Alex Martinez
The Colorado Car Tax – er, ‘FASTER’ “vehicle registration fee” increase – challenged in court as violation of state Constitution
The Colorado Car Tax (er, “vehicle registration fee”) increase passed in 2009 (SB108, the so-called “FASTER” bill) is quite possibly THE most unpopular tax increase in Colorado history – made all the more repugnant by how it became law (exploiting a 2008 Colorado Supreme Court ruling which declared that “fees” don’t count as “taxes” to circumvent the constitutional requirement (under Colorado Constitution Article X, Section 20 – Taxpayer’s Bill of Rights, a.k.a. TABOR) to receive prior voter approval for any ‘policy change resulting in net revenue gain’ to the state).
After two years of legislative inaction failed to repeal or roll back the unconstitutional and unpopular tax increase, the ‘FASTER’ Colorado Car Tax 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).
Despite being a central issue in the 2010 elections (Democrat Governor Bill Ritter chose not to seek re-election in large part because of the tax increase’s unpopularity; Senate sponsor Dan Gibbs also chose not to seek re-election; and House Sponsor Joe Rice was defeated by now-Representative Kathleen Conti largely on the strength of her campaigning on the Car Tax issue), the legislature has failed to overturn the clearly unconstitutional tax (or address other unconstitutional aspects of the legislation, including establishment of unaccountable “government-owned enterprises” to administer the tax – er, “fee” – collections and revenues).
It has long been clear that the proper venue for overturning this highly unpopular, regressive, and unconstitutional tax increase is NOT via the legislature (which is unwilling or unable to act) but via a court challenge. Unfortunately, as long as the actively anti-TABOR “Mullarkey Majority” (and its successors) ruled the Colorado Supreme Court, prospects for a reasonable hearing on the merits (and interpretation actually based on the Colorado Constitution, as written) have been bleak.
However, due to recent changes in the composition of the state’s highest court (blatantly partisan and anti-TABOR Chief Justice Mary Mullarkey quit rather than face voters in 2010 and Mullarkey ally Justice Alex Martinez quit the court to take a Denver city job last Fall), along with the impending retirement of Mullarkey’s heir as Chief Justice (Michael Bender), a lawsuit challenging the ‘FASTER’ Colorado Car Tax (er, “vehicle registration fee”) increase might now have a chance.
Apparently judging the time to be ripe, the TABOR Foundation – represented by the Mountain States Legal Foundation – filed suit today (21 May 2012) challenging the constitutionality of the 2009 ‘FASTER’ Colorado Car Tax. From the organization’s press release:
“In clear violation of TABOR, the General Assembly enacted and CDOT implemented a scheme to levy taxes and raise revenues without a vote of the people of Colorado,” William Perry Pendley of the Mountain States Legal Foundation, said in a statement.
The lawsuit targets not only the over $100 Million in (unconstitutionally-imposed) new taxes levied, but also the $300 million in new government bonds imposed by the Colorado Bridge Enterprise (one of the constitutionally dubious quasi-government “enterprises” established under the ‘FASTER’ law).
The Foundation seeks declaratory and injunctive relief and an order requiring refund of all revenues collected, along with the payment of interest, as required by TABOR.
The TABOR Foundation’s lawsuit highlights the fact that legislative action alone is frequently inadequate in preserving rights and freedoms – bad laws can (and should) be struck down by citizens (working alone or in groups) defending their rights in court. The fact that it took years before the conditions were conducive to a court challenge also highlights the fact that elections to legislative or executive office are not the only votes that matter – underlining the critical importance of the judicial accountability movement spearheaded beginning in 2009 by Clear The Bench Colorado.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Colorado Governor Hickenlooper announces state will appeal Denver judge’s ruling on Lobato school-funding lawsuit
Colorado Governor John Hickenlooper officially announced Wednesday* that the state would appeal Denver District Court Judge Sheila Rappaport’s ruling that the state’s education funding is not “thorough and uniform” as referenced in constitutional language (Colorado Constitution, Article IX, Section 2). Rappaport’s 183-page ruling also paved the way for court-ordered tax increases, stating:
“It is also apparent that increased funding will be required.”
Rappaport’s 183-page opus spends a mere 10 pages even purporting to address issues of law (the remainder is dedicated to a lengthy exposition of the judge’s views on the educational system and her personal opinions on the worthiness of various witnesses) and fails to address how to enforce funding increases in compliance with other constitutional provisions. As the governor’s statement noted,
“The judge’s decision provided little practical guidance on how the state should fund a ‘thorough and uniform’ system of public education,” said Hickenlooper. ”Moreover, while the judge focused on the inadequacy of state funding, she did not reconcile this issue with other very relevant provisions of the Constitution, including the Taxpayer’s Bill of Rights, the Gallagher Amendment and Amendment 23.”
A Denver Post article (“Gov. Hickenlooper to appeal Lobato education-funding decision to state Supreme Court; state board of education delays its own decision“) also noted the budgetary implications:
The lawsuit seeks no specific sum of money, but plaintiffs have pointed to studies estimating the state is underfunding education by as much as $4 billion.
The state now spends more than 40 percent, or $3.2 billion in the 2010-11 fiscal year that ended in June, of its almost $7 billion general fund on K-12 schools.
Coloradans in November by a two-to-one margin shot down a $3 billion tax increase measure for schools.
Governor Hickenlooper and Attorney General Suthers had earlier warned of “devastating” consequences for the state if the Lobato plaintiffs were successful in forcing additional school spending.
Although the lawsuit (and Rappaport’s ruling) is likely to be overturned (thanks to the departure of former Chief Justice Mullarkey and the more recent resignation of Justice Alex Martinez, 2 of the original 4 votes keeping the Lobato lawsuit alive in 2009 are now gone), appealing the case will cost Colorado taxpayers plenty:
[Mike] Saccone [spokesman for the attorney general's office] said the legislature has appropriated up to $3.5 million to defend the state against the suit.
This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).
If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.
The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.
Read more about the Lobato school funding case in these articles:
- “Judicial Overreach” (Pueblo Chieftain editorial, 14 December 2011)
- “Judge Sets Constitution Aside in School Finance Ruling” (Education Policy Center, 12 December 2011)
- “Victory for Lobato Plaintiffs” (Education News Colorado, 9 December 2011)
- “Lobato case primer” (Education News Colorado, 11 August 2011)
- “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
- “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)
- “Lobato education-funding budget-buster aided & abetted by Colorado Supreme Court” (8 August 2011)
The Attorney General’s office has also compiled a full list of key pleadings and court decisions in the Lobato case.
Cases such as Lobato – particularly Rappaport’s biased ruling – highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government. Our courts have an important – even vital – role to play in our society and system of government. This is not it.
* Governor Hickenlooper responded to a question at a 13 December 2011 town hall event about Lobato that he was leaning towards an appeal, since the court’s ruling “clearly violated TABOR” and Colorado voters had recently rejected a tax increase purportedly targeted for education funding (Prop. 103)
The Constitution says we can’t raise taxes without a vote of the people – the people just voted specifically on more revenues for education, and the people pretty clearly voted 2-to-1 that this was a bad idea. So how can the courts say that we should do it?
Governor Hickenlooper clearly disagreed with Rappaport’s ruling, and clearly expects to win on appeal, since the alternative would plunge the state into a constitutional crisis:
“Let’s say that the Supreme Court agrees with the district court – if that’s the case, then we’ve got the Constitution versus the Supreme Court.”
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Colorado Supreme Court approves 40% tax increase
Although Colorado voters decisively repudiated a recent attempt to raise taxes at the ballot box this week (the “Proposition 103″ tax increase initiative, which at least did seek “voter approval in advance” as required by the Colorado Constitution, Article X, Section 20 – the ‘Taxpayer’s Bill of Rights’), on the day before votes were tallied, the Colorado Supreme Court approved what may have been the largest (percentage) tax increase in the history of Colorado – increasing a severance tax (on energy production) by over 40%.
Sadly, this latest ruling only continues a pattern of judicial assault on the rights of Colorado taxpayers that is both politically motivated (the court’s majority has frequently expressed antipathy towards the Colorado Constitution’s Article X, Section 20 – the ‘Taxpayer’s Bill of Rights’ – despite their oath to support and uphold the entire Constitution, not just the parts they like) and entirely predictable. (Indeed, Clear The Bench Colorado forecast the court’s decision over a year ago in this article):
Colorado Supreme Court prepares additional assault on taxpayer rights, hearing another stealth tax increase case (31 August 2010)
The Colorado Supreme Court’s ‘Mullarkey Majority’ has now gone 0-16 in upholding TABOR, a “perfect season” establishing them as the 2008 Detroit Lions of jurisprudence
(Mullarkey’s replacement, Monica Marquez, recused herself from the decision due to her role as a former Deputy Attorney General arguing the case for violating taxpayer’s rights before the Court of Appeals)
Some of the most prominent examples of the court’s “perfect” record:
- ‘Mill Levy Tax Freeze‘ property tax increase (calling the tax increase a “rate freeze”)
- ‘Dirty Dozen‘ tax increases (2010) and the 2009 tobacco tax increase (calling tax increases “elimination of Tax Credits & Exemptions“)
- ‘Colorado Car Tax’ (enabling tax increases by calling them “fees” instead of taxes)
Following the pattern of earlier anti-TABOR decisions, the majority opinion tortures statutory language to extract a tenuous justification for a constitutional end-run in favor of tax increases, overturning a Colorado Court of Appeals ruling that was a model of clarity and conciseness in legal language:
so simple, even a caveman could understand it:
We hold that TABOR precludes the challenged coal severance tax adjustments. Our holding is based on a simple syllogism:
(1) TABOR prohibits increasing tax rates without voter approval. Colo. Const. art. X, § 20(4)(a); Nicholl v. E-470 Public Highway Auth., 896 P.2d 859, 867 (Colo. 1995).
(2) Applying the statutory formula increased the coal severance tax rate (initially from $0.54 to $0.76 per ton) without voter approval.
(3) Therefore, TABOR was violated.
So how did the Colorado Supreme Court get around this clear, concise language?
The ruling majority declared that the tax increase was merely an “adjustment” to the “tax rate formula” that the statutory language “required” the Department of Revenue to increase – a “non-discretionary” mechanism (despite the undisputed fact that the Department of Revenue did exercise discretion – and complied with the Constitution by not raising the rate – for 15 years previously). The majority likewise ignored the well-established legal principle that constitutional language trumps statutory language, as Justice Coats pointed out in his dissent:
Not only is TABOR a constitutional provision to which legislative acts are subservient, rather than merely another statute itself, but its intent to limit the legislative taxing power by subjecting it directly to popular approval, see Bickel v. City of Boulder,885 P.2d 215, 226 (Colo. 1994), and to ‘s upersede” all conflicting state statutes could not be more clear, see Colo. Const. Art X, sec. 20 (1) (“All provisions are self-executing and severable and supersede conflicting state constitutional, state statutory, charter, or other state or local provisions.”). Starting November 4, 1992, the state is expressly required to have voter approval in advance for any tax rate increase that does not fall within a TABOR exception.
Colo. Const. Art X, sec. 20(4)(a). The language of TABOR simply does not admit of any construction permitting future tax rate increases without the constitutionally required voter approval, whether or not they were mandated by statutes enacted before the constitutional amendment, and this court has never suggested otherwise.
Despite the clearly-expressed intent of the voters, both in decisively repudiating a tax increase at the polls (in 2011) and in establishing constraints of the power of government to arbitrarily and without asking raise taxes (or “increase revenue” by any “tax policy changes”) by adopting a constitutional amendment (the “Taxpayers Bill of Rights” in 1992), the Colorado Supreme Court continues its unbroken streak of raising taxes by judicial decree, usurping the power and authority both of the legislature and of “We The People” – the ultimate sovereigns.
As Justice Coats made clear in his dissent:
It simply strains credulity beyond the breaking point to assert, as does the majority, that raising the tax on every ton of extracted coal from fifty-four to seventy-six cents is not a tax rate increase.
A tax increase by any other name (be it “elimination of existing exemption“, “fee“, or now “adjustment“) still smells as foul.
A violation of your right to have a say before having your money taken from you is just as bad (arguably, much worse) coming from the courts as coming from the executive or legislative branches - your wallet can’t tell the difference.
Know your rights – as a Citizen – and defend them.
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.
Governor Hickenlooper selects JeffCo Judge Brian Boatright as next Colorado Supreme Court justice
Colorado Governor John Hickenlooper announced this morning his selection of Jefferson County District Court Judge Brian Boatright (1st Judicial District) to become the next Colorado Supreme Court justice. Judge Boatright replaces departing Justice Alex Martinez, who is resigning to take a “city job” as Denver Manager of Safety (after being retained in office only last year, albeit with the lowest – 59% – percentage of “retain” votes ever received by an incumbent Colorado Supreme Court justice).
Governor Hickenlooper selected Judge Boatright from among three finalists selected by the Colorado Supreme Court Nominating Commission (announced earlier this month). Judge Boatright was the only one of the three with any judicial experience (having served as a trial court judge for the over a decade) and will be only one of two Colorado Supreme Court justices with experience as a trial court judge once he joins the state’s highest court.
Judge Boatright comes to the Colorado Supreme Court with a broad range of experience, respect from both peers and other persons coming before his court, and strong endorsements from his application packet’s letters of reference and recommendation.
Most encouragingly, Judge Boatright’s statements at this morning’s press conference announcing his appointment, and in a previous interview (published only yesterday in the Denver Post) appear to indicate that he understands that the proper role of the judiciary is to uphold the law as written and “gets it” when it comes to the qualities that make a “good” judge.
Yesterday’s Denver Post, “Colorado Supreme Court justice finalists from diverse political backgrounds” included the following:
“Your job is to follow the law and apply the law regardless of how you personally feel,” he said. “You can’t have decisions based on personal whims of the judges. It’s got to be based on what the law is. It gives predictability to society; it gives confidence in the system.”
Judge Boatright’s statement this morning, as reported by the Post’s Jessica Fender (“Boatright brings family law expertise, “intangibles” to Colorado Supreme Court“) continues in the same vein:
“I will always do my best to serve the citizens and apply the law as written,” Boatright said.
Of course, even the best of people can succumb to the temptations of power (which is why elected and appointed officials must be held accountable by a watchful citizenry), but initial indications are that Governor Hickenlooper chose wisely, and that Judge Boatright will likely continue to serve Colorado well as Justice Boatright.
In any event, Clear The Bench Colorado will be watching.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Colorado Supreme Court Justice Nominees Profiled
The three nominees selected a week ago by the Colorado Supreme Court Nominating Commission (Judge Brian Boatright, attorneys Frederick Martinez and Patrick O’Rourke) were each interviewed Friday by Governor John Hickenlooper, and earlier today (Monday) by Lt. Governor Joe Garcia. Governor Hickenlooper, who has the final say on which of the three will be appointed as the next Colorado Supreme Court justice (replacing resigning Justice Alex Martinez, resigning to take a “city job” as Denver Manager of Safety) is expected to announce his pick later in the week (no later than Friday October 28th, or the pick will fall to Colorado Supreme Court Chief Justice Michael Bender, according to the provisions of Colorado Constitution, Article VI (Judiciary), Section 20).
If the governor shall fail to make the appointment (or all of the appointments in case of multiple vacancies) from such list within fifteen days from the day it is submitted to him, the appointment (or the remaining appointments in case of multiple vacancies) shall be made by the chief justice of the supreme court from the same list within the next fifteen days.
The selection of three finalists by the Colorado Supreme Court Nominating Commission after reviewing applications and interviewing candidates over the last couple of weeks represents the sole “check” or “balance” to the power of the governor to select and appoint judges in our state (unlike the system for appointing federal judges, there is no “advise & consent” function exercised by the state legislature).
(Click here to know more about how individuals are selected & appointed to judicial office in Colorado)
Governor Hickenlooper, to his credit, followed the precedent recently established by former Governor Bill Ritter in accepting public input on the 3 nominees to become the next Colorado Supreme Court justice (soliciting E-mails to judicial.appointments@state.co.us with your comments, concerns, or suggestions).
Also following recently established precedent (established for the first time earlier this year), the Denver Post published a profile of the nominees for this important public office (Sunday edition 23 October, “Hickenlooper to choose new Supreme Court justice“).
Until recently, the most information available to the public would have been the names of the finalists – a situation lacking in the transparency and accountability the public has every right to expect in relation to holding public office. Clear The Bench Colorado has been among the leaders calling for reform in the judicial selection and nomination process (”No More Secrecy in Colorado Supreme Court judicial hiring“), as noted in last year’s Denver Post article on replacing Mullarkey:
These are people who are auditioning to become government employees occupying some of the highest offices in the state about which there is no knowledge or public input or transparency or accountability,” Arnold said. “I would certainly urge the legislature to take a look at this…
For only the second time in state history, additional information on the nominees (including the public portion of their applications) is available to the public for review. Law Week Colorado has again made the applications available for view (”State Releases Applications Of Finalists For Colorado’s High Court“).
Unfortunately, although the Denver Post profile of the nominees provides a (brief) overview of the respective professional accomplishments of each of the nominees, and some anecdotal insights into their personalities, it does little to illuminate the qualifications each brings to the state’s highest judicial office. Although one of these three individuals will be elevated into a position of “supreme” power to interpret and apply the law, the public is provided no insight into their judicial philosophy or decision-making process. Particularly when only one of the nominees has ever served as a judge at any level, do they understand and will they exemplify the qualities that make a good judge? Will they exercise judicial power fairly and impartially, and with appropriate restraint?
The governor’s decision – which of these three nominees he ultimately appoints to the Supreme Court – will have deep and lasting implications for the state, perhaps greater than any other decision he makes. May he choose wisely…
In any event, Clear The Bench Colorado will be watching.
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.
Finalists for Colorado Supreme Court vacancy announced: Boatright, Martinez, or O’Rourke will be next Colorado ‘Supreme’
Announced with much less fanfare Thursday (a short article buried in the Denver Post, “Finalists named for Colorado Supreme Court” and in the Denver Business Journal online, “3 finalists named for Colorado Supreme Court seat“) than last year’s front-page article announcing the finalists to replace outgoing Chief Justice Mary Mullarkey (”Three finalists emerge for Colorado Supreme Court vacancy“), the names and applications of the finalists to replace outgoing Justice Alex Martinez, resigning to take a “city job” as Denver Manager of Safety, were released to the public.
The selection of three finalists by the Colorado Supreme Court Nominating Commission after reviewing applications and interviewing candidates over the last couple of weeks represents the sole “check” or “balance” to the power of the governor to select and appoint judges in our state (unlike the system for appointing federal judges, there is no “advise & consent” function exercised by the state legislature).
(Click here to know more about how individuals are selected & appointed to judicial office in Colorado)
Under the Colorado Constitution, Article VI (Judiciary), Section 20, the governor has 15 days from the announcement of the commission’s nominees (so, until 28 October) to pick one of the three, or the Chief Justice (Michael Bender) makes the pick:
If the governor shall fail to make the appointment (or all of the appointments in case of multiple vacancies) from such list within fifteen days from the day it is submitted to him, the appointment (or the remaining appointments in case of multiple vacancies) shall be made by the chief justice of the supreme court from the same list within the next fifteen days.
Last year, to his credit, former Governor Bill Ritter solicited public input on the three nominees to become the next Colorado Supreme Court justice (soliciting E-mails to judicial.appointments@state.co.us with your comments, concerns, or suggestions); it remains to be seen if Governor Hickenlooper will seek the same level of public participation before he (on 21 October) and Lt. Governor Garcia (on 24 October) interviews the nominees in person.
So who are the three nominees?
Until recently, the most information available to the public would have been the names of the finalists – a situation lacking in the transparency and accountability the public has every right to expect in relation to holding public office. Clear The Bench Colorado has been among the leaders calling for reform in the judicial selection and nomination process (”No More Secrecy in Colorado Supreme Court judicial hiring“), as noted in last year’s Denver Post article on replacing Mullarkey:
These are people who are auditioning to become government employees occupying some of the highest offices in the state about which there is no knowledge or public input or transparency or accountability,” Arnold said. “I would certainly urge the legislature to take a look at this…
For only the second time in state history, additional information on the nominees (including the public portion of their applications) is available to the public for review. Law Week Colorado has again made the applications available for view (“State Releases Applications Of Finalists For Colorado’s High Court“).
In alphabetical order, the nominees for the next Colorado Supreme Court justice are:
- Brian Boatright, a Jefferson County District Court Judge, from Arvada
(Work address/phone: 100 Jefferson County Parkway, Golden CO 80031/(303) 271-6433) - Frederick Martinez, an attorney with Hall & Evans, from Castle Pines
(Work address/phone: 1125 17th Street, Suite 600, Denver CO 80202/(303) 628-3302) - Patrick O’Rourke, chief litigation attorney for the University of Colorado, from Highlands Ranch
(Work address/phone: 1800 Grant Street, Suite 800, Denver CO 80203/(303) 860-5691)
Interestingly, only one of the nominees (Judge Boatright) has any experience in judicial office, as a District Court judge in Jefferson County (1st Judicial District). (In comparison, the nominees to replace outgoing Chief Justice Mary Mullarkey, who quit rather than be held accountable by Colorado voters, included an Appeals Court judge, a District Court judge, and an assistant Attorney General). Attorney Frederick Martinez has worked on the Office of Attorney Regulation Council (the arm of the Colorado Supreme Court responsible for reviewing ethics complaints and charges against attorneys) and as a public defender, in addition to general litigation. Attorney Patrick O’Rourke has been the chief litigator for the University of Colorado, and has argued several high-profile cases such as Ward Churchill’s “1st Amendment retaliation” claims against CU (in district court) and the recent CU Gun Ban case (before the Colorado Supreme Court). Former litigators would of course have to recuse themselves from any case (including appeals of those cases) they have represented.
Our view: Citizen participation in the judicial nominating process (at both the district and state levels) is essential to ensuring that good judges – who understand that their role is to fairly & impartially uphold and apply the law – are elevated to hold judicial office, instead of more politicians in black robes.
This is particularly important in selecting the next Colorado Supreme Court justices – who all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.
Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our supreme court justices are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Colorado Supreme Court Nominating Commission fills vacancy, set to review applications to replace resigning Justice Martinez
Although three more vacancies will open on Colorado’s Supreme Court Nominating Commission (along with 42 other vacancies on judicial district nominating commissions across the state) when the terms of several current commissioners expire, the appointment last week of Ira J. Paulin to fill the non-attorney slot from the 4th Congressional District fills the final vacancy before the commission begins reviewing applications (beginning October 3rd) to replace outgoing Justice Alex Martinez, who announced at the end of August that he is resigning to take the job of Denver Manager of Safety.
Another vacancy (the attorney slot from the 7th Congressional District) was recently filled (by joint action of Governor John Hickenlooper, Attorney General John Suthers, and Chief Justice Michael Bender) by Deputy District Attorney Charles Tingle of Jefferson County.
(H/T to Law Week Colorado for covering the news of these recent appointments and profiling the current members of the Commission (”Meet Those Who Will Help Select Colorado’s Next Justice“)
The resignation of Justice Alex Martinez, who was retained in office last November with 59.2% of the vote (the lowest percentage of “retain” votes received by an incumbent supreme court justice in state history) will provide Governor Hickenlooper with his first opportunity to select a state supreme court justice, once the commission pares down the list of applicants to three “finalists” from which he’ll make the final pick. Governor Hickenlooper’s Colorado Supreme Court appointment will not only provide some insight into the governor’s views on judicial philosophy and the rule of law, but also provide a preview of the likely direction of the state’s highest court.
Will Governor Hickenlooper reinforce the stated desire of new Chief Justice Michael Bender to “de-politicize” the court (responding to criticism of the court’s performance by Clear The Bench Colorado and other observers) or will he succumb to the temptation to place another partisan, activist judge in the mold of disgraced former Chief Justice Mary Mullarkey on the bench?
Only time (and the announcement of the Nominating Commission’s selection of three “finalists”) will tell.
Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly & impartially uphold and apply the law – are elevated to hold judicial office, instead of more politicians in black robes.
This is particularly important in selecting the next Colorado Supreme Court justices – who all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.
Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our supreme court justices are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Colorado Judicial branch announces forty-five openings on judicial nominating commissions around the state
The Colorado Judicial Branch, “[o]n behalf of Gov. John Hickenlooper, Attorney General John Suthers and Chief Justice Michael L. Bender,” recently announced “the opening of the application period for 45 vacancies on judicial nominating commissions across the state of Colorado.” (Colorado Judicial Branch press release, 15 September 2011)
Some positions are open now; the majority of vacancies will occur when current commissioners’ six-year terms end Dec. 31. All commissioners serve as volunteers. Applications are due on or before October 14, 2011.
Under Colorado’s “merit selection and retention” system of filling judicial offices, the judicial nominating commissions – at either the district level, or statewide – represent one of the few opportunities for Colorado citizens to have a say in the composition of our courts. In essence, the commissions are the means by which Citizens can become involved in choosing our judges.
At the district level (Colorado is divided into 22 judicial districts),
Each judicial district nominating commission consists of seven citizens residing in that judicial district. No more than four members can be from the same political party, and there must be at least one voting member from each county in the district. [Source: Colorado State Courts, Judicial Nominating Commissions]
At the statewide level (including both the Colorado Supreme Court and Court of Appeals),
The Supreme Court Nominating Commission recommends candidates to serve as judges for the Supreme Court and the Court of Appeals. The chief justice of the Supreme Court chairs the commission and is a non-voting member. This commission includes one citizen admitted to practice law in Colorado and one citizen not admitted to practice law residing in each of the state’s seven congressional districts, and one additional citizen not admitted to practice law in Colorado. [Total of 15 commissioners] (Source: Judicial Nominating Commissions)
According to the state courts website (Judicial Nominating Commissions), there is one current vacancy on the Supreme Court Nominating Commission (a non-attorney who must reside in the 4th Congressional District); another position until recently vacant was filled with Jeffco Chief Deputy DA Charles Tingle (a Republican) for the 7th Congressional District attorney slot. An additional 3 seats on the commission (one attorney, from the 5th Congressional District, and a non-attorney each from the 2nd and 7th Congressional Districts) are opening when the currently serving commissioners (all Republicans) term expires. All commissioners serve as volunteers. Applications are due on or before October 14, 2011.
UPDATE: Law Week Colorado profiles the current members of the Supreme Court Nominating Commission (“Meet Those Who Will Help Select Colorado’s Next Justice“)
(For a full list of district commission openings, view the Judicial Nominating Commissions and scroll to the bottom)
From the press release:
Application forms for vacancies on the various commissions may be found on the Colorado Judicial Department web site at http://www.courts.state.co.us/Courts/Supreme_Court/Nominating.cfm. Completed application forms may be mailed to Romaine Pacheco, Governor’s Office of Boards and Commissions, 136 State Capitol Bldg., Denver, CO 80203. They also may be faxed to 303-866-6368 or sent by e-mail to boards@state.co.us.
Article VI, Section 24 of the Colorado Constitution requires that for any nominating commission, “no more than one-half of the commission members plus one, exclusive of the Supreme Court justice serving as ex officio chair, shall be members of the same political party.” The Constitution also requires that at least one commissioner reside in each of the counties of the district. Applicants must reside in the judicial district – or, for the Supreme Court Nominating Commission, the Congressional District – to which they are applying for appointment.
Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to hold judicial office, instead of more politicians in black robes.
This is particularly important in selecting the next Colorado Supreme Court justices – who all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.
Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our supreme court justices are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.
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.
Defending the Constitution – Why 9/11 still matters today (10 years later)
“It is Tuesday morning, the 11th of September… and you will not forget this date.”
(TV reporter, unknown, reporting from NYC as events unfolded on the morning of 9/11…)
10 years ago today, the most horrific attack ever carried out on American soil claimed the lives of thousands of Americans, making clear that “there’ll be no shelter here – front lines are everywhere.”
Looking back, it occurred to me that I’ve since spent most anniversaries of that fateful Tuesday morning – forever burned into the American psyche as, simply, 9/11 – on duty away from home.
2002: Afghanistan; 2003: Fort Benning, Georgia; 2005: Operation Katrina (hurricane disaster relief/recovery operations); 2006: Fort Bragg, North Carolina; 2009: Camp Williams, Utah; and now this year, 2011: Fort Indiantown Gap, Pennsylvania.
My experience in this regard is hardly unique – indeed, I’ve spent less time on duty away from home than many others who proudly wear the uniform – a mere token of service willingly rendered in defense of our nation, and the Constitution we are sworn to support and defend.
Sadly, many of the men and women in uniform serving on that day and since – military, NYC Police & Port Authority, and FDNY - are not “invited” to the 10th anniversary of 9/11 at Ground Zero ’due to “lack of room”. Funny – they weren’t “invited” on that fateful day in 2001 either – they just “showed up” and did what needed to be done.
However, America isn’t about the politicians, officials, and various muckety-mucks who’ll be pontificating at that “official” event and others.
America is about the brave people – often bearing only the proud title of “Citizen” – who just “show up” to do what needs doing.
Defending the Constitution – Why 9/11 still matters today (10 years later)
Clear The Bench Colorado joins millions of Americans across the country in somber remembrance of the 9/11 attacks on our nation.
What does this have to do with holding our Colorado Supreme Court justices accountable to the rule of law and the Colorado Constitution? Quite a lot, actually…
As a proud veteran of the U.S. military (including service in the Colorado Army National Guard), I take my oath of enlistment – “I will support and defend the Constitution of the United States and the State of Colorado [emphasis added] against all enemies, foreign and domestic” - seriously; very seriously.
Many of our elected (and unelected) officials seem to have a much more cavalier attitude towards their own oath of office.
Colorado Supreme Court justices also swear a similar oath on taking office, which begins:
“I will support the Constitution of the United States and the Constitution of the State of Colorado.”
Note that the judicial oath of office does not state “I will support only those parts of the Constitution that I like or with which I personally agree or empathize.”
Yet the Mullarkey Court has consistently ruled against the Colorado Constitution’s Article X, Section 20 (TABOR) in every case it has heard – despite the clear intent and letter of the law that “[i]ts preferred interpretation shall reasonably restrain most the growth of government.”
The Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, Chief Justice Mary Mullarkey) are oathbreakers – and dishonor the service of the men and women of the United States military and law enforcement agencies who put their lives on the line to support and defend our Constitution. They have proven themselves unworthy of the high office they occupy.
Another important lesson of 9/11 is that individuals matter – and fighting to defend your rights, and your lives, is the only way to preserve your rights (and your life, in extremis) when under attack. The true heroes of that day were not only the firefighters but also the ordinary citizens who acted to save lives – and the brave passengers on Flight 93 who fought back against the hijackers on the 4th plane and died not as victims, but as American heroes.
We can no longer be under any illusion – as the passengers on Flight 93 discovered – that our rights and lives are NOT under attack; we are threatened by enemies both foreign and domestic. The nature of the threat (and appropriate response) is different, but the need to take action, to defend your rights – remains the same.
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 Colorado Supreme Court Justice Alex Martinez resigns – Who selects the next Colorado Supreme Court justice, and how?
Wednesday’s surprise announcement by Colorado Supreme Court Justice Alex Martinez that he intends to resign from the bench (in order to become Denver Manager of Safety) brings renewed focus to the judicial selection and retention system in Colorado. Unlike other states, many of which either elect judges or appoint them without any form of popular accountability, Colorado’s mixed system of appointment and accountability via retention elections is not well understood by the general public.
Misconceptions, misunderstanding, and misinformation about the process for selecting the judicial branch officeholders in Colorado is (unfortunately) all too common. Part of Clear The Bench Colorado’s mission is to contribute to informing the electorate about their constitutional rights to hold the judiciary accountable via the retention election process, and the process for selecting replacements for outgoing judges. Since We The People do not vote for their replacements, who gets to decide?
Unfortunately, most Colorado citizens know more about the process of picking the Pope than about how our state selects nominees for judicial office.
This is unfortunate – because, despite some flaws (most importantly, a lack of transparency and public accountability – secrecy encouraged by the legal establishment, who are more interested in protecting their members and covering for their ‘buddies on the bench’ than allowing them to be called to account), the process does provide some level of front-end vetting of judicial applicants, filtering out the obviously unqualified and excessively partisan (weeding out the ‘worst of the worst’).
Clear The Bench Colorado published an overview of the judicial selection process (”Selecting the next Colorado Supreme Court justice(s) post-Mullarkey retirement and retention elections – who decides?“) last year; this article is an updated version, incorporating insights gained from discussions with former Nominating Commission members.
How Colorado selects individuals for judicial office:
Under the Colorado Constitution, Article VI (Judiciary), Section 20:
Vacancies. (1) A vacancy in any judicial office in any court of record shall be filled by appointment of the governor, from a list of three nominees for the supreme court… such list to be certified to him by the supreme court nominating commission for a vacancy in the supreme court
First, although the governor has the final say in the process (making the final pick), he does not have an entirely free hand. Unlike the process for selecting Federal judges, there is NO role under Colorado’s “merit selection” process for the legislative branch to provide a check or balance to executive power via “advice and consent.” The legislature does not weigh in on the process in any formal or legal way (although individual legislators may make their thoughts known to the governor, who has the final say).
Instead, the “front-end” check is provided by an appointed Judicial Nominating Commission, as described in this entry in the Judgepedia website:
The Supreme Court Nominating Commission recommends candidates to serve as judges for the Supreme Court and the Court of Appeals. The chief justice of the Supreme Court chairs the commission and is a non-voting member. This commission includes one citizen admitted to practice law in Colorado and one citizen not admitted to practice law residing in each of the state’s seven congressional districts, and one additional citizen not admitted to practice law in Colorado.[1]
Commission members serve six-year terms. Non-lawyers, who are the majority of every nominating commission, are appointed by the governor. Lawyer members are appointed by joint action of the governor, attorney general, and chief justice.
Not noted in the Judgepedia article, but specified under the constitutional language (Article VI, Section 24 Judicial nominating commissions) is a requirement for some partisan balance on the commission:
(2) The supreme court nominating commission shall consist of the chief justice or acting chief justice of the supreme court, ex officio, who shall act as chairman and shall have no vote, one citizen admitted to practice law before the courts of this state and one other citizen not admitted to practice law in the courts of this state residing in each congressional district in the state, and one additional citizen not admitted to practice law in the courts of this state. No more than one half of the commission members plus one, exclusive of the chief justice, shall be members of the same political party.
The commission has 30 days from when the vacancy is announced to meet, review applications, conduct interviews, and select three finalists to submit to the governor, who then has 15 days to make a selection (if the governor fails to make a pick, then the Chief Justice selects instead).
Newly appointed justices “shall hold office for a provisional term of two years and then until the second Tuesday in January following the next general election” after which they enjoy 10-year terms:
By the Numbers: How the Judicial Selection Process actually works
- On announcement of the vacancy and solicitation for application, prospective nominees submit an extensive application packet (including a long questionnaire, writing sample, background information, summary of relevant professional experience, and references).
- Commission members review the applications, and select from the total list (last year, 31 people applied for the impending vacancy) for interviews (a particular candidate will be interviewed if any commissioner expresses a strong desire to have them appear). Commissioners consider the current makeup of the court, and may advocate for a specific constituency – a particular area of legal expertise – such as water or business law, or possibly a regional or ethnic representation in pursuit of court ‘diversity’). Interviews are based on a common set of ‘core’ questions (for consistency of comparison & evaluation); each commissioner develops and uses his/her own evaluation criteria.
- Following interviews, the commission deliberates/discusses the candidate, voicing comments or concerns to the group at large.
- Following all of the interviews, the commission casts a ballot – three unranked votes per opening (for the Colorado Supreme Court or Court of Appeals – lower courts may only require 2-3 nominees). The top vote-getters become the finalists – with the caveat that any finalist MUST receive a majority of total Commission votes (i.e. 8 of 15), irrespective of how many are actually present. Multiple ballots may be (generally are) necessary. (Note that the current makeup of the Nominating Commission – 7 Democrats, 5 Republicans, 3 Unaffiliated – ensures that any finalists MUST receive at least one vote from multiple party affiliations).
- The names of the three finalists are submitted for consideration by the governor, who has 15 days to make a selection from the list.
ALL of our sources (from differing party backgrounds) have stressed that the Nomination Commission deliberations are non-partisan (which is not to say, as our sources admit, that the deliberations and considerations do not reflect ideology or judicial philosophy – which is, in our view, entirely appropriate).
A common critique of Colorado’s system of “merit selection & retention” for judges is the lack of transparency in commission deliberations (both during front-end judicial selection, and in back-end judicial performance review and retention) and lack of meaningful opportunity for public participation and comment. This lack of transparency leads to a lack of public confidence in our judiciary and ultimately to a lack of accountability for the increasingly active and powerful Third Branch of our government.
Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our supreme court justices are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.
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.