commissions is similarly unbalanced.
“Survey Says!” Methodology Suspect, Statistically Invalid
The commissions rely heavily on surveys distributed to a selected subset of “attorneys who had cases before the judge, other judges, court staff, jurors and court users.” In other words, the surveys are overwhelmingly distributed to people with a vested interest in the existing system.
The lack of statistical validity for survey results as a method of analysis (due small sample size, rate of return, even sample bias) has been noted by numerous sources – including the commissions themselves. The lack of statistical validity is particularly acute at the appellate court level – as even some of the major apologists for the current system have also admitted.
The survey sampling bias can also be politically manipulated by the commissions – as appears to be the case in one of this year’s (exceedingly rare) “do not retain” recommendations from the 20th Judicial District (Boulder County) commission “reviewing” District Court Judge Karolyn Moore.
As noted in a recent Daily Camera article, “Flaw in system led to ‘do not retain’ recommendation for Boulder County judge”
- an examination of the report shows that of the 297 attorneys to receive the confidential surveys, none was classified as a prosecutor. The report showed 91 criminal defense attorneys turned in surveys, along with 19 civil attorneys. Two respondents were classified as “other attorneys criminal.”
There is no other plausible explanation for such “sampling error” than deliberate manipulation of the surveys.
Other criticisms of the “survey methodology” have come from across the political spectrum; a recent Boulder Weekly article (“Bench Bias“) raises the specter of institutionalized “gender bias” in the review commissions (the “old-boy network” in action?)
A Durango Herald article (“When grading judges isn’t blind“) also alleged bias in the commission reviews.
Whether the bias(es) are of political, gender, racial, regional, or any other origin – the lack of transparency in the current system serves to cover up and perpetuate such problems.
Reform, Accountability, Transparency to DE-politicize Colorado Courts
Apologists for the current, non-transparent and unaccountable state-sponsored system support a continued cover-up of the existing politicization of Colorado’s judiciary. They are complicit in a fraud perpetuated on the citizens of Colorado.
In contrast, Clear The Bench Colorado‘s approach supports substantive evaluations of judicial performance based on documented reviews of their primary “work product” (the rated judge’s written opinions, which are posted as a reference for readers to review) – a vote for transparency and accountability.
Don’t be “tricked” by the incestuous Legal Establishment apologists – and the partisan political appointee “review” commissions they are complicit in foisting on Colorado voters.
There is a clear public need and demand for substantive, independent evaluations of judicial performance – but, just as clearly, the “official” COJPE “rubberstamp reviews” and consistent recommendations to reflexively retain incumbents (99% overall, and a staggering 100% “retain” recommendation record at the appellate court level) is NOT a credible solution.
Clear The Bench Colorado has shown the way towards a method of substantive, informative, well-researched and extensively documented evaluations of judicial performance – a model that could (and perhaps should) be emulated nationwide.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
Ultimately, though – it’s worth the effort.