Wednesday’s surprise announcement by Colorado Supreme Court Justice Alex Martinez that he intends to resign from the bench (in order to become Denver Manager of Safety) brings renewed focus to the judicial selection and retention system in Colorado.  Unlike other states, many of which either elect judges or appoint them without any form of popular accountability, Colorado’s mixed system of appointment and accountability via retention elections is not well understood by the general public.

Misconceptions, misunderstanding, and misinformation about the process for selecting the judicial branch officeholders in Colorado is (unfortunately) all too common. Part of Clear The Bench Colorado’s mission is to contribute to informing the electorate about their constitutional rights to hold the judiciary accountable via the retention election process, and the process for selecting replacements for outgoing judges.  Since We The People do not vote for their replacements, who gets to decide?

Unfortunately, most Colorado citizens know more about the process of picking the Pope than about how our state selects nominees for judicial office.

This is unfortunate - because, despite some flaws (most importantly, a lack of transparency and public accountability - secrecy encouraged by the legal establishment, who are more interested in protecting their members and covering for their ‘buddies on the bench’ than allowing them to be called to account), the process does provide some level of front-end vetting of judicial applicants, filtering out the obviously unqualified and excessively partisan (weeding out the ‘worst of the worst’).

Clear The Bench Colorado published an overview of the judicial selection process (”Selecting the next Colorado Supreme Court justice(s) post-Mullarkey retirement and retention elections - who decides?“) last year; this article is an updated version, incorporating insights gained from discussions with former Nominating Commission members.

How Colorado selects individuals for judicial office:

Under the Colorado Constitution, Article VI (Judiciary), Section 20:

First, although the governor has the final say in the process (making the final pick), he does not have an entirely free hand.  Unlike the process for selecting Federal judges, there is NO role under Colorado’s “merit selection” process for the legislative branch to provide a check or balance to executive power via “advice and consent.”  The legislature does not weigh in on the process in any formal or legal way (although individual legislators may make their thoughts known to the governor, who has the final say).

Instead, the “front-end” check is provided by an appointed Judicial Nominating Commission, as described in this entry in the Judgepedia website:

The Supreme Court Nominating Commission recommends candidates to serve as judges for the Supreme Court and the Court of Appeals. The chief justice of the Supreme Court chairs the commission and is a non-voting member. This commission includes one citizen admitted to practice law in Colorado and one citizen not admitted to practice law residing in each of the state’s seven congressional districts, and one additional citizen not admitted to practice law in Colorado.^[1]

Commission members serve six-year terms. Non-lawyers, who are the majority of every nominating commission, are appointed by the governor. Lawyer members are appointed by joint action of the governor, attorney general, and chief justice.

Not noted in the Judgepedia article, but specified under the constitutional language (Article VI, Section 24 Judicial nominating commissions) is a requirement for some partisan balance on the commission:

(2) The supreme court nominating commission shall consist of the chief justice or acting chief justice of the supreme court, ex officio, who shall act as chairman and shall have no vote, one citizen admitted to practice law before the courts of this state and one other citizen not admitted to practice law in the courts of this state residing in each congressional district in the state, and one additional citizen not admitted to practice law in the courts of this state. No more than one half of the commission members plus one, exclusive of the chief justice, shall be members of the same political party.

The commission has 30 days from when the vacancy is announced to meet, review applications, conduct interviews, and select three finalists to submit to the governor, who then has 15 days to make a selection (if the governor fails to make a pick, then the Chief Justice selects instead).

Newly appointed justices “shall hold office for a provisional term of two years and then until the second Tuesday in January following the next general election” after which they enjoy 10-year terms:

Section 7. Term of office. The full term of office of justices of the supreme court shall be ten years.

By the Numbers: How the Judicial Selection Process actually works

1. On announcement of the vacancy and solicitation for application, prospective nominees submit an extensive application packet (including a long questionnaire, writing sample, background information, summary of relevant professional experience, and references).
2. Commission members review the applications, and select from the total list (last year, 31 people applied for the impending vacancy) for interviews (a particular candidate will be interviewed if any commissioner expresses a strong desire to have them appear).  Commissioners consider the current makeup of the court, and may advocate for a specific constituency - a particular area of legal expertise - such as water or business law, or possibly a regional or ethnic representation in pursuit of court ‘diversity’).  Interviews are based on a common set of ‘core’ questions (for consistency of comparison & evaluation); each commissioner develops and uses his/her own evaluation criteria.
3. Following interviews, the commission deliberates/discusses the candidate, voicing comments or concerns to the group at large.
4. Following all of the interviews, the commission casts a ballot - three unranked votes per opening (for the Colorado Supreme Court or Court of Appeals - lower courts may only require 2-3 nominees).  The top vote-getters become the finalists - with the caveat that any finalist MUST receive a majority of total Commission votes (i.e. 8 of 15), irrespective of how many are actually present.  Multiple ballots may be (generally are) necessary.  (Note that the current makeup of the Nominating Commission - 7 Democrats, 5 Republicans, 3 Unaffiliated -  ensures that any finalists MUST receive at least one vote from multiple party affiliations).
5. The names of the three finalists are submitted for consideration by the governor, who has 15 days to make a selection from the list.

ALL of our sources (from differing party backgrounds) have stressed that the Nomination Commission deliberations are non-partisan (which is not to say, as our sources admit, that the deliberations and considerations do not reflect ideology or judicial philosophy - which is, in our view, entirely appropriate).

A common critique of Colorado’s system of “merit selection & retention” for judges is the lack of transparency in commission deliberations (both during front-end judicial selection, and in back-end judicial performance review and retention) and lack of meaningful opportunity for public participation and comment.  This lack of transparency leads to a lack of public confidence in our judiciary and ultimately to a lack of accountability for the increasingly active and powerful Third Branch of our government.

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

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

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

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

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

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

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

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

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

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

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

Ultimately, though - it’s worth the effort.

The Denver-based Institute for the Advancement of the American Legal System (IAALS) - “a national, non-partisan organization dedicated to improving the process and culture of the civil justice system” - is hosting a National Conference on Evaluating Appellate Judges on 11-12 August on the campus of the University of Denver (Sturm Hall, 2000 E. Asbury Avenue, Denver CO 80208).

Clear The Bench Colorado Director Matt Arnold is, by special invitation, a featured panelist on the topic of “Evaluating Appellate Judges: Are we doing it right? How can we do it better?”

(Short answers: “NO”, and “view our Evaluations of Judicial Performance page for an idea”).

To the Institute’s credit, they (IAALS) extended the invitation even after being taken to task for their involvement in the “Know Your Judge” campaign which likely violated Colorado campaign finance laws in advocating against Clear The Bench Colorado’s judicial accountability efforts during the state’s 2010 judicial retention elections without ever bothering to register with the Office of Secretary of State, as required by law.  (The case is currently winding its way through the appellate process).

Since being announced last month, the conference has gained attention in the legal profession press, both locally (the Denver Bar Association and Colorado Bar Association featured the event in their respective newsletters, following Law Week Colorado’s coverage) and nationally:

• “Conference will explore how to evaluate judges“, LegalNewsLine.com
• “Top Iowa Judge, Colorado Activist to Address Conference“, ‘Justice At Stake’

For more on the topic (and for “what promises to be an engaging and thought-provoking” discussion), you’ll have to attend the conference, which is open to the public and free of charge (register online).

From the conference website:

This national conference will consider ways to improve existing processes for evaluating the performance of appellate judges and for informing voters about evaluation results. Chief Justice Mark Cady of the Iowa Supreme Court is the featured speaker. We invite you to join us for what promises to be an engaging and thought-provoking event.

For Colorado attorneys and judges, 9 hours of general CLE credits, including 1.2 hours of ethics, may be earned.

Click here for the conference agenda.

Topics include:

• The appellate judge: What makes a good appellate judge? Can we capture these qualities in the evaluation process?
• Evaluating appellate judges: Are we doing it right? How could we do it better?
• Retention elections, special interests, and voters: Perspectives from a justice, a journalist, and a scholar

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 Denver-based Institute for the Advancement of the American Legal System (IAALS) - “a national, non-partisan organization dedicated to improving the process and culture of the civil justice system” - is hosting a National Conference on Evaluating Appellate Judges on 11-12 August on the campus of the University of Denver (Sturm Hall, 2000 E. Asbury Avenue, Denver CO 80208).

Clear The Bench Colorado Director Matt Arnold is, by special invitation, a featured panelist on the topic of “Evaluating Appellate Judges: Are we doing it right? How can we do it better?”

(Short answers: “NO”, and “view our Evaluations of Judicial Performance page for an idea”).

To the Institute’s credit, they (IAALS) extended the invitation even after being taken to task for their involvement in the “Know Your Judge” campaign which likely violated Colorado campaign finance laws in advocating against Clear The Bench Colorado’s judicial accountability efforts during the state’s 2010 judicial retention elections without ever bothering to register with the Office of Secretary of State, as required by law.  (The case is currently winding its way through the appellate process).

For more on the topic (and for “what promises to be an engaging and thought-provoking” discussion), you’ll have to attend the conference, which is open to the public (register online).

From the conference website:

This national conference will consider ways to improve existing processes for evaluating the performance of appellate judges and for informing voters about evaluation results. Chief Justice Mark Cady of the Iowa Supreme Court is the featured speaker. We invite you to join us for what promises to be an engaging and thought-provoking event.

For Colorado attorneys and judges, 9 hours of general CLE credits, including 1.2 hours of ethics, may be earned.

Click here for the conference agenda.

Topics include:

• The appellate judge: What makes a good appellate judge? Can we capture these qualities in the evaluation process?
• Evaluating appellate judges: Are we doing it right? How could we do it better?
• Retention elections, special interests, and voters: Perspectives from a justice, a journalist, and a scholar

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.

As we celebrate the anniversary of our nation’s founding on this 4th of July - our Independence Day - Clear The Bench Colorado salutes the ideals and principles that make the Unites States of America the greatest nation on earth.

Since Clear The Bench Colorado Director Matt Arnold is currently serving a tour of duty out of state, on this Independence Day we reprise an article written this time last year to commemorate the anniversary of our Declaration of Independence (published in the now-defunct Constitutionalist Today monthly).

A Nation of Citizens - Not Subjects

As We The People celebrate the 235th anniversary of our Declaration of Independence this year - entering our 236^th year as a nation - it is worth reflecting on that truly groundbreaking document and the unique, truly exceptional experiment in human governance represented by our founding documents, forming the very essence and exceptional character of the United States of America.

For the first time in human history - acknowledging the historical antecedents in Greek democracy and the Roman Republic, but nonetheless a radical departure from all that had come before - a nation was founded based on the principle of individual, unalienable rights, and putting government in its proper place of being the servant, not the master:

“We hold these Truths to be self-evident, that all Men are created equal…”

Equality not of individual skill or ability, not station (or “class”) in life, not of achievement - but equality in rights before the law - unalienable rights, meaning rights that government does not have the authority to arbitrarily take away, even if it may have the power.

That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed…

Those who would argue that our rights come from government - that government comes first, and the citizenry should be content with what government gives them - are decisively rebuffed in our nation’s foundational documents, and the Spirit of America.  Government exists only to help secure our Rights - it does not grant them, our Rights are ours, pre-dating and superior to the existence of government.

Unfortunately - as did our forefathers at the time of the founding - We The People have experienced an increasing “History of repeated Injuries and Usurpations, all having in direct Object the Establishment of an absolute Tyranny over these States.”

The growth of the Federal government in particular, but of state governments as well, to rule over an ever-increasing number of activities not the proper purview of government activity, directly threatens the freedoms, liberties, and yes, “unalienable Rights” of the citizens of these United States of America.

Are we, then, arrived at the need for a new Declaration of Independence against our grasping, grabbing, ever-growing Government?

As Citizens, we still maintain the Right, and the power, to bring our out-of-control government to heel.  We The People have allowed our government - through inattention and inactivity - to ignore the limits we have set for its power and authority.  Those limits are specified in another exceptional founding document - the U.S. Constitution - which lists (”enumerates“) the “just Powers” of our Federal government, just as our respective state Constitutions enumerate the powers and authority of the state governments.

Government transgressions against the Constitution (at either the Federal or state levels) are an assault on the liberties and individual rights of the citizens.  As citizens, we must not - we cannot - tolerate such assaults, or we shall inevitably be deprived of our status as citizens, and instead become subjects - the ruled, not the rulers.

Stand as a Citizen this year (and every year) - refuse to become a subject.  Restore constitutional limits to the powers of government, and hold government officials at all levels, in all three branches - accountable to the law.  Remember, the Constitution is our law, limiting government power over us; don’t let it be taken from you, along with your rights.

In Colorado, we have a unique opportunity every two years to hold not just our elected officials (our legislators and executive-branch officeholders) accountable, but the appointed officials in our judiciary as well - those who should be the guardians of our constitutional rights, but many of whom instead have acted repeatedly to weaken and undermine our constitutional rights.

Our form of government - a constitutionally limited “Republic, if you can keep it” - is worthy of our best efforts in its defense.

This unique experiment in human governance, that has lasted more than two centuries - this

“government of the people, by the people, for the people, shall not [MUST NOT!] perish from the earth.”

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

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

Ultimately, though - it’s worth the effort.

Clear The Bench Colorado salutes those who have contributed most to establishing, and preserving, our freedoms as Americans: on this Memorial Day, we honor those who serve (or have served) in our nation’s armed forces, particularly those who have made the ultimate sacrifice.  As a military veteran and proud “Citizen Soldier” I strongly believe in the importance of saluting the service of all who have honorably worn the uniform.

In honor of “Band of Brothers” Dick Winters - who died this year, 2 January 2011 at age 92 - and of Airborne Soldiers past and present - CBTC shares the above video tribute.

What does all of 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.

Our Colorado Supreme Court justices also swear an 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 oath of office does not state that ”I will support only those parts of the Constitution I like or with which I personally agree or empathize.”

Unfortunately, the Colorado Supreme 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.” Several of the current justices 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…

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

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

Ultimately, though - it’s worth the effort.

Surely make you lose your mind…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ultimately, though - it’s worth the effort.

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

Ruling elites - be they monarchs or oligarchs, dictators or demagogues, or even elective bodies purporting to represent the will of the people - have long sought to suppress criticism and competition through the use of laws or regulations restricting the right and ability of individuals and groups to organize and speak out effectively.

Techniques have evolved from outright bans and brutal repression to a more subtle approach: suppression by regulation and legal intimidation.

In today’s Colorado, for example, your right to 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 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.

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.

Following a period of soliciting and reviewing written comments on the draft proposed rule, the office of Secretary of State held public hearings to allow concerned citizens and groups to express comments, concerns, questions, and suggestions.

It is interesting to note that of those who submitted written comments, those in favor of the new rule (relaxing the threshold for registering and reporting committee activities) included over a dozen individual citizens, and no special interest groups.  Conversely, those submitting comments against the new rule (advocating for continued imposition of what has been ruled an unconstitutional infringement of free speech) were ALL representatives of special-interest groups and organizations, including:

• Elena Nunez of Colorado Common Cause
• Jenny Flanagan of Colorado Common Cause
• Luis Toro of “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do).  (Comments submitted 1-26-11 and 5-3-11)
• Mark Grueskin, Democrat party attorney and frequent campaign finance litigant (Comments submitted 1-10-11, 1-26-11 and 5-6-11)
  Astute observers of Clear The Bench Colorado (or of Colorado politics in general) may recall Mark Grueskin from his role in establishing a shadowy and well-funded special-interest group to counteract the Clear The Bench Colorado judicial accountability efforts during the 2010 judicial retention elections.

(The full list of written comments submitted by interested individuals and groups before and after the hearing is available on the Secretary of State’s website)

Also of interest: NONE of the aforementioned special-interest groups, despite their professed zeal for “open, transparent, and accountable” practices including full disclosure and reporting of all contributions and expenditures, make their finances available for public view.  NONE.

Several individual citizens (but only a single representative of the above-listed special-interest groups, Jenny Flanagan of Colorado Common Cause) showed up in person to testify - almost exclusively (one exception) in favor of relaxing the threshold for Issue Committee registration and reporting).  Citizen activist Ari Armstrong (of Free Colorado) was on hand to testify, and also recorded testimony of others.

Clear The Bench Colorado Director Matt Arnold submitted written comments before the hearing, and also showed up in person to testify (video courtesy of Ari Armstrong, Free Colorado)

Both written comments and oral testimony conclude with what I consider the most powerful argument against Colorado’s campaign finance regime:

In summary: the attack dogs, firehoses and truncheons previously used to harass and intimidate citizens wishing to exercise their rights of free speech and association have been replaced as tools by the more ”civilized and sophisticated” use of lawyers and bureaucrats with the power to impose fines & penalties - even imprisonment - instead of mere physical beatings.

The overall effect - intimidation and abuse of power - remains remarkably similar.

Following the overwhelming weight of public comment and testimony in favor of raising the threshold for Issue Committee registration and reporting, in what must be considered a victory (albeit incremental) for free speech rights, the office of Secretary of State adopted the new rule on 13 May 2011.

Additional commentary on Colorado’s campaign finance regime (H/T Ari Armstrong):

• SOS Looks To Mitigate Burden Of Campaign Censorship Laws, 2 May 2011
• Why Colorado’s Campaign Laws Constitute Censorship, 5 May 2011
• CO Campaign Laws Chill Speech, 6 May 2011
• Colorado’s Campaign Laws Throw Common Sense Out The Window, 13 May Grand Junction Free Press
• Public’s ‘right to know’ can clash with right free speech, 14 May Colorado Springs Gazette

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 wheels of justice grind slooooooooowly…

Approaching the one-year anniversary of the initial “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) attack on Clear The Bench Colorado via filing a campaign finance complaint (a complaint which was later held to be “frivolous, groundless, and vexatious” - in other words, completely lacking legal merit - in court, although CEW tried again and got a judge to buy their argument a couple of months later), a final resolution on the many issues surrounding the case(s) - including the court’s award of legal fees payable by CEW to Clear The Bench Colorado, which they’ve so far refused to pay, despite owing us since July - drags on.

Several news articles last week picked up the story again when the Colorado Secretary of State - continuing his predecessor’s position that Clear The Bench Colorado rightfully relied on guidance to file as an Issue Committee, not a Political Committee as CEW alleged CTBC should have done instead, despite guidance to the contrary - filed an amicus brief in support of the appeal entered before the Colorado Court of Appeals.

Naturally, CEW cried foul - whining about the intervention and attempting to spin the story (with the aid of the Colorado not-so Independent media mouthpiece) to try to make Secretary of State Scott Gessler look bad.  However, even the left-wing spin machine Colorado Pols admitted not only that “Buescher’s staffers advised Clear the Bench to register as an issue committee” but also that

1. The Secretary of State’s office has an obligation to provide public interpretations of the campaign finance laws to the public, candidates, and committees. Here, the previous Secretary, Bernie Buescher, told Clear the Bench to register as an issues committee. The ALJ said he wasn’t bound by Secretary Buescher’s opinion, which the ALJ believed was wrong. The brief addresses only one issue, which is whether or not the ALJ was bound by the Secretary’s interpretation of the campaign finance laws.
2. Bernie Buescher is the supervisor of the attorney who filed the brief. That attorney is without a doubt the best and most ethical attorney in the State of Colorado. If you can find anyone who has ever been involved in a case with Maurie who disagrees, I will eat my laptop. That’s easy to say, because you won’t find anyone.
3. It’s common for an administrative agency or officer to file a brief defending the power and prerogative of that agency or officer. I don’t remember any cases where the officer previously represented the party that would benefit from the decision if the court decides the way the officer argued, though.
4. If Clear the Bench came before Secretary Gessler and Gessler participated in a decision involving CtB, then I would be all over that in a heartbeat. That would be a clear conflict of interest. That’s not what’s going on here, though. This is just a brief telling the Court of Appeals that the ALJ should have done what the previous Secretary said.

All spin aside, it is clear that “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) is desperately on the defensive in all aspects of this case - losing the judgment on the issue of attorneys’ fees, losing the attorney who successfully argued CEW’s round 2 complaint (working pro bono for CEW, Aaron Goldhamer of Sherman & Howard, LLC - as he dropped CEW as a client), and now likely to lose even that transitory “win” on appeal.  The organization has been discredited not only for transparently partisan bias, but for their lack of effectiveness in arguing cases (the former acceptable to their financial backers, but the latter - litigative and legal incompetence - the one inexcusable sin).

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work with legislators and others interested in reforming the systemic shortcomings of Colorado’s so-called “merit selection & retention” system to increase transparency and accountability to the public, and to provide useful evaluations of judicial performance.

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

Ultimately, though - it’s worth the effort.

“If we couldn’t laugh, we would all go insane.” Jimmy Buffet

Nowhere is this more true than dealing with Colorado’s consistently confusing and often arbitrary legal system and out-of-control judiciary - where the ruling majority on the Colorado Supreme Court recognizes no constitutional constraints, no limits to its untrammeled authority, no checks or balances to its power - in their view, the law means “just what I choose it to mean - neither more nor less.”  This “Through the Looking Glass” worldview has precious little in common with the justices’ sworn duty to uphold the rule of law - and support (not dismantle) the Constitution.

Although remaining mindful of 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”; keep your own property; bear arms in self-defense; and almost too many others to list); highlighting the judiciary’s dominant role in drawing up state legislative and congressional districts; and upholding the integrity of the judicial retention election process against the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench in violation of Colorado campaign finance law - is serious business, all work and no play makes Matty a dull boy.

So - scouring the internet so you don’t have to - Clear The Bench Colorado presents another edition of the Friday Funnies.

From the reliably humorous (if often irreverent) Cracked magazine (online) comes the following list of   “5 Awesomely Sarcastic Supreme Court Decisions“:

5.  Bertman v. Kirsch (1964) - dealing with government shenanigans concerning notice of appeal (the government filed a notice of appeal late on the due date, leaving respondent no time to file a response within the statutory deadline).  What makes it funny? The Supreme Court justice invoking Superman:

“I am aware of the argument that an able, alert, ever-diligent lawyer could have, had he tried hard enough, discovered that the Government had appealed — even in the closing hours of the sixtieth day. I do not doubt that had Bertman’s counsel been Superman, his X-ray eyes would have told him that a notice of appeal was being filed blocks away in the courthouse, or had he been a lawyer with no clients but Bertman he could have spent the sixtieth day hovering at the clerk’s office to see whether the Government would file a notice of appeal. But Bertman’s counsel (so far as the record shows) is not Superman, nor should the law expect him to be.”

4.  PGA Tour v. Martin (2001) - in which a golfer sues to be able to use a golf cart instead of walking, under the Americans with Disabilities Act (ADA).  What makes it funny? Justice Antonin Scalia, the Supreme Court’s funniest judge (as confirmed by a scientific study) waxes poetic on the “awesome responsibility… of determining the nature of golf.”

“We Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States … to decide What Is Golf. I am sure that the Framers of the Constitution … fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.”

(Scalia’s scathing wit highlights a basic fact: some issues are not - or should not be - justiciable; a fact acknowledged, in dissent, by a Colorado Supreme Court justice in the Lobato school funding case).

3.  Pottawatomie School Board v. Earls (2002) - in which the U.S. Supreme Court upheld drug testing for ALL extracurricular school activities (including the marching band and chess club).  Why is this funny? Seriously - the chess club on crack?   Band geeks blowing bongs?  Freaked-out Future Farmers?

Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree.”

2.  Los Angeles Board of Airport Commissioners v. Jews for Jesus (1987) - in which the U.S. Supreme Court unanimously ruled that (Surprise!) that “a resolution banning all ‘First Amendment activities’ at Los Angeles International Airport (LAX) violates the First Amendment.”  Why is this funny? It’s not, really - except that the Los Angeles Airport Commissioners actually argued otherwise with a straight face.

1.  Kyles v. Whitney (1995) - in which defense attorneys argued that testimony of four witnesses against a convicted murderer should be thrown out because “all clearly saw his face but hadn’t all agreed on his exact height and build. Why? One of them had seen Kyles only after he got into his getaway car.”  Why is this funny? Once again, it’s the Supreme Court’s funniest justice (Scalia) bringing on the humor with a ‘Lone Ranger’ reference (a metaphorical “silver bullet”, if you will):

To assert that unhesitant and categorical identification by four witnesses who viewed the killer, close-up and with the sun high in the sky, would not eliminate reasonable doubt if it were based only on facial characteristics, and not on height and build, is quite simply absurd. Facial features are the primary means by which human beings recognize one another. That is why … bank robbers wear stockings over their faces instead of floor-length capes over their shoulders; it is why the Lone Ranger wears a mask instead of a poncho; and it is why a criminal defense lawyer who seeks to destroy an identifying witness by asking ‘You admit that you saw only the killer’s face?’ will be laughed out of the courtroom.”

Finally, demonstrating that government’s claim to authority to tax every living creature earning a living is quite literal comes this story of a court upholding the power to impose an occupational tax - on a cat.

Yes, that’s right - in the 1982 case of Blackie the talking cat (Miles v. City Council, 1982), the courts upheld the authority of the city of Augusta, Georgia to “impose an “occupation tax” on the plaintiffs [Blackie and his human "guardians"].

Sadly, judicial abuses of your constitutional rights are no laughing matter.  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 unrestrained activism and political agendas in the courts.  We will continue to work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” judicial review process to increase transparency and accountability to the public, and to provide substantive and useful evaluations of judicial performance.

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

Ultimately, though - it’s worth the effort.