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.

An informed citizenry and active citizen participation is vital in restoring accountability and transparency to the 3rd branch of state government, the judiciary - most particularly for the Colorado 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.

“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.

Surely make you lose your mind…

The Colorado Car Tax (er, “fee”) increase - ironically dubbed ‘FASTER’ - passed in the 2009 legislative session made another lap in media coverage this past week with a broadcast on the ‘Devil’s Advocate‘ television program and publication of a pair of “Issue Backgrounder” papers.

The “Issue Backgrounder” papers each address a specific aspect of the FASTER legislation, focusing in on the “Bridge Enterprise” (a ‘government-owned business’ within the Colorado Department of Transportation, or CDOT).  One paper addresses how the “Bridge Enterprise” has raised $300M in debt without (constitutionally-required) voter approval (and the long-term implications for Colorado’s fiscal stability); the other more generally addresses how the Colorado Bridge Enterprise contravenes the Colorado Constitution.

Both papers are well worth reading, and provide additional detail on just how bad even this single aspect of the FASTER Colorado Car Tax (er, “fee”) is for Colorado citizens.

However, both papers together only tell half of the story (almost literally).  The ‘Colorado Bridge Enterprise’ is only one of two new ‘government-owed businesses’ established by the FASTER legislation (the other being the ‘Colorado Transportation Enterprise’ charged with collecting and spending the ‘road safety surcharge’ tax - er, “fee”) .  Both “enterprises” are overseen by an 11-member appointed (ergo, unaccountable to the public) board (coincidentally, the same 11 people who make up the Colorado Transportation Commission).  Significantly (although unfortunately unremarked in both papers), both ‘enterprises’ are also authorized to use eminent domain to seize private property.

The television broadcast is informative and entertaining as well, but unfortunately also misses significant parts of the story.

The Colorado Car Tax - It’s Worse Than You Think

Also unremarked in both papers - and on the television broadcast as well - is the fact that FASTER actually comprises multiple tax increases (er, “fees”) in a single piece of legislation, blatantly violating the constitutional requirements to “receive voter approval in advance” for “any new tax, 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.” (Colorado Constitution, Article X, Section 20 - the ‘Taxpayer’s Bill of Rights’).  The “bridge fund fee” and the “road safety surcharge fee” increase each year for three years (yep, that’s 3 tax increases in one!), in addition to imposing an entirely separate “fee” on car rentals as well.  Oh, and don’t forget the “late fees” too…

But all of this is necessary “to preserve our crumbling transportation infrastructure,” right?  That was the justification for passing the bill - along with claims that any and all “fees” collected “shall be used exclusively for the construction, maintenance, and supervision of the public highways of the state.”   Says so right in the legislative language (43-4-810), so it must be true, correct?

Not so much.  The dirty little secret of the FASTER bill is that many of the taxes (er, “fees”) collected don’t go towards the construction or maintenance of roads or bridges at all, but for “multi-modal and demand-side transportation solutions” - such as the desire of certain state Senators for streetcars in Denver - justified by other language in a following section (43-4-812):

43-4-812. Use of user fees for transit - legislative declaration.
(2) THE GENERAL ASSEMBLY HEREBY FINDS AND DECLARES THAT THE FUNDING OF TRANSIT-RELATED PROJECTS AUTHORIZED BY SUBSECTION (1) OF THIS SECTION CONSTITUTES MAINTENANCE AND SUPERVISION OF STATE HIGHWAYS BECAUSE IT WILL HELP TO REDUCE TRAFFIC ON STATE HIGHWAYS AND THEREBY REDUCE WEAR AND TEAR ON STATE HIGHWAYS AND BRIDGES AND INCREASE THEIR RELIABILITY, SAFETY, AND EXPECTED USEFUL LIFE.

In fact, the bill MANDATES state spending of $10 Million per year on “transit-related projects.”

It’s an outrageous semantic shell game - and a blatant violation of your constitutional rights.

To sum up: the “FASTER” car tax increase raised vehicle registration fees by $22.50-55 per vehicle, including a “road safety surcharge fee” of $16-$39 per vehicle, PLUS a “bridge fund fee” of $13-$32 per vehicle (phased in at 50%/75%/100% each of the first 3 years ).  Plus mandatory “late fees” of $25/month (capped at $100) - for all “vehicles” (including trailers barely even worth that much).

All while creating two new ‘government-owned’ bureaucracies with power to spend, borrow, & seize private property unconstrained by the Taxpayer’s Bill of Rights and not accountable to the people.

Oh, and increasing mandatory spending by over $10 Million per year on purposes other than roads, bridges, or other transportation infrastructure used by those paying the “fees.”

Most of the politicians who did this to you - including Governor Bill Ritter, Senate sponsor Dan Gibbs, and House sponsor Joe Rice - have paid the political price, either quitting office or being defeated at the ballot box; however, the real culprits, without whom none of this would have been possible (thanks to a Nov. 2008 court ruling to allow “fees” to act like taxes, in violation of your constitutional rights) escaped justice (except for Chief Justice Mary Mullarkey, who quit rather than face the voters, the remaining members of the Colorado Supreme Court who aided and abetted FASTER were retained in office for another 10-year term).

Unfortunately, these politicians in black robes remain ‘at large’ and able to continue to assault your constitutional rights for years to come.

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

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

Ultimately, though - it’s worth the effort.

Clear The Bench Colorado Director Matt Arnold discussed the judicial accountability movement in Colorado - from CTBC’s launch in April 2009 through the present - in a wide-ranging interview with Michael Schaus on KFTM Radio on 27 April 2011.

Topics include the formation of Clear The Bench Colorado, examples of how the Colorado Supreme Court violated the constitutional rights of Colorado citizens (particularly the right to vote prior to imposition of any tax increase via elimination of Tax Credits & Exemptions or re-defining Taxes as Fees) and opened the door to legislative abuses (such as last year’s “Dirty Dozen” tax increases), and the continued influence of the Colorado Supreme Court over several issues, such as the ongoing battle over Congressional Redistricting and state legislative reapportionment.

Listen to the podcast here (recording cuts off the first couple of minutes)

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

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

Ultimately, though - it’s worth the effort.

The ongoing legislative battle over Congressional Redistricting remains the “hot” topic in the news - with an escalating “blame game” as to who “killed the bipartisan redistricting effort” and even disagreement on basic principles (“competitive” districts or communities of interest?).   Hint - only one of those is mandated by law - Colorado Constitution Article V, Section 47 Composition of Districts:

Composition of Districts.

(1) Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible. Each district shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap.

(2) Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts. Within counties whose territory is contained in more than one district of the same house, the number of cities and towns whose territory is contained in more than one district of the same house shall be as small as possible. When county, city, or town boundaries are changed, adjustments, if any, in legislative districts shall be as prescribed by law.

(3) Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible.

Garnering less media attention, but of equal and parallel importance for the composition of Colorado’s state legislative districts (contrary to confused coverage, a completely separate process), the state Reapportionment Commission today took further shape with the publication of Governor Hickenlooper’s three appointments to the commission.  As reported by State Bill Colorado,

They are former state legislator, Gayle A. Berry, a Republican from Grand Junction, from the 3rd Congressional District; former Mayor of Denver, Wellington Webb, a Democrat from Denver, from the 1st Congressional District; and Arnold Salazar, a Democrat from Alamosa, from the 3rd Congressional District.

Governor Hickenlooper’s press release announcing the appointments noted that “[m]y three appointments have committed themselves to creating more competitive districts, which should therefore create more competitive elections wherever possible” and ”expressed hope” that the sum of appointments from all three branches of government “would result in a commission with precise partisan balance.”  He expounded on this “hope” in an ‘open letter’ statement to Colorado Supreme Court Chief Justice Michael Bender, who will make (and announce) the ‘final four’ commission picks by May 5th:

“When the Chief Justice of the Colorado Supreme Court makes the final four appointments to this Commission, I hope he will make sure that there is a precise balance between Democrats and Republicans,” Hickenlooper said. “That means appointing at least one unaffiliated voter to the Commission.  Neither political party should have a majority in this process and we ought to encourage consensus on the Commission.”

However, it should be clear to all but the most naive observers that the “partisan balance” on the commission is mere window-dressing.  Hickenlooper’s “Republican” appointment to the commission, former Grand Junction legislator Gayle A. Berry (R- HD55) has worked for the past several years as a lobbyist - for Governor Ritter’s Energy Office, among others (click here for a list of her major clients).  The Western Slope’s “representation” on the commission  is rounded out by Arnold Salazar (yes, brother of Ken and John), the Executive Director of Colorado Health Partnerships, LLC and a member of Governor Ritter’s Blue Ribbon Commission on Healthcare Reform.

Further, although it is possible that Chief Justice Bender will honor the letter of Governor Hickenlooper’s request to round out the commission with apparent partisan balance and appoint an “unaffiliated” member, it is all but certain that the token “unaffiliated” commissioner will be an INDO at best (Independent in Name, Democrat in Orientation), if not an outright Democrat in unaffiliated clothing.  In fact, the leading candidate for the token “unaffiliated” slot is reportedly none other than former Gunnison Democrat legislator Kathleen Curry, according to the Denver Post:

Former state Rep. Kathleen Curry said she’s in the running for an appointment to a commission redrawing legislative boundaries.

“I applied and have been told by Justice Bender that I am being considered,” she said, in an email.

Republicans (and actual independents) may console themselves with what may appear to be a relatively close balance on the commission, but the reality is clear: once again, just like the last time around, Democrats will dominate the commission membership, with insurance picks provided courtesy of the Colorado Supreme Court.

On the bright side, the Republicans will be ably represented on the Reapportionment Commission by two of the sharpest and most knowledgeable minds available, thanks to inspired picks by both House leadership (Speaker Frank McNulty selected former Rep. Rob Witwer as his delegate) and Senate leadership (Senate Minority Leader Mike Kopp selected attorney Mario Nicolais as his delegate).  According to the Reapportionment Commission staff, “this is the first time that legislative leaders have not appointed serving legislators” to the commission; if so, the selections are a welcome break from tradition and demonstrate some fresh, “out-of-the-box” thinking.

Conversely, the Democrat selections are “politics as usual”: Senate President Brandon Shaffer selected ueber-partisan Senator Morgan Carroll (D-Aurora), and House Minority Leader Sal Pace picked Boulder Democrat Matt Jones (D-Boulder), who served on the 1991 Reapportionment Commission and also co-founded and co-chaired the Democratic House Majority Fund.

Unfortunately, we are once again witnessing in slow motion the erosion of our liberty - aided and abetted by the Colorado 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 with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public, and to provide useful evaluations of judicial performance.

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

Ultimately, though - it’s worth the effort.

As the battle over redistricting Colorado’s Congressional districts dominates the state’s political news this week, the general lack of knowledge about how district boundaries are determined (and the very different processes for deciding Congressional versus state legislative district boundaries) is striking.

The confusion is not restricted to the general populace alone (who might be excused for having better things to do with their time than research an esoteric process that occurs but once a decade), but - disturbingly - is shockingly common among many political “experts” and permeates many of the resources on which an interested observer might rely.

Many “resources” get it wrong (such as this April 15th BallotNews article which mixes up Colorado’s redistricting and reapportionment processes); the following is a well-referenced start at getting it right.

First, it is important to understand that there are two separate and distinct processes for determining legislative district boundaries in Colorado:

• Redistricting - which refers to Congressional districts
• Reapportionment - which refers to state legislative districts

The most publicly visible and contentious battles concern Congressional Redistricting - for which constitutional authority rests with the Colorado General Assembly (state legislature).  Under the Colorado Constitution (Article V, Section 44)

The general assembly shall divide the state into as many congressional districts as there are representatives in congress apportioned to this state by the congress of the United States for the election of one representative to congress from each district. When a new apportionment shall be made by congress, the general assembly shall divide the state into congressional districts accordingly.

The Colorado General Assembly has until the end of the current legislative session (which must end by 11 May 2011) to enact legislation setting the new boundaries for the state’s Congressional districts; if the state legislature is unable to pass legislation through both chambers (the Republican-controlled House AND the Democrat-controlled Senate) during the regular session, a special session may be convened over the summer to make another attempt.

Once (if!) the legislature passes a redistricting bill, the governor may sign the bill into law - or veto the bill, sending it back to the state legislature.  Often the threat of a gubernatorial veto is sufficient to force a compromise on pending redistricting legislation (a tactic employed by former Governor Roy Romer in 1990, for example).

Finally, if and when the redistricting legislation is passed and signed into law, it must survive the inevitable legal challenges.  Each of the last several decades has seen the eventual Congressional redistricting map decided by the courts - following the 1980 and 1990 census in Federal court, and most recently (following the 2000 census) by the Colorado Supreme Court, when the court essentially ruled itself ‘part of the General Assembly’ (in the Salazar v. Davidson case) in order to usurp the legislature’s exclusive constitutional authority to “divide the state into congressional districts.”

Unfortunately, the state legislature expanded the opportunity for judicial mischief in 2010 with late-session legislation expanding the court’s discretion in considering “non-neutral factors” (such as party affiliation and voter demographics and trends) when reviewing redistricting plans - enacting the so-called “Mary-mandering” bill, which removed from state law several factors designed to ensure fair and impartial review by courts concerning legislative district boundaries.

State legislative district boundaries are determined by a completely different process - one in which the legislature has an extremely limited - almost inconsequential - role.  Following adoption of a ballot measure (Colorado Amendment 6 (1974), which was approved on November 5, 1974), the constitutional authority for drawing up state legislative districts was shifted from the legislature to a Reapportionment Commission with members appointed from each of the three branches of Colorado government.

Composition and timelines for the Reapportionment Commission are specified in Colorado Constitution Article V, Section 48, the key language of which follows:

The four legislative members shall be the speaker of the house of representatives, the minority leader of the house of representatives, and the majority and minority leaders of the senate, or the designee of any such officer to serve in his or her stead, which acceptance of service or designation shall be made no later than April 15 of the year following that in which the federal census is taken. The three executive members shall be appointed by the governor between April 15 and April 25 of such year, and the four judicial members shall be appointed by the chief justice of the Colorado supreme court between April 25 and May 5 of such year.

Thus the legislative appointments to the commission result in a nearly automatic 2:2 tie, irrespective of the balance of power in the General Assembly (there is no difference between having 1 representative or 64 in the House, or 1 senator or 34 in the Senate - either way, or anywhere in between, each major party in the state legislature gets a single appointment from each chamber).

Even the Governor’s 3 appointments are not enough to gain a majority of commission membership, even added to the 2 legislative members.

However, the Chief Justice’s 4 picks - the decisive ‘final four‘ - are enough to secure a majority for one party, even in the face of complete dominance by the other side.  (Exactly that situation occurred in 2000, when Chief Justice Mary Mullarkey appointed 4 Democrats to secure a 6:5 advantage on the Reapportionment Commission, despite Republican control of the governor’s office and half of the state legislature.  Many observers - including the Denver Post - have noted that Mullarkey’s successor in the top judicial slot Chief Justice Michael Bender holds the balance of power with this year’s appointments to the commission).  The Post’s post-election coverage (”Who holds the key on redistricting“) noted:

Put simply: Democrats have the edge in the capitol and the courts on congressional redistricting, and have an overwhelming 9-2 advantage in appointing members to the committee that will oversee legislative redistricting.

It gets worse - since the Colorado Supreme Court is not only the ultimate arbiter of any legal challenges to Congressional redistricting (the U.S. Supreme Court has rejected most challenges on redistricting as a matter of state, not Federal, responsibility - which is appropriate) but also reviews the work product of the Reapportionment Commission - the very commission dominated by the Chief Justice’s appointments!

One need not have an overly suspicious or cynical mind to discern the potential for corrupting and politicizing influence on the courts, an unhealthy concentration of political power in the judicial branch, and a potential conflict of interest for the Chief Justice.

Reapportionment Timeline:

• 15 April 2011: legislative appointments to Reapportionment Commission due
• 25 April 2011: gubernatorial appointments to Reapportionment Commission due
• 5 May 2011: Chief Justice’s appointments to Reapportionment Commission due
• 15 May 2011: Reapportionment Commission convenes
• 5 September 2011: preliminary plan for reapportionment due (113 days after Commission convenes)
• 11 September 2011: “the commission shall finalize its plan and submit the same to the Colorado supreme court for review and determination” Article V, Section 48, (1)(e)
• 20 October 2011: due date for public hearings on reapportionment (”within 45 days of publication”)
• October 2011: “the commission shall finalize its plan and submit the same to the Colorado supreme court for review and determination” no later than 123 days prior to the date established in statute for the event commencing the candidate selection process” (which will be March 2012)
• 14 December 2012: due date for filing reapportionment plan with Secretary of State - IF the plan has been approved by the Colorado Supreme Court (”no later than ninety days prior to the date established in statute for the event commencing the candidate selection process”).

And that’s if everything proceeds according to plan…

Additional references:

• Constitutional Provisions Controlling Reapportionment/Redistricting (official Colorado state website, which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)
• Redistricting in Colorado (Ballotpedia site - although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site - contributions come from a variety of sources and are frequently edited - proceed with some skepticism)

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 with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public, and to provide useful 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.

“No man’s life, liberty, or property is safe while the legislature is in session.” - Mark Twain (1866)

Occasionally, however, the legislature can succeed in undoing previous acts putting one’s life, liberty, or property at risk…

State legislators made some progress this week towards repealing one of last year’s “Dirty Dozen” tax increases (which exploited a Colorado Supreme Court ruling to take more of your money without asking, as is required under the Colorado Constitution).

The “Dirty Dozen” was the name given to a package of twelve legislative bills which sought to increase tax revenues by eliminating existing tax credits or exemptions - an end-run around the constitutional requirement (in Article X, Section 20 - colloquially known as the Taxpayer’s Bill of Rights, or TABOR) for “voter approval in advance for… any new tax, tax rate increase, or… tax policy change directly causing a net tax revenue gain to any district.”

Last year’s legislative majorities (Democrats dominated both chambers of the state General Assembly) were emboldened in their assault on the constitutional rights (and wallets) of Colorado citizens by an interpretation of the Colorado Supreme Court’s ruling in the notorious “Mill Levy Tax Freeze” case (another unconstitutional tax increase, sanctioned by the court under the pretense that a rate “freeze” which collects more revenue doesn’t count as a tax increase for triggering that pesky constitutional requirement to receive “voter approval in advance”).  Solid legislative majorities, a compliant governor, and a complicit supreme court allowed them to take a bigger bite of your money without first (or ever) asking for permission.

Since the 2010 elections resulted in a shift of control of one legislative chamber (the state House of Representatives) and many members of the new majority campaigned on a promise to seek the repeal of these unconstitutional tax increases, progress towards the elimination of any one of these unconstitutional (and economy-killing) tax increases is welcome news.  Last week, HB 11-1005, Reinstate Tax Exemption for Ag Products (Sonnenberg/Brophy), which would repeal the 2.9 percent state sales and use tax on agricultural compounds, bull semen and pesticides that was (unconstitutionally) imposed by last year’s HB10-1195, Suspend Ag Sales & Use Tax Exemption (Ferrandino/Heath), passed the House with a bipartisan 48-17 vote and appears likely to pass the state Senate as well, according to this article (”Ag tax repeal passes state House“).

Repealing last year’s (unconstitutional) agricultural tax increase is a win both for the rule of law and Colorado consumers - since the tax indirectly raised the price of all food grown, raised, or otherwise produced in Colorado.  Noticed your grocery bill creeping up?  Last year’s tax increase is partially to blame; projected revenue gains of $1.5M have not been realized, while higher food costs are shifted to consumers.

Of course, had the Colorado Supreme Court stuck to its sworn duty to uphold the Colorado Constitution and the rule of law in the first place (instead of legislating from the bench), none of the “Dirty Dozen” would have been proposed, much less passed - and we wouldn’t need to pass more laws to repeal bad laws already enacted.

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 with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public, and to provide useful evaluations of judicial performance.

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

Ultimately, though - it’s worth the effort.

The following article was written for, and originally appears in, The Constitutionalist Today (February edition).

“No man’s life, liberty, or property is safe while the legislature is in session.” - Mark Twain (1866)

As another legislative session begins, the Colorado General Assembly once again faces a hefty budget shortfall; the projected gap between expected revenue and planned spending is $1.2B (yes, that’s $1,200,000,000) this fiscal year.  Last year at this time, the projected revenue shortfall was a mere $660M (about half of this year’s shortfall) which the legislature “fixed” with a combination of one-time subsidies, funds transfers and raids, other budgetary gimmicks - and the “Dirty Dozen” tax increases.

The “Dirty Dozen” was the name given to a package of twelve legislative bills which sought to increase tax revenues collected by eliminating existing tax credits or exemptions - an end-run around the constitutional requirement (in Article X, Section 20 - colloquially known as the Taxpayer’s Bill of Rights, or TABOR) requiring “voter approval in advance for… any new tax, tax rate increase, or… tax policy change directly causing a net tax revenue gain to any district.”

Last year’s legislative majorities (Democrats dominated both chambers of the Colorado General Assembly) were emboldened in their assault on the constitutional rights of Colorado citizens (and the grab into their wallets) by an interpretation of the Colorado Supreme Court’s ruling in the notorious “Mill Levy Tax Freeze” case (another unconstitutional tax increase, sanctioned by the court under the pretense that a rate “freeze” which collects more revenue doesn’t count as a tax increase for triggering that pesky constitutional requirement to receive “voter approval in advance”).  Solid legislative majorities, a compliant governor, and a complicit supreme court allowed them to take a bigger bite of your money without first (or ever) asking for permission.

Since the 2010 elections resulted in a shift of control of one legislative chamber (the state House of Representatives) and many members of the new majority campaigned on a promise to seek the repeal of these unconstitutional tax increases, it’s worth re-visiting the “Dirty Dozen” tax laws to provide an overview of what’s at stake.

Originally, twelve bills were introduced to repeal a total of thirteen existing tax credits or exemptions; one of the bills was not passed, resulting in eleven bills increasing twelve taxes (either way, the term “Dirty Dozen” remains an appropriate and accurate description).

In order of introduction, the bills were:

HB10-1189, Eliminate Sales Tax Exemption for Direct Mail (Pommer/Heath), signed 2/24/10. This bill increased the sales tax on direct mail advertising, impacting both the actual advertising companies and the predominantly small-business market (especially local small businesses) that rely on direct-mail advertising as a cost-effective and less expensive alternative to radio/TV ads.  This tax increase was projected to raise $1.5M, but has actually generated less revenue.

HB10-1190, Suspend Industrial Fuel Sales & Use Tax Exemption (Pommer/Heath), signed 2/24/10.  Also known as the “Energy Tax”, this bill effectively raised the cost of every product and service produced in Colorado (since every business using energy - i.e. all businesses - now must pay a higher price for energy, directly or indirectly, sometimes both - used ‘on the job.’) This new tax hits manufacturing industries, already pinched by increasing fuel prices, especially hard; the state’s largest manufacturing industry (Pueblo’s Evraz Rocky Mountain Steel) expected to pay $2M/yr in additional costs.  Projected state revenue gains of $48M have not been realized.

HB10-1191, Eliminate Candy & Soda Sales Tax Exemption (Pommer/Heath), signed 2/24/10.  The notoriously capricious Candy Tax not only angered Colorado kids, it also burdened stores with checking ingredients for each item to see if it was subject to taxation. (Ironically, some “energy bars” are considered “candy” while “Twix” or “KitKat” bars are not, based on the ingredient list).  Again, small businesses were disproportionately impacted and, predictably, revenue projections of $17.9M have not been achieved.

HB10-1192, Sales & Use Tax of Standardized Software (Pommer/Heath), signed 2/24/10.  Software downloads - particularly upgrades or updates to previously purchased programs such as antivirus or antispam software - were most impacted; previously, direct online purchases were not taxed.  Projected revenue gains of $15M have not been realized.

HB10-1193, Sales Tax Out-of-State Retailers (Pommer/Heath), signed 2/24/10.  Also known as the Amazon Tax, this tax increase prompted Amazon.com to terminate its local affiliate program (reducing income for some 5,000 Coloradans) and led to a (predicted) court challenge, since the bill sought to collect personal purchase data from online retailers (violating the 4^th Amendment). Taxpayers are funding the state’s defense (filed in Federal court, due to lack of confidence in Colorado courts) and needless to say, the projected $5M revenue has not been achieved.

HB10-1194, Eliminate Nonessential Articles Sales Tax Exemption (Ferrandino/Heath), signed 2/24/10.  Otherwise known as the Doggy Bag Tax - since legislators consider take-home food containers “non-essential” items for restaurants and thus subject to higher taxes (raising the cost of dining out, since the restaurants have to factor the increased cost into their prices).

HB10-1195, Suspend Ag Sales & Use Tax Exemption (Ferrandino/Heath), signed 2/24/10.  Increasing taxes on a wide range of agricultural products (including animal feed, vaccines, drugs, pesticides, etc.) has indirectly raised the price of all food grown, raised, or otherwise produced in Colorado.  Notice your grocery bill creeping up?  This tax increase might be to blame; projected revenue gains of $1.5M have not been realized (and higher costs are shifted to consumers).

HB10-1196, Eliminate Certain Cars Qualified for Tax Credits (Ferrandino/Heath), signed 2/24/10.  Removed several vehicles previously qualifying for tax credits from the list.

HB10-1197, Reduce Conservation Easement Cap Amount (Ferrandino/Heath), signed 4/29/10. Reduced the maximum state income tax credit allowed for conservation tax easements (expect Governor Hickenlooper to be willing to sign off on repeal, for obvious personal tax reasons).

HB10-1198, Suspend Credit Alternative Minimum Tax (Ferrandino/Heath), postponed.

HB10-1199, Net Operation Loss Deduction Temp Limit (Ferrandino/Heath), signed 2/24/10. Reducing the ability of businesses to write off losses just when they might be recovering delays their ability to invest, create jobs and generate revenue.  Penny wise, pound foolish?

HB10-1200, Enterprise Zone Investment Tax Credit Deferral (Hullinghorst/Heath), 5/7/2010.  Deferring income tax credits on enterprise zone investments has, unsurprisingly, reduced the willingness of potential investors to… well, invest - further slowing economic recovery.

The preceding list was a short summary of the “Dirty Dozen” tax bills; space precludes more detail, but interested readers can learn more at http://www.clearthebenchcolorado.org/ (search on keywords “Dirty Dozen”, “Amazon Tax”, “Candy Tax”, “Doggy Bag Tax” and others).

Matt Arnold is currently the executive director and primary spokesman for the grassroots effort to restore accountability to Colorado’s judiciary, Clear The Bench Colorado.  Matt launched the effort following the Colorado Supreme Court’s violation of the Colorado Constitution, citizen’s rights under the Taxpayer’s Bill of Rights (TABOR), and their duty to uphold the rule of law in the infamous “Mill Levy Tax Freeze” case.  Since April 2009, Matt has tirelessly sought to educate Colorado voters of their right to demand accountability of our Supreme Court justices in the November 2010 retention elections, which (although falling short of removing the three anti-constitutional incumbents on the ballot, achieved the highest percentage of “NO” votes for sitting “Supremes” in the history of the state- on a shoestring budget and no organized support).

The Constitution of the United States begins with the words “We the people.” But neither the Constitution nor “we the people” will mean anything if politicians and judges can continue to do end runs around both.

So begins a superb article by esteemed economist and commentator Thomas Sowell, published Tuesday (”Political End Runs“).

Sowell states the case as eloquently as I have seen about the need for citizens to hold not only their elected officials, but also unelected bureaucrats and judges accountable - to constitutional limits specifically and the rule of law in general.

Sowell’s piece begins with an expose of how bureaucrats in the Medicare office are quietly implementing rules for the healthcare “reform” legislation that were explicitly rejected by Congress (during debate - such as it was - on the same legislation).  As many critics pointed out at the time, the healthcare law ceded extraordinary power and authority to unelected bureaucrats to make up implementing rules as they went along.

The article quickly proceeds to a much more wide-reaching (and dangerous) trend in “political end runs” - judicial usurpation:

It is not only members of Congress or the administration who treat “we the people” and the Constitution as nuisances to do an end run around. Judges, including justices of the Supreme Court, have been doing this increasingly over the past hundred years.

Naturally, Sowell’s focus is at the Federal level - but the problem he articulates is very much a threat at the state level:

Professor Roscoe Pound likewise referred to the need for “a living constitution by judicial interpretation,” in order to “respond to the vital needs of present-day life.” He rejected the idea of law as “a body of rules.”

But if law is not a body of rules, what is it? A set of arbitrary fiats by judges, imposing their own vision of “the needs of the times”?

Actually, that describes quite adequately the condition of law in the state of Colorado - at least at the highest levels.  The Mullarkey Court has repeatedly injected its own vision of “the needs of the times” over the clear letter of the law and the constraints of the Constitution.  The Bender Court appears pre-disposed to follow this trend into the next decade - cementing Colorado’s status as a “judicial hellhole.”

The institutions that should be addressing the problem - Colorado’s legal establishment, sworn to “support the Constitution” and uphold the rule of law (which is actually part of the oath taken by lawyers in order to practice law in this state) - are instead fighting to expand the power of their “guild” and promote the special interests of the legal caste, even if it means playing fast and loose with the law.  (A consortium of legal-establishment special-interest groups, including the Institute for the Advancement of the American Legal System, IAALS; the Colorado Bar Association, COBAR; the Colorado Judicial Institute, CJI; and the League of Women Voters, LWV banded together to run a campaign in support of incumbent judges on the ballot this year, but failed to comply with Colorado Campaign Finance Law in the process).  Apparently, members of the legal establishment feel that the rules applying to ordinary citizens should not constrain their own activities.

This is, unfortunately, indicative of the mindset which dominates our would-be “ruling class”:

In other words, judges were encouraged to do an end run around rules, such as those set forth in the Constitution, and around the elected representatives of “we the people.” As Roscoe Pound put it, law should be “in the hands of a progressive and enlightened caste whose conceptions are in advance of the public.”

Sowell’s solution?

Unsurprisingly, the same solution advocated by Clear The Bench Colorado: accountability.

The Constitution cannot protect us unless we protect the Constitution, by voting out those who promote end runs around it.

A superb article that should have been written (and widely disseminated) three or more months ago.

Although Colorado voters lost an opportunity (and a battle) this last November, the fight for judicial accountability continues.  For those of us who would like to see Colorado’s judiciary reformed and returned to a proper role of upholding the Constitution and individual rights, we would appreciate your continued support - your comments (Sound Off!) and contributions are still needed. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

Last month’s Colorado Supreme Court ruling that created a “right” for plaintiffs (more accurately, their lawyers) to collect “recovered damages” over and above costs actually paid was apparently the straw that broke the camel’s back for a group that rates the performance of courts nationwide (as if the Mullarkey-Bender Court’s rulings to sanction unconstitutional tax increases by way of eliminating tax exemptions and credits or by re-defining taxes as “fees”, erosion of property rights, and usurpation of legislative authority wasn’t enough), adding Colorado to the list of jurisdictions nationally qualifying as a “judicial hellhole.”

The American Tort Reform Association’s annual “Judicial Hellholes” report for 2010 lists Colorado as one of only three state supreme courts nationwide to qualify for the “honor” (Colorado joins Michigan and perennial favorite West Virginia in being so recognized).

“Traditionally, Judicial Hellholes have been considered places where civil judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits,” explains ATRA general counsel Victor Schwartz.  “The jurisdictions we name as Judicial Hellholes each year are not the only unfair courts in the nation, but they are among the most unfair, based on our survey of litigants and considerable independent research.”

Congratulations, Colorado - the legal-establishment special-interest groups that spent so much time and money this Fall (violating campaign finance laws in the process) telling you that our state’s judicial system is “nationally recognized” were right (in that statement) after all.

For those of us who would like to see Colorado’s judiciary reformed and recognized for upholding the Constitution and individual rights, we would appreciate your continued support - comments (Sound Off!) and contributions are still needed. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.