Colorado Judges
Colorado Supreme Court to hear 1st Amendment challenge to state’s campaign finance laws
The Colorado Supreme Court hears arguments tomorrow (Weds, 8 May 2013) in a 1st Amendment challenge to the state’s campaign finance laws (pursuant to a request to clarify the “scope & meaning” of Colorado campaign finance laws in an order issued by a Federal judge late last year). According to a statement issued last Fall by the Center for Competitive Politics,
Senior Judge John L. Kane of the United States Court for the District of Colorado asked the state Supreme Court to “provide clear guidance… as to the scope and meaning” of provisions that have been challenged under the First Amendment to the US Constitution.
The request for clarification to the Colorado Supreme Court was issued due to a lawsuit challenging the state’s campaign finance laws as an unconstitutional violation of free speech rights under the First Amendment. The case, Coalition for Secular Government v. Gessler, No. 12-cv-1708, was filed in Federal court earlier in 2012.
The legal challenge raises important questions about political free speech, as summarized in the article, “Colorado’s Opportunity to Protect First Amendment Rights” (earlier published as a guest commentary on the Clear The Bench Colorado judicial accountability organization’s website) and as listed below.
Questions certified by the Federal judge (asked of the Colorado Supreme Court for clarification) include:
- Does the Colorado Constitution treat money spent on a policy paper, including one that suggests how the reader should vote on a ballot initiative, as the equivalent of money spent on political ads?
- Does the state constitution entitle policy papers distributed over the internet to be treated in the same way as newspaper and magazine editorials for purposes of campaign finance law?
- In light of a federal decision declaring certain groups too small to be regulated by the state of Colorado, what is the monetary trigger for an issue committee under the state constitution? Is it the roughly-$1,000 mentioned in the federal opinion? The $3,500 contemplated by CSG? The $200 mentioned in the constitution itself? Or another number altogether?
Colorado’s campaign finance laws are frequently used by well-funded special-interest groups as a tool to suppress political speech by grassroots organizations – facilitated by the odd fact that enforcement of the law is NOT prosecuted by the state, but rather by the individual (or organization) filing the complaint (effectively, it takes lawyers, time, and money to hold violators accountable for breaking the law).
Attempts at reforming Colorado’s campaign finance laws are invariably met with resistance from special-interest groups, many of whom are not subject to the same reporting and disclosure requirements that they support imposing on others.
Fortunately, some have fought for the preservation of political free speech, and have won some hard-fought victories in court. One such recent court case originating in Colorado, Sampson v. Buescher, resulted in a Federal court (10th Circuit) holding certain sections of Colorado Constitution Article XXVIII in violation of the United States Constitution. Specifically, provisions of Article XXVIII (the $200 trigger on reporting contributions) were held to unduly burden the rights of free association and free speech protected under the 1st Amendment, among our most cherished rights.
The Center for Competitive Politics statement sums it up nicely:
“For years, organizations in Colorado have been unsure how to comply with Colorado’s campaign finance rules, or have been subject to politically-motivated complaints for making minor errors,” CCP Legal Director Allen Dickerson said. “Some choose not to speak at all in the face of this situation. The Colorado Supreme Court now has the option of bringing a measure of predictability to some of the state constitution’s more difficult provisions.”
Our View:
Clarification of the confusing cloud of campaign finance laws in Colorado that challenge the Constitution, chill free speech, and curtail civic participation is not only welcome – it’s long overdue.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Colorado Legislators, CUT (Colorado Union of Taxpayers) file Amicus Brief opposing “Fenster’s Folly” frivolous anti-TABOR lawsuit
The frivolous, groundless, and vexatious politically-motivated lawsuit attempting to overturn a Colorado Constitutional Amendment (the Taxpayer’s Bill of Rights, colloquially known as “TABOR”) filed in Federal court in May 2011 – and, after several rounds of motions and counter-motions, allowed to proceed to trial in July 2012 (despite clear constitutional precedent disallowing challenges on the basis of the “Guarantee Clause”) – entered a new phase today with the filing of an Amicus (“friend of court”) brief in the state’s interlocutory appeal to the 10th Circuit Court of Appeals.
The Amicus Brief, filed by Colorado legislators and the Colorado Union of Taxpayers (CUT) in opposition to the frivolous Fenster lawsuit, challenges the plaintiffs’ (several anti-TABOR current and former state legislators) lack of standing to file, underlines the fact that the lawsuit’s claims present a “nonjusticiable political question” and highlights the importance of preserving the separation of powers that could be jeopardized by a court ruling striking down the TABOR constitutional amendment.
Some key points:
- The General Assembly’s power to propose taxes has always been subject to numerous constitutional limitations, qualifications, and exemptions.
- And the people retain ultimate veto authority over all acts of the General Assembly, including taxation and spending.
Id. art. V, § 1 (“The legislative power of the state shall be vested in the general assembly . . . but the people reserve to themselves the power . . . at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.”).
- TABOR’s primary restraint on the legislature is procedural, not substantive. … It is this element of democratic accountability and constitutional restraint that Plaintiffs challenge in this litigation.4
- The district court erred by determining that the claims here, all based on the Guarantee Clause, do not present a nonjusticiable political question.8
Where the Guarantee Clause is concerned, the Supreme Court has twice unequivocally shut the courthouse doors, in order to prevent “the inconceivable expansion of the judicial power and the ruinous destruction of legislative authority in matters purely political which would necessarily be occasioned by giving sanction to” Guarantee Clause claims in federal court. Pacific States Telephone & Telegraph Co. v. State of Oregon, 223 U.S. 118, 141 (1912); see also Luther v. Borden, 48 U.S. 1, 42 1849).9 The district court brushed aside these precedents because it considered them fact-bound. Neither opinion supports such a conclusion.10
- If the district court were to conclude that TABOR renders the Colorado Constitution unrepublican, that judgment “would necessarily affect the validity, not only of the particular statute which is before us, but of every other statute passed in [Colorado] since the adoption of [TABOR].” Pacific States, 223 U.S. at 141. The Constitution vests Congress with the sole authority to judge whether the Guarantee Clause has been satisfied in order to avoid the constitutional crisis that would result from enlisting the federal courts.
- The concept of justiciability, whether embodied in the standing or political question doctrines, is intended to preserve the separation of powers. … This fundamental concern about the “the proper—and properly limited—role of the courts in a democratic society,” Allen, 468 U.S. at 751, makes swift dismissal of the instant case critically important.
- The doctrine of separation of powers applies particularly to the judicial branch, preventing it from involving itself in potentially political disputes.
As previously noted, the lawsuit is lacking in legal merit, and constitutional case law precedent (including two relevant Supreme Court of the United States [SCOTUS] decisions, as also noted earlier) is clear that the “Republican form of government” language in the Constitution’s “Guarantee Clause” (United States Constitution, Article IV, Section 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government“) is non-justiciable (meaning, not subject to determination by the courts). Constitutional constraints on government are, by definition, constitutionally allowed – failing to dismiss this clearly frivolous lawsuit would cost Colorado taxpayers hundreds of thousands in legal fees and costs, and will almost certainly ultimately end up before the United States Supreme Court since overturning a state constitutional amendment by judicial fiat would have immense implications for the citizens’ initiative process and the right of the people to limit government power by constitutional limits nationwide.
If “We The People” cannot set constitutional limits on government power, then the very founding principles of this nation – indeed, the foundations of Liberty itself – are at risk.
Reference state’s Motion to Dismiss Plaintiffs’ Substitute Complaint (which was filed back in August by Governor Hickenlooper and Attorney General Suthers – also, analysis of the state’s Motion to Dismiss).
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.
Colorado State University follows University of Colorado lead in implementing “mini-Gun-Ban” via “waiver” of legal rights
Following the March 2012 Colorado Supreme Court ruling which rejected the University of Colorado’s ban of licensed concealed-carry of firearms on campus (the “CU Gun Ban”), the University of Colorado (after face-saving public meetings to solicit community input – the recommendations of which were ignored) implemented policies designed to end-run the court’s ruling and maintain as much of a “gun ban” in place as possible, under the guise of “contractual stipulations” in student housing and campus event ticketing policies.
Despite citizen input and legal advice advising the university against imposing a limited gun ban, the CU administration – supported by a majority of Regents on the governing oversight Board – proceeded with implementing policies in violation of the court’s ruling and state statute on the universal application of concealed-carry permits:
The court upheld the Colorado Court of Appeals April 2010 ruling that the CU gun ban policy violates “the clear letter and intent of the statute authorizing statewide standards and universal application for concealed-carry permits:”
18-12-214. Authority granted by permit – carrying restrictions.
(1) (a) A permit to carry a concealed handgun authorizes the permittee to carry a concealed handgun in all areas of the state, except as specifically limited in this section.
As Clear The Bench Colorado warned last summer, allowing CU’s “mini-Gun-Ban” policies to stand – getting people to sign away legal rights as a condition of receiving a good or service – sets a dangerous precedent likely to be copied by other institutions (and applied to other areas of activity).
Recent news of similar policies now being implemented at Colorado State University confirm the validity of that warning.
The CSU Health Network (providing healthcare services for CSU students, staff, and faculty) recently promulgated a set of policies seeking to impose a waiver of legal rights as a condition of receiving medical treatment:
All rights under any state or federal law or constitutional related to the use or possession of firearms (i.e. U.S. Constitution, Second Amendment) are voluntarily and expressly waived in exchange for treatment at the Health Network. Failure to comply with this prohibition may result in further action under applicable law or University disciplinary procedures.
The CSU policies follow the same model first promulgated by the University of Colorado – seeking to impose a waiver of legal rights under terms of a “service contract”, as “a condition of receiving services”:
All persons accessing services through the CSU Health Network engage in a treatment agreement with health care providers.
The CSU policies specifically target the legal rights of concealed-carry weapons permit holders:
This prohibition includes all weapons possessed by persons with a lawful permit to carry a concealed firearm pursuant to C.R.S. 18-12-201 et. seq.
Our state’s leading institutions of higher education – beneficiaries of both direct (via higher education general fund expenditures) and indirect (via student loan, grant, and College Opportunity Fund tuition subsidies) taxpayer spending – are violating state law and the legal rights of Colorado citizens.
Campus Gun Ban policies needlessly endanger the safety of students, staff, faculty, and visitors by putting them at greater risk of violence, as ”gun free zone” = “target-rich environment” for criminals.
Allowing responsible adults to exercise a fundamental constitutional right – affirming the right of licensed adult concealed-carry permit holders to responsibly exercise their inherent right of armed self-defense – is not only good law, it is good policy.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Colorado Supreme Court Chief Justice Bender delivers final ‘State of the Judiciary’ address before Colorado legislature
Colorado Supreme Court Chief Justice Michael Bender delivered his final ‘State of the Judiciary’ address before the Colorado legislature on Friday (11 January 2013).
[Justice Bender faces mandatory retirement as he reaches the age of 72 next year]
Justice Bender’s speech [read full text here] addressed 3 major themes:
- the importance of citizen’s trust in the rule of law in our democracy.
- the way in which the judicial branch in Colorado furthers the rule of law for our citizens.
- the importance for the courts and the legal community to understand the needs of the public they serve and to collaborate to create programs that address those needs.
Justice Bender’s opening remarks are notable for his nod to principle:
Trust in the rule of law distinguishes our society from many others around the world. When the blind Chinese lawyer and activist, Chen Guangcheng, was allowed to leave China to study in the United States, he noted that China does not lack laws, but it lacks the rule of law. The legitimacy of government depends on the fair, impartial, and reliable administration of the laws.
Courts serve the people of the state by resolving disputes, protecting individual rights, and delivering justice in criminal and civil cases. To ensure a just society Courts must tailor the fair, effective, and efficient delivery of justice to fit each individual case. This mission requires us not only to reach a fair and just outcome but also to do so in a way that is perceived as being fair to all sides. The perception of fairness is as important as the fairness of the outcome.
Clear The Bench Colorado not only embraces, but actively advances the principle of “rule of law” – but notes that Chen Guangcheng’s description of China (as a nation that “does not lack laws, but it lacks the rule of law”) might be taken to apply equally to what’s becoming of the United States.
Justice Bender claims that the Colorado judiciary “reflects [Daniel] Webster’s ideal” – that
“justice is the great interest of man on earth. It is the ligament which binds civilized beings and civilized nations together.”
As evidence, he cites “[T]hree features [that] distinguish our judiciary”
- strong bipartisan support from the General Assembly
- central financing of courts and probation systems
- non-partisan merit-based selection process and “rigorous” evaluation of judicial performance by “independent” commissions.
However, Bender presents a flimsy case for an “ideal” Colorado judiciary.
“Bipartisan” support and central financing are irrelevant to whether (or not) the judiciary achieves the standard of “fairness” and upholds the rule of law.
Moreover, Colorado’s “merit-based” judicial selection process falls short of achieving the standards of transparency and accountability we should expect from our vitally important 3rd branch of government, and remains controlled by legal-establishment special interests out of public view.
Even worse, Colorado’s official system of evaluating judicial performance is anything but “rigorous” – the evaluation commissions, having no requirement for partisan balance (in contrast to the judicial selection commissions) are not infrequently dominated by one party and/or by special-interest groups, giving rise to charges of bias, and more broadly panned for failure to provide substantive evaluations of judicial performance, as noted in this commentary by a former performance review commissioner:
There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters. If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do. Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations. Some commentators and observers have denigrated the narratives as a “rubber stamp” exercise for retaining judges.
Chief Justice Bender wrapped up his address by listing a number of initiatives that “tap into existing community resources and sometimes private dollars to leverage public funding,” including an increase of “problem-solving courts” (from 61 to 72), a “civil action pilot program” for resolution of business disputes, along with some personnel and administrative efficiencies achieved statewide (including a court-run civil e-filing system). He closed with effusive praise for the legislature’s “bipartisan support” for the new Colorado Judicial Center – funded by taxpayers to the tune of $258M by a combination of debt (er, “non-debt”) and new “fees” to access the courts.
Actions speak louder than words; and although Bender’s speech gives lip service to the primacy of the rule of law, his actions on the bench have demonstrated the opposite. Indeed, Bender has been one of the most egregious perpetrators of putting personal views (his own) above the letter of the law.
The contrast between rhetoric and reality is the true “State of the Judiciary” in Colorado.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
2012 Year in Review: Colorado Courts Continue to Play Politics
Colorado Courts Continue to Play Politics in 2012…
Another tumultuous year has come and gone for the Colorado judiciary – and once again, Colorado Citizens and taxpayers have been hammered by the gavels of Colorado judges pounding their personal preferences over the will of the people – and the rule of law.
2012 saw the advancement of a frivolous, groundless, and vexatious politically-motivated lawsuit attempting to overturn a Colorado Constitutional Amendment (the Taxpayer’s Bill of Rights, colloquially known as “TABOR”) through the Federal courts (with oral arguments on a Motion to Dismiss in February, and proceeding to trial on a ruling in July). The District Court judge still has not issued a ruling in the case, but whatever the ruling, the case is almost certain to be appealed, and may ultimately end up before the U.S. Supreme Court.
Some good news came from the Colorado judiciary in March, as the Colorado Supreme Court upheld the Colorado Court of Appeals in striking down the CU Gun Ban. Unfortunately, the University of Colorado administration introduced policies designed to circumvent the ruling shortly thereafter, and the self-defense rights of Colorado citizens within the CU demesne continue to be threatened with the backing of many (if not most) of the CU Regents.
More good news in April, as a (Federal) court struck down Colorado’s unconstitutional “Amazon Tax” (as predicted by Clear The Bench Colorado Director Matt Arnold in testimony before its passage in 2010).
In May, the Colorado Car Tax (a.k.a. FASTER vehicle registration “fee”) was challenged in court as a violation of the state Constitution (the case is still winding its way through the courts).
In September, the Colorado Supreme Court rejected Ward Churchill’s attempt to force the University of Colorado to reinstate him (Churchill recently announced his intent to appeal all the way to the U.S. Supreme Court).
Clear The Bench Colorado helped Colorado voters to “Know Your Judge” with substantive evaluations of judicial performance prior to the November elections – the ONLY source of reliable, substantive information on judges appearing on the ballot.
Remaining statewide elections were significantly impacted (if not effectively pre-determined outright) by the results of the Colorado Supreme Court’s December 2011 rulings on the reapportionment of state legislative districts – leading to lopsided majorities for Democrats in both chambers of the state legislature, despite actually receiving fewer votes overall.
Colorado courts continued to be a central battlefield for Education policy, as the ‘Lobato’ case advanced to the Colorado Supreme Court in the “Super Bowl of school funding litigation” and the Douglas County school choice voucher program case advanced to the Colorado Court of Appeals. (Interestingly, the Denver District Court judges involved in each case – Judge Sheila Rappaport in the ‘Lobato’ case, and Judge Michael Martinez in the Douglas County school choice case – are both scheduled to appear on the 2014 ballot).
Cases such as Lobato (particularly Rappaport’s biased ruling) and the politicized nature of the court’s involvement in the congressional redistricting and state legislative reapportionment 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. Deciding issues of policy – instead of fairly and impartially upholding the law – 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.
Merry Christmas from Clear The Bench Colorado!
Merry Christmas from Clear The Bench Colorado!
In the spirit of the season today, no commentary or analysis on Colorado Supreme Court rulings that have taken money out of your pocket, eroded your constitutional rights, or usurped the powers of other branches of government. No comparisons of the Mullarkey Majority to the Grinch Who Stole Christmas…
Matt and celebrity spokespup Nola (above) just want to wish everyone a happy time at their not-yet-seized-by-eminent-domain homes and a safe, painless drive in their FASTER-taxed cars to Grandma’s house (assuming she can still afford the increased taxes to live there, for now and in Christmas future). Be merry and don’t think about taxes for now (although they’ll beat you up if you don’t hand it over).
Enjoy your Christmas present, but please act to save your Christmas future -
Continue to support Clear The Bench Colorado with comments (Sound Off!) and contributions.
Freedom isn’t free – nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Friday Funnies: …and a Leftist Judiciary! (reprise, again)
Welcome to the 2012 Christmas edition of the Clear The Bench Colorado Friday Funnies!
Another tumultuous year has come and gone for the Colorado judiciary – and once again, Colorado Citizens and taxpayers have been hammered by the gavels of Colorado judges pounding their personal preferences over the will of the people – and the rule of law.
Last year closed with Colorado courts deciding the boundaries for Congressional districts (after the state senate reprised the 2000 playbook of abdicating responsibility to send it to the courts) and state legislative districts (following the Colorado Reapportionment Commission’s public hearings on re-setting the boundaries of our state legislative districts over the summer), both of which played a prominent role in determining Colorado’s electoral destiny in 2012.
Colorado courts were also a central battlefield for Education policy, as one Denver District judge threw out Douglas County’s attempts to enable greater school choice, and another Denver District judge declared the state system of funding schools “unconscionable” while advancing the power of the courts to determine “proper” levels of school funding (despite the Constitution’s delegation of that power to the legislative branch) – although that decision is likely to be overturned after an expensive – and long - appeal to the Colorado Supreme Court.
The first stages of the court appeal seeking to preserve school choice concluded last month (Nov 2012) with oral arguments before the Colorado Court of Appeals (a ruling by the 3-judge panel isn’t expected until early next year, most likely late January or February).
Meanwhile, the ‘Lobato’ school funding lawsuit – called the “Super Bowl of school funding litigation” – continues to slog its way through the courts as well.
Earlier in the year, after two years of legislative inaction failed to repeal or roll back the unconstitutional and unpopular tax increase, the ‘FASTER’ Colorado Car Tax was challenged in court as a violation of the Colorado state Constitution (specifically, Article X, Section 20 – Taxpayer’s Bill of Rights, TABOR).
Another, wider-ranging challenge to TABOR is still being fought out in Federal court: the notorious “Fenster’s Folly” frivolous anti-TABOR lawsuit (which not only challenges TABOR in particular, but more generally citizens’ right to petition under a flawed reading of the “republican form of government” language in the Constitution’s “Guarantee Clause” (United States Constitution, Article IV, Section 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government“) which multiple U.S. Supreme Court cases have ruled non-justiciable (meaning, not subject to determination by the courts).
One major ruling by the Colorado Supreme Court DID uphold the law – and the rights of Colorado citizens – when striking down the University of Colorado’s illegal gun ban (March 2012). Unfortunately, the CU administration (backed by the CU Board of Regents) moved almost immediately to circumvent the court’s ruling and continue to violate state law by promulgating policies banning guns in certain areas (not authorized by statute) and additional gun ban legislation (unfortunately backed by many on the CU Board of Regents) to further restrict and roll back hard-fought self-defense rights is coming.
Finally, to close out the year, the Colorado Supreme Court and Court of Appeals moved into the palatial new ‘Colorado Judicial Center’ (at significant taxpayer expense and incurring massive new “non-debt” debt, without required voter approval) just one week before closing for the holidays.
All of these issues were comprehensively documented by Clear The Bench Colorado over the last year – while the “mass media” and the majority of the state’s “news” organizations gave them short shrift.
Clear The Bench Colorado also continued the public service of providing comprehensive, well-referenced evaluations of judicial performance in 2012 – again, in contrast to the “official” taxpayer-funded “Blue Book” rubberstamp “reviews” disseminated at great expense (and, when put out at polling locations, in violation of state law) by the Colorado Office of Judicial Performance Evaluation.
Although remaining mindful that what’s at stake – holding our judiciary accountable for serial violations of our constitutional rights (to vote on taxes, even when taxes are called “fees”; defend our property against unjust seizure; bear arms in self-defense; and too many others to list) is serious business, all work and no play makes Matty a dull boy.
Although still awaiting payment over two year later after “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) was once again ordered to pay Clear The Bench Colorado thousands of $ in legal fees (owed since the judge’s original ruling in July 2010 found CEW’s complaint to be “frivolous, groundless, & vexatious”) brings a rueful chuckle, the following video (even if focused on the national level) elicited a hearty laugh:
…and a Leftist Judiciary!
While still afflicted with the (black-robed) ghosts of Christmas past in our Christmas present, we can still act to save our Christmas future. Continue to support Clear The Bench Colorado with comments (Sound Off!) and contributions. Freedom isn’t free – nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Colorado Supreme Court, Court of Appeals move into palatial new digs at the Ralph L. Carr Colorado Judicial Center
The Colorado Supreme Court and Colorado Court of Appeals take up residence in a brand-new, multi-million dollar facility a block away from the Colorado Capitol today (Wednesday, 19 December 2012) -
a mere two days before the “end of the world” supposedly “predicted” by the Mayan calendar.
The new “Judicial Center” is an impressive edifice (as shown in the picture below and in a photo gallery, both published by the Denver Post last week).
The demolition of the old court building in August 2010 was heralded by the Denver Post with another impressive front-page photo under the headline, “Make Room for Justice!“ along with a story inside (“Denver & The West” section – Colorado judicial building puts on show, disappears). Interestingly, although the Post article noted the cost of the demolition ($850,000) it completely failed to mention the cost of the replacement “judicial complex” (possibly out of concern for the sensibilities of the Post’s largest paying tenant – the Colorado Supreme Court paid the Denver Newspaper Agency $1.6 Million per year over the last three years for their temporary ‘digs’ while the new complex was being built).
Interestingly, almost every other contemporary news report DID mention the cost to taxpayers
($258 million).
“Make Room for Justice” or “Justice Held For Ransom?”
Unfortunately, NONE of the news coverage provided any information on just where all of this money to fund the massive new “judicial complex” came from (ultimately, of course, from your pockets – but the details are interesting).
Part of the funding for the project (authorized back during the 2008 legislative session under SB08-206 State Justice Center) came from an unprecedented expansion in use of “Certificates of Participation” (in the words of a state legislator who shall remain nameless, “debt pretending not to be debt”). In fact, the legislative language specifies that the debt is simply re-defined as ‘not-debt’ by declaring that
the obligations shall not be deemed or construed as creating an indebtedness of the state within the meaning of any provision of the state constitution or the laws of the state of Colorado concerning or limiting the creation of indebtedness by the state of Colorado and shall not constitute a multiple fiscal-year direct or indirect debt or other financial obligation of the state within the meaning of section 20 (4) of article X of the state constitution. [SB08-206, Section 2, (2) (b), page 5]
Former Colorado Treasurer Cary Kennedy was so proud of the ‘not-debt’ incurred to finance the construction of the new judicial complex (and new state history museum) that she trumpeted the great ‘success’ in a press release:
The successful financing of over $338 million in Certificates of Participation earlier today to build the new Colorado History Center and the Ralph L. Carr Justice Complex completed one of the largest sales of Build America Bonds to date, announced State Treasurer Cary Kennedy
“Crazy on Court Fees”
However, by far the greatest proportion of funding for the new judicial complex comes in the form of increasing the cost of access to justice by Colorado citizens due to substantial increases (including the creation of an entirely new category – the “Justice Center Fund” fee) in court fees.
Want to file a case in civil court, defend yourself against a claim, petition to change your name, or request a civil protection order? It’ll cost you an extra $37 for the “Justice Center Fund” – per filing. Small claims court filings? An extra $11 for the “Justice Center Fund”, thank you.
Oh, and that’s just in your local county court – which may be hundreds of miles away from the recently completed “Mullarkey Monument” (actually, even the legislature reportedly balked at naming the center after Mullarkey when some legislators dug in their heels and insisted upon another name; honoring former Republican Governor Ralph L. Carr – truly, a principled politician – but naming the center after him is a rather ironic twist). Need access to justice at the District Court level or higher? Be prepared to cough up even more in “fees” for the ”Justice Center Fund” – most actions in District Court now cost an additional $68 for the fund, some as much as another $136 or even $204 each, at any of the various District Courts (22 in all) across Colorado, still miles from the as-yet unbuilt Colorado Judicial Complex.
Even “domestic relations” cases across the state are now more expensive thanks to the ”Justice Center Fund” fees – legal separation, annulment, divorce will each cost another $26; child custody registration or child support order, another $15 just for financing the construction of the massive new judicial complex.
Death in the family? That’ll cost you extra, too – another $15 ”Justice Center Fund” fee for probate filings, estate fees, conservatorship, etc. etc. Anywhere in the state – all of Colorado now enjoys the privilege of contributing to this marvelous new edifice.
Even an “insufficient funds” return check fee for court payments (already $40, which is double what any private entity is allowed to charge) gets another $10 fee tacked on for the ”Justice Center Fund” (truly, adding insult to injury).
Need to fight a case up to a higher court? Pretty much ANY actions at the Colorado Court of Appeals now costs an additional $68 fee for that ”Justice Center Fund.” Water Court? Same story – almost every activity listed incurs an additional $68 for the ”Justice Center Fund” (some activities, such as applying for Change of Water Right or Plan for Augmentation, cost double – $136).
Ironically, the ONLY court where you WON’T have to pay an extra ”Justice Center Fund” fee to pursue justice? You guessed it – the Colorado Supreme Court, who’s “home” is being financed by all these “fees” in the first place.
(View the full list of Colorado Court Fees – featuring the ”Justice Center Fund” fee)
It has been said that “if you’re not outraged, you’re not paying attention.” Since “fees” are only supposed to be charged to offset the cost of providing or administering a voluntarily accessed good or service, the proliferation of new “fees” to finance the construction of palatial new digs for the Colorado Supreme Court – holding the administration of justice at county and District courts across the state hostage to this massive new monument to judicial supremacy – is questionable at best, particularly at a time when state resources are already strained and Colorado Citizens are being forced to cut back on personal spending. Aren’t we supposed to be asked before the government in Colorado can take more of our hard-earned dollars? Perhaps that’s why the Colorado Supreme Court’s majority decision in the 2008 Barber v. Ritter “Fees aren’t really taxes” case – expanding the use of “fees” by government entities across the state as a means of evading constitutional protections against tax increases – carries the taint of self-interest.
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.
CTBC Analysis of Oral Arguments in Douglas County School Choice Voucher Program at Colorado Court of Appeals
The Colorado Court of Appeals held oral arguments yesterday (Monday, 19 November) on a challenge to Denver District Court Judge Michael Martinez’ ruling in the Douglas County Choice Scholarship Program trial. The appeal, led by the Douglas County School Board and joined by the state of Colorado and several affected families, was held at the Colorado Supreme Court/Colorado Court of Appeals hearing room at 100 W. Colfax Avenue, Denver 80202 (the Denver Post building).
In that ruling, Judge Martinez decreed that the Douglas County Choice Scholarship Program violated multiple sections of the Colorado Constitution (Article IX, Section 7 Aid to Private Schools, Churches, Sectarian Purpose, Forbidden, Article IX, Section 8 Religious Test and Race Discrimination Forbidden Sectarian Tenets, and Article II, Section 4, Religious Freedom) as well as the state school financing act.
Monday’s oral arguments before the Colorado Court of Appeals, in which each side had 30 minutes to make their case, were recorded and posted online shortly after the hearing.
Attorney for the appellants (Douglas County School Board) Eric Hall opened with a description of the school choice scholarship program that touched upon the key legal issues at the heart of the appeal:
The program offers an additional educational choice to students who have been enrolled in Douglas County Public Schools for at least a year. No family must participate in it; and it in no way hurts the opportunity of any student to receive a free public education.
Key points:
- additional educational choice (not replacing constitutionally mandated “free public education”)
- no family must participate (program participation is non-compulsory)
- no harm to or diversion of resources from existing system of free public education
Hall continued:
Through the Choice program, the district offers aid to parents, on a neutral basis, without regard to religion. As a neutral program, it neither favors nor disfavors any private school, religious or non-religious.
Key Point:
The test of constitutionality established in the 2002 U.S. Supreme Court Zelman case allows education vouchers to be used for schools including religious schools IF the overall program is neutral towards religion and IF the choice to attend religious schools is entirely left up to the parent:
This Court’s jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice. See, e.g., Mueller v. Allen, 463 U. S. 388. Under such a program, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients not the government, whose role ends with the disbursement of benefits.
The fact that the program disburses funds directly to the parent, to use towards any school they choose, also addresses the Colorado constitutional prohibition on “direct aid” to religious institutions (Article IX, Section 7 Aid to Private Schools, Churches, Sectarian Purpose, Forbidden) since the aid is to the parent/student, not directly to the school.
Hall then addressed the provisions of Colorado’s School Finance Act, highlighting the aspect of local control (Section 104(1)(a)):
Finance Act funds flow to local districts… the amounts and purposes for which such Finance Act means are budgeted and expended shall be in the discretion of the district.
Key Point:
The Douglas County School Board has the statutory authority to decide on how to allocate school funding dollars within the district.
[At this point, Judge Jones asked if the School Finance Act provided for standing of individuals to bring suit under the provisions of the Act; Hall responded that the Act does not provide such standing (indeed, explicitly rejects it) and noted that Denver District Court Judge Michael Martinez had erred in allowing individuals standing to bring a Finance Act claim.]
Hall then characterized opposition to the School Choice Scholarship program as being based on objections to the fact that
private and religious schools can participate… they assert public funds can’t be spent in this way.
Hall noted that a 1982 Colorado Supreme Court case (Americans United) held that “public funds can be spent at private and religious schools by means of a neutral program of private choice.”
[Judge Jones then brought up a question (based on a number of cases, including Lemon, Weaver, and Mitchell) concerning the "influence of overtly religious education on younger kids... being inconsistent with what we want to do with public monies."
Hall responded that, based on the Weaver case, "any sort of indoctrination doctrine is not only discarded, but unconstitutional" (as a 1st Amendment violation)]
Hall concluded by noting that the court “should apply the Zelman test” – with “genuine private choice” as the key criterion, recognizing that any incidental benefits to institutions with a religious character are attributable to parent choice, not impermissibly mandated by the program itself, and noted the existence of several state programs providing funds to schools with a religious component:
“Public funds can and do flow to institutions with a religious component” under current state practice and law.
Plaintiffs attorneys divided their time in oral arguments between addressing constitutional/religious issues and School Finance Act issues.
Attorney Matt Douglas first addressed the constitutional/religious objections to the Douglas County School Choice Scholarship program.
Douglas began by asserting that the program violates several specific articles of the Colorado Constitution with respect to the establishment of religion. He further asserted that the appellants “must prove that the trial court was wrong on ALL of the constitutional provisions” to overturn that court’s judgment.
Douglas stated that the Colorado Constitution “specifically prohibits state funding of religious education” (under Article IX, Section 7 Aid to Private Schools, Churches, Sectarian Purpose, Forbidden and Article II, Section 4, Religious Freedom).
Douglas characterized the routing of educational aid through a charter school construct and via direct disbursement to the parents as a “sham” designed to “get around the plain language of the Colorado Constitution.”
[Judge Graham at this point asked, "Isn’t this program facially neutral?" (When told "no" he followed with "can the court inquire as to nature of religious beliefs if the program is facially neutral? Isn't that exactly what the trial court did?") . Graham questioned whether the trial court's reliance on “pervasiveness of indoctrination” for judgment was constitutionally permissible.]
Douglas argued that the court “can & should” render judgment on this basis, that the trial court viewed “whether sectarian tenets are being taught, period” which he said is allowed under federal case law.
Douglas noted that the trial court found that funds for tuition does constitute “aid to schools” (impermissible under the Colorado Constitution, Article IX Section 7).
[Judge Jones interjected at this point that the same kind of program was found NOT to constitute "aid to schools" in the Zelman ruling.]
Douglas countered that if ANY of the schools in the program don’t “admit all” regardless of religion, then the entire program is discriminatory.
Attorney Michael McCarthy addressed the public school finance issues and School Finance Act for the Plaintiffs
McCarthy opened by asserting that the purpose and intent of constitutional and statutory provisions for public school finance is to “prevent depletion of public school finance resources” – arguing that the Douglas County School Choice Scholarship program “will gut public school finance in Colorado” and, if allowed to proceed, would grow beyond the initial limited scope and “operate to materially deplete financing available to public schools” not only in Douglas County, but throughout the state.
Judge Graham again raised the issue of standing, noting the absence of explicit language allowing individual standing in the School Finance Act and asking
if we allow standing in private citizens, aren’t we really allowing them to be substitute Boards of Education?”
McCarthy responded that “no express cause of action is needed – other avenues exist” and that ultimately, standing was predicated on the test established by Justice Rovira,
“did plaintiff incur injury in fact, related to a constitutional right?”
The majority of the remainder of McCarthy’s time was taken up with a discussion on whether or not funding was diverted to or from other school districts, and whether students leaving the Douglas County public schools constituted a net loss (in funding) to the district. (Judges Graham and Jones, in particular, seemed skeptical).
McCarthy concluded by proclaiming,
Choice isn’t the preeminent constitutional value in this case – or in this state.
He argued that the School Finance Act requires a specific spending formula, and that a transfer of 75% of the per-pupil funding to students attending private schools constitutes an “illegal transfer” since the private schools are ‘not public, not free & uniform, not subject to local control.”
Oral arguments concluded with rebuttal by appellants’ attorney Eric Hall.
Hall noted that the trial court had ruled in favor of plaintiffs on Article IX Sections 2 and 15; however, Article IX Section 3 creates a “trust obligation” to school districts – which can spend funds as they like (within discretion).
Hall highlighted the absurdity of insisting that “public funds can ONLY be spent on public schools” -
if true, then NO expenditures to private entities (including contracting services on everything from janitorial to legal services) would be allowable. School districts, he continued, “can and do buy services from private entities.”
Analysis:
Based on the body of evidence and argument presented at yesterday’s hearings and throughout the appeals process, the trial court’s ruling appears likely to be overturned, in whole or in part. On the (admittedly esoteric) issue of standing to bring claims under the School Finance Act, it was clear that a majority (if not all) of the judges were skeptical at best, making it likely that those claims will be disallowed (rendering the trial court’s judgment in those areas moot).
On the core constitutional issues (respecting religious freedom and prohibiting public funds for support or sustaining of sectarian institutions), governing case law (from the 2002 U.S. Supreme Court Zelman case to the 1982 Colorado Supreme Court Americans United case and several others touched upon in filings and at argument) is clear that so long as the overall program is facially neutral (containing neither preferences for or against either secular or religious schools) and that school funds are spent in pursuit of education meeting secular criteria under local district control, the choice of individual students (parents) to attend schools with a religious component does NOT constitute “support” of the institution (nor, since the choice to attend a given school is left to individual program participants, does it “compel” sectarian attendance).
Moreover, since the program merely provides an additional choice among several options as an expansion to (not replacement of) the existing constitutionally mandated system of “free public education” and does not result in a net loss to the public system’s funding (indeed, it results in a 25% per-pupil surplus to the district), claims of damage under the School Finance Act lack justification.
The court’s ruling (to be issued “in due course”) will most likely be published in February or March of next year.
Since both sides in the case have signaled their intent to appeal if not satisfied with the verdict, the ultimate resolution of the case will fall to the Colorado Supreme Court – most likely (the wheels of justice grind slowly) in another year or more.
Additional References:
For another analysis of yesterday’s oral arguments (with more emphasis on policy implications over legal issues), read Education Policy Analyst Ben DeGrow’s superb summary.
Click here for a comprehensive review of the Douglas County Choice Scholarship Program (including program information, video and audio interview and news clips, news and commentary highlights and links to many legal documents in the case)
Colorado Court of Appeals to hear oral arguments in Douglas County school voucher program case Monday (19 Nov 2012)
The Colorado Court of Appeals will hear oral arguments Monday afternoon (19 November 2012) on the Douglas County school voucher program that was stopped (via permanent injunction) by Denver District Court Judge Michael Martinez in a controversial ruling (Larue v. Douglas County) in August 2011.
In that ruling, Judge Martinez decreed that the Douglas County Choice Scholarship Program violated multiple sections of the Colorado Constitution (Article IX, Section 7 Aid to Private Schools, Churches, Sectarian Purpose, Forbidden, Article IX, Section 8 Religious Test and Race Discrimination Forbidden Sectarian Tenets, and Article II, Section 4, Religious Freedom) as well as the state school financing act.
Martinez appears to have disregarded governing constitutional precedent established in the 2002 Zelman v. Simmons-Harris case, which established the constitutionality of school vouchers even for schools with a religious component if the choice is up to the parent:
This Court’s jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice. See, e.g., Mueller v. Allen, 463 U. S. 388. Under such a program, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients not the government, whose role ends with the disbursement of benefits.
A contemporaneous 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,” also noting that voucher programs do 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.
Bottom Line:
The Douglas County case also touches upon important constitutional issues such the separation of powers between branches and levels of government, establishment of religion, and collection and allocation of tax dollars, but ultimately comes down to a very basic and fundamental issue:
who decides how to educate Colorado’s children?
Clear The Bench Colorado believes that the decision should be in the hands of parents – NOT in the hands of the courts.
Cases such as this highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering (let alone deciding) issues of policy more appropriate for the elected, representative branches of government. Our courts have an important – even vital – role to play in our society and system of government. This is not it.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.