Colorado Supreme Court Justice Alex Martinez unexpectedly announced earlier today (Wednesday, August 24th 2011) that he intends to resign his seat on the state’s highest court in order to take a job with the City of Denver as Manager of Safety.

Justice Martinez, who was retained in office November 2010 with the lowest percentage of “retain” votes for an incumbent state supreme court justice in Colorado history (59%, narrowly edging current Chief Justice Michael Bender’s 60% and Justice Nancy Rice’s 62% for “worst ever;” incumbent supreme court justices are typically retained with 75-80% of the vote) could have continued to hold office for another decade.

Clear The Bench Colorado considers it a win for Colorado - and the damaged reputation of the Colorado judiciary - that he will not.

At the risk of once again being called “the skunk at the garden party” by the Denver Post, we point out the “troubling legacy” of Justice Martinez’s tenure on the bench (much as the “troubling legacy” of resigning Chief Justice Mary Mullarkey was reviewed at the time of her resignation - by the Post).

Justice Martinez was in fact one of the most reliable members of the highly political “Mullarkey Majority”, joining in or writing all of the key decisions over the past decade that made a mockery of constitutional jurisprudence in Colorado:

• Joining in the 2003 Salazar v. Davidson majority, Martinez helped perpetrate a judicial power grab as the courts conducted Congressional redistricting despite clear constitutional language reserving that power to the ’General Assembly’ and defining the General Assembly as “consisting of a senate and house of representatives.”
• Justice Martinez authored the blatantly political decision to keep a citizen’s initiative to restrict taxpayer funding of services to illegals (Initiative 55) off the 2006 ballot based on an “elastic definition” of the single-subject rule.  Even the Denver Post (which vehemently opposed the initiative) decried the ruling.  Former Democrat Governor Dick Lamm panned the court as “Politicians in Black Robes“, saying “This is not justice; it is politics - of the worst kind.”
• Justice Martinez joined Justice Michael Bender’s politically-derived opinion allowing unions to skirt Colorado campaign finance laws in the 2008 CEA v. Rutt case, overturning the Colorado Court of Appeals which had held (correctly) that unions made illegal contributions when they coordinated their activities with a candidate’s campaign.
• Justice Martinez joined in Colorado’s version of the infamous Kelo eminent domain abuse case, the 2008 “Telluride Land Grab” (Telluride v. San Miguel), authorizing government taking of private property via eminent domain - despite contrary statutory language and despite the fact that the property taken was outside the jurisdiction of the seizing authority.
• Justice Martinez joined the majority in the Nov. 2008 Barber v. Ritter decision which declared that “fees are not taxes” as long as they are called “fees” - laying the groundwork for the notorious and regressive Colorado Car Tax (”FASTER”) tax (er, “fee”) increase.
• Justice Martinez joined the Mullarkey Majority on the infamous March 2009 “Mill Levy Tax Freeze” (Mesa County v. Colorado) ruling which deprived Coloradans of their constitutional right to vote on tax increases, and also eliminated constitutional protections for existing tax credits and exemptions (leading to the “Dirty Dozen” tax increases passed by the legislature the following year).
• In a case with significant and still unfolding implications for Colorado (Governor Hickenlooper recently described the potential consequences as “devastating”), Justice Martinez joined in overturning two lower courts holding (again, correctly) that educational funding policy was not a matter for the courts to decide in the 2009 Lobato v. Colorado case.
• Just days before the Nov. 2010 election, Justice Martinez joined “in one of those quirky rulings for which it is now notorious, reversed the conviction of a man who used another person’s Social Security number to obtain an auto loan.“
• After the election, it didn’t get any better, as Justice Martinez joined in creating a windfall for personal injury trial lawyers (the “ambulance-chaser” set) in the late-November (28th) 2010 Volunteers of America v. Gardenswartz case.  (That ruling was apparently the straw breaking the camel’s back for a national association evaluating state courts, which added Colorado to the list of jurisdictions nationally qualifying as a “judicial hellhole”).

Justice Martinez’s legacy on the Colorado Supreme Court is indeed “troubling” - as noted in the Evaluations of Judicial Performance published prior to the November 2010 election.

While we bear Justice Martinez no personal animosity (by all accounts, he’s a nice guy) and wish him the best in his future endeavors as Denver Manager of Safety, we greet his departure from the Colorado Supreme Court with favor and look forward with guarded optimism to welcoming a new Colorado Supreme Court justice dedicated to upholding the Colorado Constitution and restoring the rule of law.

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.

Continuing coverage of the pair of lawsuits seeking to have the courts decide educational policy in Colorado (the Douglas County school choice case, and the Lobato statewide educational funding case) over the weekend highlights the increasing role of the courts (as opposed to elected school boards, or the state legislature in whom constitutional authority for making education policy & resourcing decisions is vested) in deciding how - and under what conditions -  our children receive an education.

• Lobato v. Colorado school funding lawsuit:

Friday’s Denver Post published a guest commentary (”Lobato case is crucial to education“) that was nothing more than a special-interest plea for more money (that the state does not have) by the same people (a pair of school superintendants) who in one breath admit that “we find ourselves failing” but blame their failure solely on a “lack of resources” (never mind the successful accomplishments of other schools, particularly - but not only - charter and private schools less dependent on state funding).

The guest commentary fails utterly to substantiate a link between educational funding and performance, and fails to make the case for how “Colorado’s school funding system… is constitutionally inadequate” - since the Constitution leaves such questions of policy up to the state legislature, NOT the courts.

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).

The authors are correct in one regard:

In terms of the future of public education, Lobato is the most important case ever tried in Colorado.

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.

• Douglas County school choice lawsuit:

Saturday’s Colorado Springs Gazette editorial (”Backward voucher ruling favors oppression“) was a scathing indictment of Denver District judge Michael Martinez’ ruling to stop the Douglas County school choice program via permanent injunction, calling it “a decision to segregate and oppress.”

The editorial correctly points out a fatal flaw in Judge Martinez’ ruling, which ignored governing constitutional precedent (Zelman v. Simmons-Harris, No. 00-1751, decided 27 June 2002, U.S. Supreme Court) holding that voucher programs did NOT violate the U.S. Constitution’s Establishment Clause:

In Colorado, education money attaches to children. With each child who enrolls, a public school gets more than $6,000 for the year.

Vouchers issue the money to parents. At that point, the money belongs to the parent and child. They are free to spend it at almost any accredited school, religious or otherwise.

The key point - that educational choice belongs to the parent, not to the government (especially, not to the courts) - bears repeating:

Once state money is converted to a voucher and given to a child, it’s no longer the government’s. It belongs to the child, who is subject to the will of a parent or guardian. Parents and guardians have the right to choose whether their children are schooled in secular or religious settings.

The Gazette’s editorial concludes by endorsing an appeal to a higher court: “Let’s hope this ignorant, backward ruling is soon overturned.”

Sunday’s Denver Post editorial (”The latest hurdle for school choice“) chimed in with (surprising!) support for the Douglas County school choice program in principle, but sounded a more cautionary note on the prospects for appellate success:

And while Douglas County officials have said they intend to appeal Denver District Judge Michael A. Martinez’s ruling, the language of his opinion - along with the current makeup of the Colorado Supreme Court - does not leave much room for optimism.

The Post’s editors have a point - they certainly are intimately familiar with the political predilections of the Colorado Supreme Court, as they are the court’s current landlords (a possible factor in the Post’s non-coverage of last year’s judicial retention elections) - but if the DougCo school board first takes their case to the Colorado Court of Appeals, which has largely been a bright spot for actually upholding the law in Colorado - they may have a decent shot at success, and will in any case build up a good record for where the case may ultimately be decided in the U.S. Supreme Court.

Finally, this morning’s (Monday) Parker Chronicle (online) reported on the first step of the appeal process (”Douglas County School District launches appeal process“):

The district announced it filed a stay of the permanent injunction filed against its choice scholarship pilot program, designed to deliver school vouchers to 500 district students. The program was stopped on Aug. 12 with the decision by Denver District Court Judge Michael Martinez, who ruled it unconstitutional in part because it routes public education money to private, religious schools,
In a news release issued Aug. 19, the district calls its motion “the first legal step in a planned appeal” of Martinez’s ruling.

Clearly, the fight for choice - and control - of education in  Colorado’s courts is just beginning.

These cases highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering - let alone deciding - issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important - even vital - role to play in our society and system of government.  This is not it.

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

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

Ultimately, though - it’s worth the effort.

Predictably (indeed, Clear The Bench Colorado predicted both motion and grounds almost three months ago), Governor Hickenlooper and Attorney General John Suthers filed a Motion to Dismiss the anti-TABOR lawsuit (”Fenster’s Folly“) this week, noting that the lawsuit raises a ”political question” rather than a legal issue and is therefore (as the U. S. Supreme Court has previously ruled, several times) “non-justiciable” (meaning, a policy issue not to be decided by the courts).

The state’s Motion to Dismiss Plaintiffs’ Substitute Complaint echoes the same points and references raised in Clear The Bench Colorado’s review of the lawsuit when it was filed back in May of this year (”TABOR, citizen initiatives targeted by frivolous Fenster lawsuit“):

I. All the claims asserted by Plaintiffs present political questions that the U.S. Supreme Court has long held to be nonjusticiable. The Plaintiffs ask this Court to do something the Supreme Court has consistently refused to do: overthrow a state law for being too democratic.  Not only has the Court never done such a thing, it has repeatedly held that claims of this sort may not be entertained by federal courts. [Motion to Dismiss, p.5-6]

The Motion proceeds to highlight the danger of judicial activism that would inevitably result:

Beyond the “lack of judicially discoverable and manageable standards,” the claims presented here would entangle the Court in policy determinations it must avoid. [Motion at 8]

Noting further the hypocrisy of the plaintiffs’ argument that “ some direct democracy should be upheld, so long as it results in their preferred policy” [Motion at p.8] the state concludes

It would be difficult to imagine a more glaring example of “a policy determination of a kind clearly for non-judicial discretion.”  Baker, 369 U.S. at 216.

Noting the “narrow and limited authority” of judges, the Motion cites an earlier Federal court ruling:

Our entire System of Government would suffer incalculable mischief should judges attempt to interpose the judicial will above that of the [coordinate branches], even were we so bold as to assume that we can make better decisions.”) [ Pauling v. McNamara, 331 F.2d 796, 799 (D.C. Cir. 1963)]

Now where have we heard that before?

In fact, as the Motion further elucidates,

B. The Supreme Court has specifically held that claims like Plaintiffs’, based on citizen initiative power to tax, are nonjusticiable political questions [Motion at 11]

In a deliciously ironic twist, the Motion even cites the Colorado Supreme Court’s arrogation of legislative authority to the judicial branch in the Salazar v. Davidson redistricting case:

In Salazar, the court extended this rationale to include the courts.  79 P.3d at 1232-33, 1236-37.  Neither of these decisions has been disturbed.  See Colorado General Assembly v. Salazar, 541 U.S. 1093 (2004); Lance v Coffman, 549 U.S. 437 (2007) (refusing to address challenges to Salazar).  So even if Plaintiffs were correct that only a state’s “legislature” can enact laws, these cases require inclusion of the people (not to mention the judiciary) within that concept.

The remainder of the Motion addresses issues of Standing (in brief, the Plaintiffs don’t have any) to bring the case - which, while important, will most likely induce acute MEGO (”My Eyes Glaze Over”) in the typical (lay) reader and will not be recounted here.

Clear The Bench Colorado’s sole critique of the state’s Motion to Dismiss is that the state did not seek attorney’s fees from the plaintiffs under C.R.S. 13-17-101 (to offset costs to taxpayers) for filing what is clearly a ”frivolous, groundless, and vexatious” lawsuit.

Although an award of attorneys’ fees is rare (Clear The Bench Colorado won just such an award against “Colorado Ethics Watch” - CEW, pronounced “sue”, it’s what they do - one of only a few in the last decade) it can be done (although actually collecting on the judgement may take months, or years), when opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.

Such abuse of the courts for political posturing can and should be discouraged…

Additional references:
A more detailed (and highly informative) discussion of the constitutionality of the citizen initiative and referendum processes may be found in the Texas Law Review article, “A Republic, Not a Democracy?  Initiative, Referendum, and the Constitution’s Guarantee Clause” by Professor Robert G. Natelson.

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.

Citizens of Colorado hold elections every year to send representatives to different venues to consider and decide on policy (and allocate resources) for their children’s education: in odd-numbered years, for local school boards; in even-numbered years, for the state legislature, which has the constitutional authority to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.”

Yet ultimately, the decisions about how education is funded, and how schools are run, are being made in neither of these arenas, but in the courts.

News coverage this week has highlighted this fact with two prominent cases:

• Douglas County school choice voucher program
• Lobato v. Colorado education-funding lawsuit

In the Douglas County school voucher program, the issue before the court revolves around whether an elected school district board has “the broad authority to contract with private schools for the provision of a public education to public school students.” [per Education Policy Center]  One might think that making decisions about the provision of public education is precisely why county residents elect a school board, but apparently (at least in the view of the plaintiffs, and the courts in Colorado) those decisions are better made by appointed judges.

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

For additional information on this case, read:

• “Judge orders halt to Douglas County voucher program“, Denver Post (12 August 2011)
• “Judge halts voucher pilot for now“, Education News Colorado (12 August 2011)
• Denver District Court ruling, Larue v. Colorado Board of Education & Taxpayers for Public Education v. Douglas County School District

Lobato v. Colorado education-funding lawsuit

The case with far broader implications for public education in Colorado (and the state’s budget) is the Lobato v. Colorado education-funding lawsuit, which just wrapped up the 2nd week (in a trial expected to last 5 weeks total) of testimony and argument, also in Denver District Court.

In this lawsuit, plaintiffs allege (on the basis of a single phrase in the state Constitution, without regard for the actual assignment of decision-making authority and responsibility to the state legislature in that same phrase) that Colorado’s school-funding system is “unconstitutional.”  Plaintiffs seek an additional $3-4 BILLION per year in state spending (plus a near-term increase in school construction of some $18 Billion) to “fix” the alleged constitutional deficit.

One not need look very far (indeed, just across the border to Kansas) to see the potential for a fiscal and budgetary train wreck of epic proportions.  Indeed, as Governor Hickenlooper correctly points out, the consequences for Colorado would be “devastating.”

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).

Bottom Line: the lawsuit seeks money the state simply does not have, based on extremely tenuous grounds (a few words in the state Constitution calling for “thorough and uniform” education), and is improperly seeking to achieve these goals via the courts, not through the legislative branch or local school boards where such issues are properly decided.

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 recent articles:

• “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)

These cases highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering - let alone deciding - issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important - even vital - role to play in our society and system of government.  This is not it.

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

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

Ultimately, though - it’s worth the effort.

Although the drawing of Colorado’s Congressional district boundaries has been sent to the courts (since the state senate failed to consider redistricting legislation, abdicating their constitutional obligations), the Reapportionment Commission (charged with drawing state legislative districts) is meeting over the summer and will hear public testimony both in Denver (initially) and throughout the state (once a draft district map has been developed for review and comment).

The commission has divided the state into 7 regions for the purpose of hearing public testimony.  Public testimony on the first region to be considered (southern Colorado, including Pueblo, Saguache, Rio Grande, Huerfano, Las Animas, Alamosa, Mineral, Conejos and Costilla counties) was held on Tuesday, 31 May 2011.  Additional public testimony will be held by region on a weekly basis, continuing today (Monday 6 June) through the middle of July:

Meetings will be held in Hearing Room A of the Legislative Services Building, located at 200 E. 14th Ave. (just south of the Capitol building).  The public testimony portion of each meeting is scheduled to begin at 2:00 p.m.  and will also be broadcast over the Internet for those unable to attend in person.

Additional information is also available on the Reapportionment Commission website.

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 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 hot topic of Congressional Redistricting and state legislative district Reapportionment in Colorado - explaining the process and highlighting the differences in the process of drawing boundaries for Congressional and state legislative districts - on Backbone Radio (710 AM KNUS) Sunday evening, 8 May 2011.

Listen to the Backbone Radio podcast here (note: the discussion was interrupted briefly by an off-topic phone call referring back to another segment during which I was drawn into a discussion on the recent “Amycare” bill, SB 11-200 Healthcare Benefit Exchanges - and the subsequent El Paso County GOP “gag order” resolution to suppress criticism of the bill)

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 - “Public asked, again, to weigh in on Congress maps” - with a final opportunity for Citizens weigh in on competing redistricting maps by publicly testifying at the Congressional Redistricting Committee hearing scheduled for today (Thurs, May 5) at 2:00 p.m. in House Committee Room 112 at the Colorado Capitol.

The latest news?  Both the Pueblo Chieftain (”Redistricting“) and the Grand Junction Sentinel (”Redistricting redux“) editorialized in favor of the Republican redistricting map.

From the Pueblo Chieftain editorial:

The proposal, House Bill 1319 by Rep. David Balmer, R-Centennial, and Sen. Greg Brophy, R-Wray, is the best redistricting map yet to surface this year. Its first committee hearing is set for 2 p.m. today.

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 legislative district Reapportionment Commission was finalized yesterday afternoon with the press release announcing Colorado Supreme Court Chief Justice Michael Bender’s appointments.

Chief Justice Bender’s appointments are:

• Dolores S. Atencio - A Democrat from Denver in the 1st Congressional District. Atencio is a partner at Garcia Calderon Ruiz, LLP, and practices litigation and employment law.
• Mario M. Carrera - An unaffiliated voter from Parker in the 6th Congressional District. Carrera is the vice president and general manager of Entravision Communications Corporation.
• Robert D. Loevy - A Republican from Colorado Springs in the 5th Congressional District. Loevy is a professor of political science and American government at Colorado College.
• Steve Tool - A Republican from Windsor in the 4th Congressional District. Tool is a former state legislator where he served on the Joint Budget Committee.

Chief Justice Bender’s “final four” appointments join Governor Hickenlooper’s previously announced three appointments

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 …

and the earlier legislative appointments (four total: two from each chamber, from each side of the partisan aisle, for an automatic 2:2 tie):

• Senate President Brandon Shaffer (D) selected Senator Morgan Carroll (D-Aurora)
• Senate Minority Leader Mike Kopp (R) appointed attorney Mario Nicolais
• House Speaker Frank McNulty (R) chose former Rep. Rob Witwer (R) as his delegate
• House Minority Leader Sal Pace (D) 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.

Governor Hickenlooper’s press release announcing his 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.”

Chief Justice Bender’s appointments fulfilled the letter of Governor Hickenlooper’s request; in terms of party registration, the 11-member commission now consists of 5 Democrats, 5 Republicans, and one unaffiliated member.

However, appearances can be deceiving…

As previously noted, the single Republican appointed by Governor Hickenlooper, 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).

Similarly, one of the Republicans selected by Chief Justice Bender, former Rep. Steve Tool (R-Windsor) has a record of hewing rather closer to Democrat positions on the Taxpayer’s Bill of Rights (TABOR) and Healthcare Policy & Planning issues; although the his policy leanings may have less impact on reapportionment decisions, his continued activity as a lobbyist may influence his willingness to upset potential clients.

On the positive side - in a departure from the practice of his predecessor, the openly partisan former Chief Justice Mary Mullarkey - Chief Justice Bender’s appointments did at least achieve a relatively close partisan balance on the commission, at least pro forma.  The conduct of the commission over the next several months will demonstrate whether the apparent balance is borne out in practical terms, but the commission’s membership at least raises hopes that one side will not dominate and steamroller the other, and Colorado may end up with districts more representative of the state.

Some  have speculated that Chief Justice Bender’s willingness to ensure partisan balance on the commission may be due in part to the much greater scrutiny placed this year on Reapportionment Commission membership, the state legislative district reapportionment process in general, and - in particular - the role of the judiciary in determining Congressional and legislative district boundaries.

If so, then Clear The Bench Colorado has continued to provide a useful service beyond the judicial retention elections, which we certainly hope (and intend) to be the case.

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.

Since publishing an article (”Redistricting versus Reapportionment - the confusion continues“) nearly two weeks ago clarifying the different constitutional constraints and processes for drawing up Colorado’s Congressional and state legislative district boundaries, Clear The Bench Colorado has received renewed interest and feedback from multiple sources concerning the ongoing developments in each area (including gubernatorial and legislative appointments to the Reapportionment Commission) and the role of the courts in ultimately deciding our Congressional and state legislative district boundaries.

The terminology can indeed be confusing - particularly since many resources and references mix up some of the words and descriptive phrases.

An alert reader pointed out that the term “Apportionment” refers to the process by which the 435 seats in the U.S. House of Representatives are divided among the 50 states based on proportional shares of population, as enumerated in the decennial U.S. Census.  As a result of the 2010 Census, Colorado has been apportioned 7 Congressional districts.  Apportionment is a more or less purely mathematical process that is completely beyond the scope of our ability to influence, once census data has been collected and tabulated.  The Census Bureau has produced a video clip (your tax dollars at work) describing the process, included for your edification and entertainment:

The key distinction Clear The Bench Colorado wished to highlight - in very practical terms - is how the processes differ in Colorado.  Most importantly, far too many people - even politically actively and presumably savvy activists and officials - fail to understand the role of the legislature in both processes (more accurately, the very minimal role played by the legislature in drawing state district boundaries).

Redistricting is the term used to describe the process and act of re-drawing Congressional District boundaries.  In Colorado, this is accomplished by an act of legislation (”Redistricting Bill”) passed by the Colorado General Assembly and signed into law by the Governor following the decennial census, under the provisions of Colorado Constitution Article V, Section 44:

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

Congressional Redistricting is a mostly political process that we (as Citizens, activists/officials, and/or legislators) have the MOST opportunity to influence - directly through gaining majorities in the General Assembly, influencing the vote and/or draft maps, and (currently) via the public arena by weighing in on the discussion to help shape public opinion (and provide electoral pressure).

Reapportionment is the term commonly used to describe the process of re-drawing state legislative boundaries.  (Some references - even some statutory or legal references - use the term “redistricting” interchangeably, which adds to the confusion).  However, the reapportionment of state legislative districts is governed by different constitutional language (Colorado Constitution Article V, Section 48) and conducted according to a completely different process by different participants.

Most importantly, following a 1974 ballot measure (Colorado Amendment 6), constitutional authority for drawing up state legislative districts shifted from the legislature to a Reapportionment Commission with members appointed from each of the three branches of Colorado government.  In contrast to Congressional Redistricting, the state legislature has an extremely limited - almost inconsequential - role.  (For details, review ”Redistricting versus Reapportionment - the confusion continues“)

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.

Drawing state legislative districts - for the sake of clarity and distinction, “Reapportionment” - is a highly (but very indirectly) political process over which Citizens and elected officials have very little influence (and for which there is very little accountability).  However, Clear The Bench Colorado believes that educating people on the difference, and raising public awareness, can help to get a more balanced and fair approach to the process - particularly when SO much of the ultimate power rests in the hands of a single individual (the Chief Justice of the Colorado Supreme Court).

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.

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.