Colorado Politics

Hickenlooper appoints Navarro to Colorado Court of Appeals

Published October 15, 2012 | By CTBC Director

The second time was the charm for Anthony Navarro, who was just appointed to the Colorado Court of Appeals by Governor John Hickenlooper to replace outgoing Judge Robert Russel, a former contender for Colorado Supreme Court justice (Navarro had previously applied for consideration to join the state’s frontline appellate court in 2008, with the endorsement of the Colorado Hispanic Bar Association).

Governor Hickenlooper selected Navarro from a pool of 3 nominees (Robert T. Fishman of Denver, Russell H. Granger of Georgetown, and Anthony Navarro of Denver) picked by the State Judicial Nominating Commission last month.

Mr. Navarro (effective 3 November, Judge Navarro) will serve as one of 22 judges on the Colorado Court of Appeals (who rule on cases in 3-judge panels).  His first term (considered a “provisional” term under the Colorado Constitution, Article VI Section 20) “expires” in 2014, when he will appear on the ballot for a “retention” vote:

A justice or judge appointed under the provisions of this section shall hold office for a provisional term of two years and then until the second Tuesday in January following the next general election.

Citizen participation in the judicial review and retention election process (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – hold judicial office, instead of more politicians in black robes.

This is particularly important in reviewing the performance of statewide appellate court judges – many of whom all too frequently have exercised unrestrained power, in violation of constitutional limits on their authority, in order to advance a personal and/or political agenda.

Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our judges are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.

Our view: an informed citizenry and active citizen participation is vital in restoring accountability and transparency to the 3rd branch of state government, the judicial branch.

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 Judicial Nominating Commission names finalists for Colorado Court of Appeals vacancy

Published September 28, 2012 | By CTBC Director

The Colorado Supreme Court Judicial Nominating Commission has named the three finalists to fill a pending vacancy on the Colorado Court of Appeals, due to the resignation of Judge Robert Russel (effective 3 Nov 2012), as reported by Clear The Bench Colorado last month.

The three finalists (from whom Governor John Hickenlooper will select one) are:

Robert T. Fishman of Denver, Russell H. Granger of Georgetown, and Anthony Navarro of Denver.

  • Fishman is an appeals attorney at Ridley McGreevy & Winocur in Denver; his experience includes having clerked for (former) Colorado Supreme Court Chief Justice Luis D. Rovira
  • Granger is a currently district judge in the 5th Judicial District (formerly a Clear Creek County judge), and was most recently reviewed (and retained) in 2008.
  • Navarro currently works in the office of general counsel at the Social Security Administration; he previously applied for the Colorado Court of Appeals in 2008 (endorsed at the time by the Colorado Hispanic Bar Association).

The governor has 15 days from Wednesday to select one of the three. Comments regarding any of the nominees may be sent via e-mail to the governor at judicial.appointments@state.co.us

Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to judicial office, instead of more politicians in black robes.

This is particularly important in selecting the next statewide appellate court judges – many of whom all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.

Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our judges are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.

Our view: an informed citizenry and active citizen participation is vital in restoring accountability and transparency to the 3rd branch of state government, the judicial branch.

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

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

Ultimately, though – it’s worth the effort.

Defending the Constitution – Why 9/11/2001 still matters today (11 years later)

Published September 11, 2012 | By CTBC Director

“It is Tuesday morning, the 11th of September… and you will not forget this date.”
(TV reporter, unknown, reporting from NYC as events unfolded on the morning of 9/11…)

11 years ago today, the most horrific attack ever carried out on American soil claimed the lives of thousands of Americans, making clear that “there’ll be no shelter here – front lines are everywhere.”

Looking back, it occurred to me that I’ve since spent most anniversaries of that fateful Tuesday morning – forever burned into the American psyche as, simply, 9/11 – on duty away from home.

2002: Afghanistan; 2003: Fort Benning, Georgia; 2005: Operation Katrina, New Orleans (hurricane disaster relief/recovery operations); 2006: Fort Bragg, North Carolina; 2009: Camp Williams, Utah; and last year, 2011: Fort Indiantown Gap, Pennsylvania.

My experience in this regard is hardly unique – indeed, I’ve spent less time on duty away from home than many others who proudly wear the uniform – a mere token of service willingly rendered in defense of our nation, and the Constitution we are sworn to support and defend.

Sadly, many of the men and women in uniform serving on that day and since – military, NYC Police & Port Authority, and FDNY – were not “invited” to the 10th anniversary of 9/11 at Ground Zero ’due to “lack of room”. Funny – they weren’t “invited” on that fateful day in 2001 either – they just “showed up” and did what needed to be done.

However, America isn’t about the politicians, officials, and various muckety-mucks who were pontificating at that “official” event and others today.

America is about the brave people – often bearing only the proud title of “Citizen” – who just “show up” to do what needs doing.

Defending the Constitution – Why 9/11 still matters today (reprise)

Clear The Bench Colorado joins millions of Americans across the country in somber remembrance of the 9/11 attacks on our nation.

What does this have to do with holding our Colorado Supreme Court justices accountable to the rule of law and the Colorado Constitution?  Quite a lot, actually…

As a proud veteran of the U.S. military (including service in the Colorado Army National Guard), I take my oath of enlistment – “I will support and defend the Constitution of the United States and the State of Colorado [emphasis added] against all enemies, foreign and domestic”  - seriously; very seriously.

Many of our elected (and unelected) officials seem to have a much more cavalier attitude towards their own oath of office.

Colorado Supreme Court justices also swear a similar oath on taking office, which begins:
“I will support the Constitution of the United States and the Constitution of the State of Colorado.”

Note that the judicial oath of office does not state “I will support only those parts of the Constitution that I like or with which I personally agree or empathize.”

Yet the Mullarkey Court has consistently ruled against the Colorado Constitution’s Article X, Section 20 (TABOR) in every case it has heard – despite the clear intent and letter of the law that “[i]ts preferred interpretation shall reasonably restrain most the growth of government.”

The Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, Chief Justice Mary Mullarkey) are oathbreakers – and dishonor the service of the men and women of the United States military and law enforcement agencies who put their lives on the line to support and defend our Constitution.  They have proven themselves unworthy of the high office they occupy.

Another important lesson of 9/11 is that individuals matter – and fighting to defend your rights, and your lives, is the only way to preserve your rights (and your life, in extremis) when under attack.  The true heroes of that day were not only the firefighters but also the ordinary citizens who acted to save lives – and the brave passengers on Flight 93 who fought back against the hijackers on the 4th plane and died not as victims, but as American heroes.

We can no longer be under any illusion – as the passengers on Flight 93 discovered – that our rights and lives are NOT under attack; we are threatened by enemies both foreign and domestic.   The nature of the threat (and appropriate response) is different, but the need to take action, to defend your rights – remains the same.

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

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

Ultimately, though – it’s worth the effort.

Colorado Supreme Court Nominating Commission seeks applicants for pending Colorado Court of Appeals vacancy

Published August 2, 2012 | By CTBC Director

The Colorado Supreme Court Nominating Commission is soliciting applicants to fill a pending vacancy on the Colorado Court of Appeals, due to the resignation of Judge Robert Russel (effective 3 Nov 2012).

Any qualified elector of the state of Colorado who is not a convicted felon and has been licensed to practice law in the state for 5 years may apply to become a judge (Colorado Constitution, Article VI Section 8, Qualifications of Judges).

From the vacancy announcement, as reported by Law Week Colorado:

Application forms are available from the office of the ex-officio chair of the nominating commission, Chief Justice Michael L. Bender, 101 W. Colfax, Suite 800, Denver, CO 80202; and the office of the district administrator of any of the 22 judicial districts. Applications also are available at www.courts.state.co.us/Careers/Judge.cfm.
One original, signed application form, along with an identical copy of the application stored as a PDF file must be received by the ex-officio chair by 4 p.m. Tuesday, Aug. 28. Late applications will not be considered.
Any person wishing to suggest a candidate to fill the vacancy may do so by letter to be submitted to any member of the nominating commission, with a copy to the ex-officio chair, no later than Aug. 21.
Applications will be kept confidential, except that the nominating commission shall disclose the names, work addresses, and work telephone numbers of the three nominees submitted to the governor.

The Colorado Supreme Court Nominating Commission will convene 24-25 September 2012 to review all applications, interview selected applicants, then vote to select 3 nominees who will be submitted to the governor for appointment to the Court of Appeals.  Once the 3 nominees have been selected, a public review and comment period is typically observed.  (Current example: Montrose County Court vacancy)

Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to judicial office, instead of more politicians in black robes.

This is particularly important in selecting the next statewide appellate court judges – many of whom all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.

Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our judges are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.

Our view: an informed citizenry and active citizen participation is vital in restoring accountability and transparency to the 3rd branch of state government, the judicial branch – most particularly for the Colorado Supreme Court.

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

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

Ultimately, though – it’s worth the effort.

Colorado Supreme Court Nominating Commission position open for 3rd Congressional District (attorneys only need apply)

Published July 27, 2012 | By CTBC Director

The Colorado Judicial Branch, “[o]n behalf of Gov. John Hickenlooper, Attorney General John Suthers and Chief Justice Michael L. Bender,” recently announced

opening of the application period for a vacancy on the Supreme Court Nominating Commission.
Applications for the volunteer position, which must be filled by an attorney residing in the 3rd Congressional District, will be accepted until Aug. 3, 2012. There is no political party affiliation requirement for this vacancy.

Under Colorado’s “merit selection and retention” system of filling judicial offices, the judicial nominating commissions – at either the district level, or statewide – represent one of the few opportunities for Colorado citizens to have a say in the composition of our courts.  In essence, the commissions are the means by which Citizens can become involved in choosing our judges.

At the district level (Colorado is divided into 22 judicial districts),

Each judicial district nominating commission consists of seven citizens residing in that judicial district. No more than four members can be from the same political party, and there must be at least one voting member from each county in the district. [Source: Colorado State Courts,  Judicial Nominating Commissions]

At the statewide level (including both the Colorado Supreme Court and Court of Appeals),

The Supreme Court Nominating Commission recommends candidates to serve as judges for the Supreme Court and the Court of Appeals. The chief justice of the Supreme Court chairs the commission and is a non-voting member. This commission includes one citizen admitted to practice law in Colorado and one citizen not admitted to practice law residing in each of the state’s seven congressional districts, and one additional citizen not admitted to practice law in Colorado.  [Total of 15 commissioners] (Source: Judicial Nominating Commissions)

From the press release:

Article VI, Section 24 of the Colorado Constitution requires that for any nominating commission, “no more than one-half of the commission members plus one, exclusive of the Supreme Court justice serving as ex officio chair, shall be members of the same political party.” The Constitution also requires that at least one commissioner reside in each of the counties of the district. Applicants must reside in the judicial district – or, for the Supreme Court Nominating Commission, the Congressional District – to which they are applying for appointment.

Application forms may be found on the Colorado Judicial Department web site at http://www.courts.state.co.us/Courts/Supreme_Court/Nominating.cfm. Completed application forms may be mailed to Cheryl Stevens, Colorado Supreme Court, 101 W. Colfax, Suite 800, Denver, CO 80202. They also may be sent via email to cheryl.stevens@judicial.state.co.us.

Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to judicial office, instead of more politicians in black robes.

This is particularly important in selecting the next Colorado Supreme Court justices – who all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.

Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our supreme court justices are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.

Our view: an informed citizenry and active citizen participation is vital in restoring accountability and transparency to the 3rd branch of state government, the judicial branch – most particularly for the Colorado Supreme Court.

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

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

Ultimately, though – it’s worth the effort.

The Colorado Car Tax – er, ‘FASTER’ “vehicle registration fee” increase – challenged in court as violation of state Constitution

Published May 21, 2012 | By CTBC Director

The Colorado Car Tax (er, “vehicle registration fee”) increase passed in 2009 (SB108, the so-called “FASTER” bill) is quite possibly THE most unpopular tax increase in Colorado history – made all the more repugnant by how it became law (exploiting a 2008 Colorado Supreme Court ruling which declared that “fees” don’t count as “taxes” to circumvent the constitutional requirement (under Colorado Constitution Article X, Section 20 – Taxpayer’s Bill of Rights, a.k.a. TABOR) to receive prior voter approval for any ‘policy change resulting in net revenue gain’ to the state).

After two years of legislative inaction failed to repeal or roll back the unconstitutional and unpopular tax increase, the ‘FASTER’ Colorado Car Tax is being challenged in court as a violation of the Colorado state Constitution (specifically, Colorado Constitution Article X, Section 20 – Taxpayer’s Bill of Rights, TABOR).

Despite being a central issue in the 2010 elections (Democrat Governor Bill Ritter chose not to seek re-election in large part because of the tax increase’s unpopularity; Senate sponsor Dan Gibbs also chose not to seek re-election; and House Sponsor Joe Rice was defeated by now-Representative Kathleen Conti largely on the strength of her campaigning on the Car Tax issue), the legislature has failed to overturn the clearly unconstitutional tax (or address other unconstitutional aspects of the legislation, including establishment of unaccountable “government-owned enterprises” to administer the tax – er, “fee” – collections and revenues).

It has long been clear that the proper venue for overturning this highly unpopular, regressive, and unconstitutional tax increase is NOT via the legislature (which is unwilling or unable to act) but via a court challenge.  Unfortunately, as long as the actively anti-TABOR “Mullarkey Majority” (and its successors) ruled the Colorado Supreme Court, prospects for a reasonable hearing on the merits (and interpretation actually based on the Colorado Constitution, as written) have been bleak.

However, due to recent changes in the composition of the state’s highest court (blatantly partisan and anti-TABOR Chief Justice Mary Mullarkey quit rather than face voters in 2010 and Mullarkey ally Justice Alex Martinez quit the court to take a Denver city job last Fall), along with the impending retirement of Mullarkey’s heir as Chief Justice (Michael Bender), a lawsuit challenging the ‘FASTER’ Colorado Car Tax (er, “vehicle registration fee”) increase might now have a chance.

Apparently judging the time to be ripe, the TABOR Foundation – represented by the Mountain States Legal Foundation – filed suit today (21 May 2012) challenging the constitutionality of the 2009 ‘FASTER’ Colorado Car Tax.  From the organization’s press release:

“In clear violation of TABOR, the General Assembly enacted and CDOT implemented a scheme to levy taxes and raise revenues without a vote of the people of Colorado,” William Perry Pendley of the Mountain States Legal Foundation, said in a statement.

The lawsuit targets not only the over $100 Million in (unconstitutionally-imposed) new taxes levied, but also the $300 million in new government bonds imposed by the Colorado Bridge Enterprise (one of the constitutionally dubious quasi-government “enterprises” established under the ‘FASTER’ law).

The Foundation seeks declaratory and injunctive relief and an order requiring refund of all revenues collected, along with the payment of interest, as required by TABOR.

The TABOR Foundation’s lawsuit highlights the fact that legislative action alone is frequently inadequate in preserving rights and freedoms – bad laws can (and should) be struck down by citizens (working alone or in groups) defending their rights in court.  The fact that it took years before the conditions were conducive to a court challenge also highlights the fact that elections to legislative or executive office are not the only votes that matter – underlining the critical importance of the judicial accountability movement spearheaded beginning in 2009 by Clear The Bench Colorado.

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

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

Ultimately, though – it’s worth the effort.

Speaking Out on Reforming Colorado’s Campaign Finance Laws

Published December 19, 2011 | By CTBC Director

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
1st Amendment to the United States Constitution, ratified 15 December 1791

Abridging the freedom of speech – particularly political speech – has a long and sordid history, as the ruling ‘Establishment’ or entrenched special interests seek to suppress criticism and competition.

In “modern” and “civilized” times, the tools of repressing political speech have “evolved” from the brute force of physically preventing anyone from speaking out to the more subtle and “sophisticated” methods of legislating limits, building bureaucratic barriers, and piling on paperwork for “permission” in order to exercise what is a fundamental right.

A confusing cloud of campaign finance laws in Colorado challenge the Constitution, chill free speech, and curtail civic participation.

On Thursday December 15th, the office of Colorado Secretary of State held open hearings to receive public testimony (chaired by Secretary of State Scott Gessler) on rules changes oriented towards clarifying and reforming Colorado’s unconstitutional campaign finance laws.

A number of people – both supporting and opposing specific rules changes, and/or speaking out more generally on the topic of the impact of campaign finance laws on political speech and civic participation – submitted written comments, showed up in person to testify, or both.

Curiously, the people supporting the reforms to campaign finance rules largely spoke as individuals or as representatives of small, grassroot organizations, while those opposing the rules reforms almost uniformly represented well-established politically-active special interest groups (see below for list).

A common theme emerged regarding the complexity of existing campaign laws, and the resultant cost, burden and difficulty of compliance.

Some people – such as Colorado state senator John Morse – think that’s just “the price of transparency”:

(Video courtesy of Ari Armstrong of Free Colorado)

Organizations opposing rules changes to reform campaign finance laws at the hearing:

Curiously, none of these politically active organizations – NOT ONE – is subject to the same reporting and disclosure requirements that they support imposing on others.
(NOTE: the state Democrat and Republican parties are subject to some campaign finance reporting and disclosure requirements, but differ in some details)

In fact, the Colorado Statesman profiled some of these groups in a pair of articles last year:

Testifying in favor of rules changes to reform campaign finance laws at the hearing:


Clear The Bench Colorado director Matt Arnold testifies in favor of reforming Colorado campaign laws

The Revised Draft of Proposed Rules is posted on the Secretary of State’s website, along with written comments submitted in support or opposition.  Interested individuals or groups can still submit written comments to the Secretary of State’s office until Friday, 23 December.

Other videos on how Colorado campaign laws adversely impact free speech:

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.

Reforming Colorado’s Unconstitutional Campaign Finance Laws

Published December 14, 2011 | By CTBC Director

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
1st Amendment to the United States Constitution, ratified 15 December 1791

Abridging the freedom of speech – particularly political speech – has a long and sordid history, as the ruling ‘Establishment’ or entrenched special interests seek to suppress criticism and competition.

Techniques have evolved from outright bans, gag orders, and brutal repression to a more subtle and “civilized” approach: suppression by regulation and legal intimidation.

In today’s Colorado, for example, your right to engage in free speech on political issues is not banned - perish the thought! – although to practically and effectively exercise that right, by collecting and spending money to reach a mass audience, you’ll first need to fill out a few forms…

Actually, you’ll need to do far more than that.  Under Colorado’s campaign finance regime, if you wish to speak out on issues or questions that may appear on the ballot, you’ll need to form and register an “Issue Committee” – as defined in Colorado Constitution Article XXVIII, § 2(10)(a):

(10) (a) “Issue committee” means any person, other than a natural person, or any group of two or more persons, including natural persons:
(I) That has a major purpose of supporting or opposing any ballot issue or ballot question; or
(II) That has accepted or made contributions or expenditures in excess of two hundred dollars to support or oppose any ballot issue or ballot question.
(b) “Issue committee” does not include political parties, political committees, small donor committees, or candidate committees as otherwise defined in this section.

Colorado’s ‘Campaign Finance Laws’ challenge the Constitution, chill free speech, and curtail civic participation

The amount of paperwork and resources (time and/or money) required in order to simply exercise a fundamental right (freedom of speech) is significant, and itself exerts a chilling effect on civic or political participation.  Individuals and small groups, particularly those becoming active for the first time, face a daunting amount of red tape: establishing and registering a committee, opening a separate bank account, keeping detailed financial records, filing frequent and detailed reports of contributions and expenditures – all under threat of fines and other legal sanctions for mistakes, no matter how minor.

Even if they DO follow the rules to the letter, committees may STILL be forced to defend their right of civic participation in court, thanks to the proliferation of legal attack groups (such as the grossly misnamed “Colorado Ethics Watch” – CEW, pronounced “sue”, it’s what they do) that exist solely for the purpose of harassing and diverting resources from ideologically opposed organizations.  The cost of defending against such attacks is another deterrent to participation.  Even a successful defense can cost tens of thousands, and even defeating an attack so completely without merit (in legalese, a “frivolous, groundless, and vexatious” complaint such as the CEW attack on Clear The Bench Colorado) that the judge takes the rare step of awarding attorneys fees to the defense can divert scarce resources (and take months, if not years, to collect). [Ed. to date, CEW still refuses to pay what they owe to CTBC, continuing to contest the judgment against them all the way to the Colorado Court of Appeals]

Origins of Colorado’s Campaign Finance Regime

Interestingly, many of these restrictions on freedom of (political) speech are a relatively recent development.  In 2002, as part of the wave of “campaign finance reform” measures that swept in the subsequently-found-unconstitutional McCain-Feingold law on the national scene, Colorado voters were persuaded to vote for Colorado Amendment 27 (which became Colorado Constitution Article XXVIII).

Many of these so-called “campaign finance reform” measures have since been found unconstitutional, as violating First Amendment rights of freedom of speech and freedom of association – in a word, censorship.  However, until challenged, many of the laws remain on the books – forcing individuals to fight for their fundamental constitutional rights in court.

Constitutional Challenges to Colorado’s Campaign Finance Regime

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 were held to unduly burden the rights of free association and free speech protected under the 1st Amendment, among our most cherished rights.

The rationale behind Article XXVIII (as Amendment 27) was to reduce “disproportionate influence” over the political process by “large campaign contributions.”  The 10th Circuit held that Colorado’s $200 trigger for requiring committee registration and subsequent disclosure and reporting failed to meet the test of either “large contributions” or “disproportionate influence” that might justify public interest, and was therefore an unconstitutional  burden on the freedoms of speech and association protected under the First Amendment.

Rolling Back the Regime – Restoring Constitutional Protections

In response to the 10th Circuit’s ruling in Sampson v. Buescher, the office of Colorado Secretary of State (beginning under outgoing SOS Buescher, continued and successfully concluded under newly-elected Secretary of State Scott Gessler), pursuant to the Secretary’s constitutional rule-making authority under Article XXVIII, Section 9(1)b, proposed a rules change to raise the registration and reporting threshold for Issue Committees to $5,000 in order to bring Colorado’s requirements in line with the court’s ruling.

Last May, after soliciting and reviewing written comments and holding public hearings,  based on the overwhelming weight of public comment and testimony in favor of raising the registration and reporting threshold, the office of Secretary of State adopted the new rule on 13 May 2011.

Unsurprisingly, the rules change was challenged in court – by the perennial campaign finance attack group “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do), and advocacy group “Common Cause” which despite extensive political participation are not subject to the same financial disclosure and reporting regulations as the groups they attack.

Recently, Denver District Court Judge A. Bruce Jones ruled that Gessler “went beyond his authority” in adopting the rules change (Gessler is appealing).  Judge Jones (who is subject to a retention vote in 2012) had earlier “unloaded on Colorado Secretary of State Scott Gessler” at the initial hearing on the case – later admitting that he had not yet read the written briefs before issuing his critical remarks.

Pending the appeal, the office of Secretary of State is again holding public hearings (and accepting written comment) on these and other rules changes to Colorado’s campaign finance laws – most of which are oriented towards clarifying, simplifying, and/or reducing the burden on political participation.

The Revised Draft of Proposed Rules is posted on the Secretary of State’s website, along with written comments submitted in support or opposition.

Clear The Bench Colorado submitted a written brief in support of Proposed Rule 4 (clarifying requirements for Issue Committees) and Rule 20 (Redaction of Sensitive Information) and will offer verbal testimony at Thursday’s hearing as well.

(Hearing is scheduled for December 15, 2011 from 9:00AM to 12:00PM in the Blue Spruce Conference Room on the 2nd floor of the Secretary of State’s Office at 1700 Broadway, Denver CO 80290)

Written Comments

Additional commentary on Colorado’s campaign finance regime

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

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

Ultimately, though – it’s worth the effort.

Colorado Supreme Court approves 40% tax increase

Published November 4, 2011 | By CTBC Director

Although Colorado voters decisively repudiated a recent attempt to raise taxes at the ballot box this week (the “Proposition 103″ tax increase initiative, which at least did seek “voter approval in advance” as required by the Colorado Constitution, Article X, Section 20 – the ‘Taxpayer’s Bill of Rights’), on the day before votes were tallied, the Colorado Supreme Court approved what may have been the largest (percentage) tax increase in the history of Colorado – increasing a severance tax (on energy production) by over 40%.

Sadly, this latest ruling only continues a pattern of judicial assault on the rights of Colorado taxpayers that is both politically motivated (the court’s majority has frequently expressed antipathy towards the Colorado Constitution’s Article X, Section 20 – the ‘Taxpayer’s Bill of Rights’ – despite their oath to support and uphold the entire Constitution, not just the parts they like) and entirely predictable.  (Indeed, Clear The Bench Colorado forecast the court’s decision over a year ago in this article):
Colorado Supreme Court prepares additional assault on taxpayer rights, hearing another stealth tax increase case (31 August 2010)

The Colorado Supreme Court’s ‘Mullarkey Majority’ has now gone 0-16 in upholding TABOR, a “perfect season” establishing them as the 2008 Detroit Lions of jurisprudence
(Mullarkey’s replacement, Monica Marquez, recused herself from the decision due to her role as a former Deputy Attorney General arguing the case for violating taxpayer’s rights before the Court of Appeals)

Some of the most prominent examples of the court’s “perfect” record:

Following the pattern of earlier anti-TABOR decisions, the majority opinion tortures statutory language to extract a tenuous justification for a constitutional end-run in favor of tax increases, overturning a Colorado Court of Appeals ruling that was a model of clarity and conciseness in legal language:
so simple, even a caveman could understand it:

We hold that TABOR precludes the challenged coal severance tax adjustments. Our holding is based on a simple syllogism:

(1) TABOR prohibits increasing tax rates without voter approval. Colo. Const. art. X, § 20(4)(a); Nicholl v. E-470 Public Highway Auth., 896 P.2d 859, 867 (Colo. 1995).

(2) Applying the statutory formula increased the coal severance tax rate (initially from $0.54 to $0.76 per ton) without voter approval.

(3) Therefore, TABOR was violated.

So how did the Colorado Supreme Court get around this clear, concise language?

The ruling majority declared that the tax increase was merely an “adjustment” to the “tax rate formula” that the statutory language “required” the Department of Revenue to increase – a “non-discretionary” mechanism (despite the undisputed fact that the Department of Revenue did exercise discretion – and complied with the Constitution by not raising the rate – for 15 years previously).  The majority likewise ignored the well-established legal principle that constitutional language trumps statutory language, as Justice Coats pointed out in his dissent:

Not only is TABOR a constitutional provision to which legislative acts are subservient, rather than merely another statute itself, but its intent to limit the legislative taxing power by subjecting it directly to popular approval, see Bickel v. City of Boulder,885 P.2d 215, 226 (Colo. 1994), and to ‘s upersede” all conflicting state statutes could not be more clear, see Colo. Const. Art X, sec. 20 (1) (“All provisions are self-executing and severable and supersede conflicting state constitutional, state statutory, charter, or other state or local provisions.”). Starting November 4, 1992, the state is expressly required to have voter approval in advance for any tax rate increase that does not fall within a TABOR exception.

Colo. Const. Art X, sec. 20(4)(a). The language of TABOR simply does not admit of any construction permitting future tax rate increases without the constitutionally required voter approval, whether or not they were mandated by statutes enacted before the constitutional amendment, and this court has never suggested otherwise.

Despite the clearly-expressed intent of the voters, both in decisively repudiating a tax increase at the polls (in 2011) and in establishing constraints of the power of government to arbitrarily and without asking raise taxes (or “increase revenue” by any “tax policy changes”) by adopting a constitutional amendment (the “Taxpayers Bill of Rights” in 1992), the Colorado Supreme Court continues its unbroken streak of raising taxes by judicial decree, usurping the power and authority both of the legislature and of “We The People” – the ultimate sovereigns.

As Justice Coats made clear in his dissent:

It simply strains credulity beyond the breaking point to assert, as does the majority, that raising the tax on every ton of extracted coal from fifty-four to seventy-six cents is not a tax rate increase.

A tax increase by any other name (be it “elimination of existing exemption“, “fee“, or now “adjustment“) still smells as foul.

A violation of your right to have a say before having your money taken from you is just as bad (arguably, much worse) coming from the courts as coming from the executive or legislative branches  - your wallet can’t tell the difference.

Know your rights – as a Citizen – and defend them.

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

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

Ultimately, though – it’s worth the effort.

Governor Hickenlooper selects JeffCo Judge Brian Boatright as next Colorado Supreme Court justice

Published October 27, 2011 | By CTBC Director

Colorado Governor John Hickenlooper announced this morning his selection of Jefferson County District Court Judge Brian Boatright (1st Judicial District) to become the next Colorado Supreme Court justice.  Judge Boatright replaces departing  Justice Alex Martinez, who is resigning to take a “city job” as Denver Manager of Safety (after being retained in office only last year, albeit with the lowest – 59% – percentage of “retain” votes ever received by an incumbent Colorado Supreme Court justice).

Governor Hickenlooper selected Judge Boatright from among three finalists selected by the Colorado Supreme Court Nominating Commission (announced earlier this month).  Judge Boatright was the only one of the three with any judicial experience (having served as a trial court judge for the over a decade) and will be only one of two Colorado Supreme Court justices with experience as a trial court judge once he joins the state’s highest court.

Judge Boatright comes to the Colorado Supreme Court with a broad range of experience, respect from both peers and other persons coming before his court, and strong endorsements from his application packet’s letters of reference and recommendation.

Most encouragingly, Judge Boatright’s statements at this morning’s press conference announcing his appointment, and in a previous interview (published only yesterday in the Denver Post) appear to indicate that he understands that the proper role of the judiciary is to uphold the law as written and “gets it” when it comes to the qualities that make a “good” judge.

Yesterday’s Denver Post, “Colorado Supreme Court justice finalists from diverse political backgrounds” included the following:

“Your job is to follow the law and apply the law regardless of how you personally feel,” he said. “You can’t have decisions based on personal whims of the judges. It’s got to be based on what the law is. It gives predictability to society; it gives confidence in the system.”

Judge Boatright’s statement this morning, as reported by the Post’s Jessica Fender (“Boatright brings family law expertise, “intangibles” to Colorado Supreme Court“) continues in the same vein:

“I will always do my best to serve the citizens and apply the law as written,” Boatright said.

Of course, even the best of people can succumb to the temptations of power (which is why elected and appointed officials must be held accountable by a watchful citizenry), but initial indications are that Governor Hickenlooper chose wisely, and that Judge Boatright will likely continue to serve Colorado well as Justice Boatright.

In any event, Clear The Bench Colorado will be watching.

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

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

Ultimately, though – it’s worth the effort.

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