Denver District Court

Court Battles Shape School Choice in Colorado – and Nationwide

The continuing saga of the ongoing court battles over the Douglas County School Choice Scholarship program (in its various iterations) highlight the central (and increasing) role of the courts (as opposed to elected school boards, or the state legislature in whom constitutional authority for making education policy and resourcing decisions is vested) in deciding how – and under what conditions –  our children receive an education.

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

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

When an elected majority on the Douglas County School Board decided to create a school choice scholarship program in 2011, it was instantly challenged in court by diehard opponents of school choice, who sought to stop the program before it could educate any child outside the public school system.  The challenge revolved around whether an elected school district board has “the broad authority to contract with private schools for the provision of a public education to public school students” [per Education Policy Center] under the guise of opposition to “public funding” of education options outside the “public school” system.  One might think that making decisions about the provision of public education is precisely why county residents elect a school board, but apparently (at least in the view of the plaintiffs, and the courts in Colorado) those decisions are better made by appointed judges.

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

Unfortunately, all too often the answer from the courts has been: we judges do.

The odyssey of the Douglas County effort to create more school choice options is illustrative.

Beginning in 2011, when anti-choice activists brought the legal challenge in Denver District Court, Judge Michael Martinez  blocked implementation of the program just as the school year was starting – leaving many parents scrambling to find alternative education choices for their children enrolled in (and relying on) the choice scholarship program.  Judge Martinez later made the original temporary injunction permanent, effectively sidelining the program through the appeals process.

Even when that ruling was overturned by the Colorado Court of Appeals, which reversed the District Court and affirmed the constitutionality of the school choice scholarship program two years later (Opinion announced 28 February 2013), the injunction remained in place, as the anti-choice losers in that case almost immediately appealed to the Colorado Supreme Court.

Of course, “immediate” in terms of court calendars can take a while: it was over a year later before the Colorado Supreme Court formally granted the Writ of Certiorari, accepting the appeal on 18 March 2014 – which opened yet another long process of legal wrangling.

It wasn’t until the end of the year (following submission of extensive legal briefs by both sides) that the Colorado Supreme Court heard oral argument in the case – which had gained national attention as the “ground zero” in the fight for school choice across the country.

Ultimately, it would be another half a year (29 June 2015) before the Colorado Supreme Court issued its decision: an unusual 3-3-1 split plurality decision reversing the Court of Appeals: three of the Colorado Supreme Court justices (Chief Justice Rice, Justice Hobbs and Justice Hood) held that the CSP violated the Colorado Constitution; one (Justice Marquez) held that the CSP violated the School Finance Act on statutory grounds, and joined in the judgment.  Three justices (Justice Eid, joined by Justice Boatright and Justice Coats) agreed that the plaintiffs lacked standing on statutory grounds, and disagreed that the CSP was in violation of the Constitution.

Even that decision remains pending appeal before the U.S. Supreme Court, challenging whether the Colorado constitutional provisions (known as “Blaine Amendments”) on which the decision was based are themselves unconstitutional under the First Amendment.

Meanwhile, while the appeal of the original program – which included sectarian schools – was pending, the Douglas County School Board attempted to address those concerns with a new iteration of a school choice program excluding religious schools from participating (which, ironically, drew challenges from both sides of the spectrum: one challenging discrimination against religious schools, another one challenging the existence of any school choice scholarship program whatsoever, even if it did exclude religious schools – the pretense for the original challenge).  Coming full circle, the latter challenge ended up before the same judge (Denver District Court Michael Martinez) who again applied the permanent injunction to the new, non-religious school choice program – effectively killing any attempt to expand school choice in Colorado pending SCOTUS taking on (and ultimately deciding) the appeal of the Colorado Supreme Court decision.

The lesson for advocates of school choice?

Challenging entrenched education establishment special interests is a protracted, drawn-out and resource-intensive battle – with enormous stakes.  After all… it’s for the children.



Judge Stymies Douglas County School Choice – Again

The same Denver District Court judge who halted the Douglas County Choice Scholarship program five years ago (the Order Granting Permanent Injunction was issued 12 August 2011) stopped the successor program this month.

Denver District Court Chief Judge Michael Martinez ruled earlier this month to apply the permanent injunction in effect against the previous program against a new school choice program (the Choice Grant Pilot Program) approved in March by the school board (on a 4-3 vote). The new program was designed specifically to address the rationale used by the Colorado Supreme Court last year to ban the previous school choice program due to inclusion of religious (or “sectarian”) schools among those a parent could select.

Despite the lack of any religious or sectarian schools included in the new Choice Grant Pilot Program, the same opponents of school choice filed a lawsuit to stop the program (led by “Taxpayers for Public Education” and the American Civil Liberties Union) – decrying “use of public funds for private education.”

The lawsuit seeking to extend enforcement of the previous permanent injunction to the new program was actually the second lawsuit filed – another lawsuit was previously filed against the “new & improved” program alleging it is discriminatory for excluding religious schools from the program.  That lawsuit, filed in federal court by the Virginia-based Institute for Justice, was dismissed in July by U.S. District Court Judge Marcia Krieger, noting  “the law in this area is extremely unsettled” and the U.S. Supreme Court is considering a challenge to the Colorado Supreme Court ruling holding the original program unconstitutional.

The lawsuit leading to the permanent injunction took a somewhat convoluted path back to the courtroom of Judge Martinez.  The originally (randomly) assigned judge, Catherine Lemon, was recused “at the outset;” other judges rotated out; and the plaintiffs filed a motion requesting Judge Martinez, who been elevated to the Denver District Chief Judge, to assign the case to himself – which he did, on 24 June 2016 (exactly a month after the lawsuit was filed, and ten days after defendants filed their responses).  To call this unusual …would be an understatement.

Judge Martinez applied and enforced the original injunction against the Choice Scholarship Program (CSP) to the new School Choice Grant Program (SCGP) based on the argument that the new program “is in actuality a revision of the CSP:”

Plaintiffs assert, and Defendants do not contest, that there are only a few differences between the two programs: in the SCGP, vouchers are called grants instead of scholarships, religious schools cannot be private school partners, the fictional Choice Scholarship School is eliminated, and the percentage of “per pupil revenue” (“PPR”) which will be given out as a voucher is increased. Other than these few changes, the essence of the CSP substantially remains intact” (Order at 3)

Consequently, Judge Martinez held that because there is “no fundamental difference” between the programs, that the original injunction against the CSP could be applied to the SCGP.  Martinez acknowledged that “the Colorado Supreme Court focused its opinion on the issue of religious schools receiving public funding under article IX, section 7 of the Colorado Constitution and did not reach the remaining constitutional issues” but nonetheless applied the ruling to the new program lacking any such element because “the ultimate opinion of the Colorado Supreme Court was without limitation.” (Order at 4)

Therefore – despite the fact that the Colorado Supreme Court ruling (on an unusual 3-3-1 plurality split) striking down the original Choice Scholarship program did so entirely on the basis of alleging that the program ran afoul of the constitutional provision (described as a “Blaine Amendment”) prohibiting use of public funds “to help support or sustain any school… controlled by any church or sectarian denomination whatsoever” (Article IX, Section 7), and the complete absence of such elements in the SCGP – Judge Martinez ordered the CSP permanent injunction into effect against the SCGP and enjoining the Douglas County School Board from implementing the School Choice Grant Program.

So, school choice in Colorado (and nationwide) suffers a setback – at the hands of the same judge who dealt another setback five years ago.  It remains to be seen whether the setback is temporary, or more enduring; the U.S. Supreme Court may yet take up (and if it does, likely reverse) the appeal of the Colorado Supreme Court ruling striking down the original Choice Scholarship Program.  In any event, one thing is certain:
more court battles over school choice will be fought in both state and federal courts.



Do you Know Your Judge appearing on the 2016 Ballot?

We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.
— Abraham Lincoln

As Coloradans enjoy the last month this 2016 election year before being bombarded with political ads and mailers, MOST voters have little to no information on up to a third of the people asking for their vote: our state’s 3rd Branch of government, the judges.

Unfortunately, the vast majority of voters won’t be getting any better information before receiving their ballots – although “experts agree” that “more information to voters is what’s needed.”

“Only one third of Colorado voters feel they are sufficiently informed to decide which judges should be retained,” according to a 2014 survey commissioned by the state government. “Further, only one-quarter of Colorado voters feel that most of the electorate has enough information.” (Quoted from Colorado judges win elections despite bad reviews“)

Unfortunately, the official, government-sanctioned incumbent-protection “performance reviews” produced by the state’s Commissions on Judicial Performance (published and disseminated, at significant taxpayer expense, in the “Blue Book”) fail to provide much (if any) substance behind the published “recommendations” (almost uniformly in favor of “retaining” judicial incumbents in office).
The Blue Book “reviews” are thus little more than (taxpayer-funded) political ads for incumbents.

A recent Denver 9News (NBC) story, “Colorado judges win elections despite bad reviews” converted the “official” performance review survey results into letter grades for each of the 108 judges appearing on the 2016 ballot.  Amazingly, just like Lake Woebegone, all of the judges were graded “above average” (letter grades ranging from a high of “A-” to a low of “B-” with the vast majority receiving a “B+” grade).

When every judge appearing on the ballot is graded “above average” how can voters distinguish between “the good, the bad, and the ugly?

The Commissions on Judicial Performance (groups of political appointees charged with evaluating and reporting on the job performance of judicial incumbents) routinely fail to actually evaluate judicial job performance or provide adequate information sufficient for voters to base a decision.  Summarizing an incumbent’s resume and tabulating the results of surveys sent out to a select group of lawyers and other judges fails to answer the question posed to voters, “do they deserve another term – and why?

As a Denver Post guest commentary by a former Judicial Performance commissioner noted,

There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters.
If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do.  Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations.  Some commentators and observers have denigrated the narratives as a “rubber stamp” exercise for retaining judges.

In any event, why do we have political appointees (commissioners are appointed by the governor, attorney general, state legislators and the Chief Justice of the Colorado Supreme Court – the latter certainly seeming to have a conflict of interest) telling Coloradans how to vote?

Colorado voters deserve better information on these unelected officials, who (usually with little notice) exert enormous influence over their lives.  For a 4th straight election cycle, Clear The Bench Colorado is researching and evaluating the performance of the appellate court (statewide) judges appearing on the 2016 ballot (1 Supreme Court justice, 10 Court of Appeals judges), collected inputs on district and county judges from around the state, and will publish this information in an easy-to-read “scorecard” format as a resource for Colorado voters.

Our courts rule on important issues that seriously impact all Colorado citizens, including:

Colorado Republican Party files suit to form “party-sponsored” Independent Expenditure Committee despite legal ban

Despite failing earlier this year in an attempt  to get the Colorado Secretary of State to sanction a “party-sponsored”  Independent Expenditure Committee allowing the Colorado Republican Party to evade contribution limits (source and amount) applying to political parties, party chair Ryan Call has apparently decided to gamble the state party’s fortunes in the courts.  Despite lacking any assurance or binding opinion that forming a “party-sponsored” IEC is legal (in fact, the Secretary of State’s advisory opinion explicitly cautioned that even “a declaratory order would not prevent a person or organization from filing a campaign finance complaint against Petitioner”), Call rolled the dice by filing the IEC on Wednesday and immediately filing suit on Thursday in Denver District Court.

Interestingly enough, although the supposedly “independent” committee – filed as the Colorado Republican Party Independent Expenditure Committee – lists a physical address in Colorado (at state party headquarters), the registered agent for the committee, Harden Global, is located in Alexandria, VA (a Washington DC suburb).

Aside from the interesting twist in having the registered agent for the Colorado Republican Party Independent Expenditure Committee located across the country (a DC-area paid political consultant), the party’s lawsuit advances basically the same arguments that failed to convince the Colorado Secretary of State to issue a Declaratory Order several months ago.  Specifically, the party’s attorney continues to conflate the issue of party independent expenditures (for which there is legal precedent and constitutional protection) and the ability of the party to “sponsor, maintain, and operate an IEC” not subject to the contribution limits applying to political parties (for which there is neither precedent nor constitutional protection – indeed, the Colorado Constitution explicitly states the opposite).

Background and Constitutional/Statutory Framework

Following the passage of Amendment 27 in 2002 (enacted as Article XXVIII, Colorado Constitution), contribution limits have applied to organizations supporting or opposing candidates in state elections –including political parties.  Under current Colorado law, political parties may accept a maximum of $3,400 per year (state, county, local levels combined) in aggregate (total) contributions from any individual – and are prohibited from receiving contributions from corporations or labor organizations (unions).

Independent Expenditure Committees (IECs), a more recent statutory (vs. constitutional) creation, on the other hand, are not subject to contribution limits, and may support or oppose candidates, but only so long as the support and spending are” truly independent and not coordinated with the candidate.”  (cf analysis, Colorado GOP seeks approval for new independent expenditure committee)

Colorado Republican Party Lawsuit

Colorado Republican Party State Chair Ryan Call, represented by his law firm partner (and designated party attorney) Richard Westfall, filed a lawsuit seeking the Court’s advance blessing (via a Declaratory Order) for an entity combining the features of an “independent expenditure committee” (no contribution limits to amount and/or source) that would simultaneously be “sponsored, maintained, and operated” by the party and wearing the Republican party label  –
in many respects, seeking to “have their cake and eat it, too.”

The COGOP advanced the following main arguments in support of their lawsuit:

  • Supreme Court precedent affirming the right of political parties to make independent expenditures
  • Colorado’s constitutional/statutory framework is consistent with Supreme Court precedent
    • “Independent expenditures” are allowed so long as there is no coordination
    • “Any person” may make independent expenditures
    • “Political parties” are defined as a “person” under campaign finance law
    • “Independent Expenditure Committees” are not subject to contribution limits or source prohibitions

Additionally, the petition asserted that “the Republican party’s Independent Expenditure Committee will be structured and operated to ensure that no expenditures will be coordinated with candidates.”

Analysis of COGOP’s Arguments:

The COGOP lawsuit spends an inordinate amount of space asserting the right of political parties to make independent expenditures – a fact that is not in dispute.  The party is already able to make independent expenditures without necessarily having to form a separate committee (arguably, this is a default function of party organizations anyway).  The dispute arises from conflating the ability to make independent expenditures with the ability to receive contributions without limit to amount or source that is a special feature of IECs under Colorado law.

As noted in previously published analyses, the right for a political party to make unlimited independent expenditures is distinct from the legal ability of the party to raise funds not subject to contribution limits – which, like it or not, Colorado has imposed on political parties.

Additionally, the COGOP chair’s assertion of “significant structural and operational protections” preventing coordination is risible, as is the very notion that an entity owing its existence to the state party, with the director and management committee appointed personally by the state party chair, would be “independent” in any sense of the word.  Such an entity is almost by definition “pre-coordinated” – although it would not be constrained by party bylaws (bylaws theoretically restricting, for example, the IEC’s ability to spend or promise spending in order to influence primary elections).

Likewise, reliance on the party qualifying as a “person” under constitutional and statutory language, and thus eligible to form an IEC, also leads to an absurd result; since, following that logic, a candidate for office (subject to contribution limits) is likewise a “person” and would also be able to form an IEC as a “candidate-sponsored” entity (with similar “safeguards” against coordination, wink wink nudge nudge).

Indeed, the issue of “coordination” is central to the legality of the proposed “party-sponsored” IEC:

Petitioner must ensure the absence of “coordination” to avoid the potential for corruption or the appearance of corruption. (SOS Ruling at 9)

The Secretary’s advisory opinion closed in classically understated language:

The fact that the party exercises control over the appointment – and presumably removal – of the IEC’s executive director and management committee is potentially problematic.

Clear The Bench Colorado generally opposes the imposition of contribution limits or other restrictions on free speech in the civic and political arena (see, Speaking Out on Reforming Colorado’s Campaign Finance Laws) as unconstitutional abridgments of the 1st Amendment; in particular, the excessively complex and convoluted nature of campaign finance laws in Colorado challenge the Constitution, chill free speech, and curtail civic participation.  Any such laws that do remain in effect, however, must be fairly and equitably applied to everyone – with no “special exemptions” for favored entities.  It is our view that the COGOP Chair’s lawsuit is an attempt to create just such a “special exemption” and should be denied.

Read more about the COGOP Chair’s attempt to skirt Colorado Campaign Finance Law

Disqualified Adams County School Board candidate awarded “win” after District Court ruling; Secretary of State appeals

School Board election results in the Adams-12 school district were upended at the start of this week after a Denver District Court judge ruled that votes cast for an ineligible candidate must be counted – and the ineligible candidate received more votes than her opponent.

Candidate Amy Speers was discovered to be ineligible only days before election day (although many ballots had already been cast in the mail-ballot-only election) because she did not reside in the district.  Although declared ineligible, Ms. Speers declined to officially withdraw from the race, leading to an Election-day ruling by the Office of Secretary of State that votes for the ineligible candidate should not be counted:

Secretary of State Scott Gessler issued an emergency rule today following the announcement by the Adams and Broomfield County Clerks that they would tabulate votes for Amy Speers, whose name appears on the ballot in the Adams 12 Five Star Schools District 4 school board race. Speers was erroneously included on the ballot- only after ballots were printed was it determined that she lived outside the District 4 boundaries and was therefore not eligible to be a candidate for that race.

“No one disputes that after the school board erroneously certified Amy Speers as a candidate, it corrected the error and notified both Adams and Broomfield County that Ms. Speers is ineligible to run for office. We have spoken with the Clerks on this issue. They asked for clarification in the form of a rule. We have issued an emergency rule to provide that guidance so that we avoid confusion.”

Just over a week after the election, some district residents (represented by Democrat Party attorney Martha Tierney and attorney Ed Ramey) filed suit, claiming that votes for Speers should be counted (although she was ineligible and cannot take office) in order to trigger a vacancy appointment:

Ed Ramey, the lawyer for the school district residents who filed the lawsuit, argued that the law that applies to school boards says if a “duly elected” person lives outside his or her district, the seat is vacated; it doesn’t default (“Disqualified candidate wins Adams 12 school board race after new count” Denver Post 19 Nov 2013)

Colorado Secretary of State Scott Gessler appealed the District court’s late-Monday ruling to the Colorado Supreme Court on Thursday.

Can Ineligible Candidates be “Duly Elected” to Public Office?

Plaintiffs in the lawsuit seeking to count votes cast for the ineligible candidate (Speers) did not intend that she actually take office, but that she count as “duly elected” for the purpose of allowing the incumbent school board (not the district’s voters) to select a replacement via vacancy appointment.  Thus, achieving the legal status of “duly elected” would not equal actual election to (and occupation of) the office sought, but merely serve as a legal fiction to allow a vacancy appointment instead.

Plaintiffs based their argument on a particular parsing of the elections law:

Denver attorney Edward Ramey, one of the plaintiffs’ lawyers, said Hyatt’s oral ruling was guided by Colorado law, which provides only two circumstances in which votes are deemed invalid and therefore not to be counted — death or withdrawal of a candidate.

“Ms. Speers has neither died nor withdrawn to my knowledge,” Ramey wrote in an email.

However, Speers HAD been requested to withdraw by the Designated Election Official prior to election day (albeit after ballots had been printed, mailed, and in many cases voted on due to the mail-ballot nature of the coordinated election):

Once Ms. Speers’ disqualification and the error in certification of her candidacy were discovered, the school district, as the Designated Election Official, requested that Ms. Speers “submit a notice of withdrawal pursuant to C.R.S. § 1-5-412.” See Exhibits A and B to Brief in Opposition (letters from school district to Ms. Speers). Although she acknowledged her ineligibility to hold office, Ms. Speers declined to withdraw from the race.  (SOS Appeal for Review at 6)

In any case, as noted in the Secretary of State’s Appeal:

  • A person cannot be a “duly nominated” candidate or a “duly elected” officer if the individual does not meet the qualifications for office. Brief in Opposition at 15.
  • The vacancy statute in § 22-31-129(1) is inapplicable to this situation because Ms. Speers cannot legally be certified as the winning candidate, has not been “duly elected” for the director district 4 seat, and cannot initiate a valid term of office by swearing the oath of office because she did not meet the mandatory qualifications to become a candidate for office as set forth in § 22-31-107(1) at the time she became a candidate. Brief in Opposition at 18-20.

Colorado’s ballot access statute (§ 1-4-501(1) C.R.S.) states: “No person is eligible to be a designee or candidate for office unless that person fully meets the qualifications of that office as stated in constitution and statutes of this state on or before the date of the term of that office begins.”

Ergo, “a run for office by an unqualified individual is void rather than voidable. It should be considered “a nullity, invalid ab initio, or from the beginning, for any purpose.” Delsas v. Centex Home Equity Co., 186 P.3d 141, 144 (Colo. App. 2008).  (SOS Appeal for Review at 28)

 Quo Vadis?

The Colorado Supreme Court is not required to take up the appeal, but given the issues at stake (not just the results of the Adams-12 School Board election, but more generally, the issue of candidate eligibility, election certification and the Secretary of State’s authority for rulemaking), consideration of the case on appeal is highly likely.

It may yet be some time before the final results of the Adams-12 School Board election are known (or, indeed, actually final).

Read more about the Adams-12 School Board Candidate Eligibility case:

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 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.


State Election Law Once Again Challenged in Colorado Courts

The Colorado Election Law, HB13-1303 Voter Access and Modernized Elections Act of 2013, passed in haste last legislative session on a straight party-line vote (the Senate sponsors of the bill, Angela Giron and John Morse, were subsequently removed from office in Colorado’s first legislative recall elections in state history) has once again been challenged in court.

The Libertarian Party of Colorado, joined by several individual plaintiffs, filed suit in Denver District Court (Saturday, 2 November 2013) seeking to ensure that voters in this year’s coordinated (nonpartisan) municipal and special-district (including school board) elections were able to vote – and only able to vote – on those races for which they were eligible under state statute and the provisions of the Colorado Constitution.

The Complaint addresses provisions of constitutional language and previously existing statutory language conflicting with the recently-enacted legislation (HB13-1303) – in particular, different registration and residency requirements for voting on local elections and ballot questions.

Former state legislator Shawn Mitchell, the attorney for the plaintiffs in this challenge, stated:

As a former 14-year Colorado legislator, involved in the passage of many election bills, I’ve never seen voters’ rights and election integrity so ignored and abused. There was an agenda of reckless disregard for the impact on voters, candidates and citizen petitions.

The new law was introduced late in the session and crammed through over serious public outcry about bad drafting and unintended consequences. There are terrible impacts on average citizens and their local governments, conflicts with most local governments’ eligibility requirements for voting, and even constitutional violations.

The November non-partisan coordinated election is really about community self-governance. These elections are made up of over 1,000 local non-partisan contests for hundreds of towns, cities, school districts, library districts and fire districts, and have direct impact on the affairs of local governments and their citizens.

We’ll bring to the court’s attention the problems and confusion from cramming this new law on top of the current election code. We’ll ask the court to make sure people who are entitled to vote can, and those who shouldn’t, don’t.  [Emphasis added]

Key Arguments advanced in the Complaint:

  • VAMEA served to introduce conflicting provisions related to residency, eligibility and registration criteria to the remaining provisions of the Code. These conflicting provisions have resulted in the lack of uniform application of the Code as to eligibility to vote in the Election
  • VAMEA’s same-day voter registration provision conflicts with multiple registration/residency requirements for municipal, school board and special-district elections across the state
  • Differing voter eligibility requirements, and differing application of voter eligibility requirements within districts, creates the potential for violation of due process and equal protection of the laws under both Colorado and U.S. Constitution (14th Amendment) provisions
  • Conflicting statutory/constitutional provisions, and/or differential application of statutory and constitutional provisions, create the potential for ineligible votes and/or disenfranchisement of eligible voters as required by law

Key Relief (Court Action) Sought in the Complaint:

a. An order declaring that Defendants’ implementation of conflicting residency rules in counties across Colorado violates voters’ state and federal constitutional rights.

b. An order that imposing statutory eligibility periods for new residents without permitting voting in prior Colorado precincts violate electors’ state and federal constitutional rights by disenfranchising voters in local contests and questions

c. An order declaring Secretary of State’s Rule 2.2.2 be implemented in all counties for this election.

d. An order declaring that the Secretary report to each county the list of eligible electors changing their addresses on line anytime after October 4, 2013, and provide assistance to determine whether voters were disenfranchised from voting as eligible electors due to the default 22 day residency setting.

e. An order declaring that voters who were not allowed to vote in local contests and questions due to a move within the state of Colorado in the past 30, 25 or 22 days, depending upon the type of contest/question, be allowed to vote on the local races in their old precincts, if they so request.

f. An order declaring that the Defendants shall not present for canvass board certification, the results of the November 5, 2013 election contests and questions until a detailed analysis of ineligible voters, disenfranchised voters, and the margin of victory for every contest from all ballots across the state is compiled by the Secretary of State and presented to the Court for review.

g. An order declaring that all ballots already processed shall be segregated and remain unmixed and separate from all ballots that have not yet been processed, including after the latter ballots are processed.

h. An order declaring that new elections must be held for contests and questions where the margin of victory is less than the combined number of ineligible voters and disenfranchised voters for that contest or question, as determined by the canvass boards, the Secretary , and this court.


This most recent challenge to HB13-1303 Voter Access and Modernized Elections Act of 2013 highlights the deficiencies in the hastily-enacted legislation, which has already seen elements of the law set aside in previous court challenges.  Whether or not any results of the current election will be delayed or set aside depends on the number of potentially invalid votes cast (and the judge’s interpretation of both fact and applicable law).

It IS apparent that the conflicting provisions of the election legislation are likely to continue to draw successive court challenges unless addressed – and corrected – in the upcoming legislative session.

Read more about the Challenge to state election law in these documents:

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 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 picks Democrat contributor Hood as new Colorado Supreme Court justice

Colorado Governor John Hickenlooper announced his pick for the next Colorado Supreme Court justice late Friday afternoon, 25 October 2013: Denver District Court Judge William Hood III
(succeeding outgoing Justice Michael Bender, who is retiring effective 7 January 2014).

Prior to being appointed to the Denver District Court in 2007, Hood was a long-time contributor to Democrat candidates and causes: hosting events for Bill Ritter’s campaign and contributing the maximum amount ($1,000) in 2006, contributing to the State Democratic Party House Campaign Fund, and supporting Steve Bernard’s failed campaign for District Attorney in 2004.

Hood also has close ties to Democrat Party attorney (and frequent Colorado Supreme Court litigator) Mark Grueskin, dating from their time as colleagues in the politically connected (and politically active) Isaacson Rosenbaum P.C. law firm – associations that may have been related to his removal from the 2011 Congressional redistricting lawsuits, before the case was reassigned to Denver District Court Chief Judge Robert Hyatt, as contemporaneously reported by Law Week online:

Denver District Judge William Hood, who was randomly assigned to hear Colorado congressional redistricting lawsuits filed Tuesday by Republicans and Democrats, once was a law-firm colleague of the lead attorney for the Democratic side.

Before his appointment to the Denver bench in 2007, Hood worked at Isaacson Rosenbaum, the firm that until recently employed Democratic Party lawyer Mark Grueskin.

Asked about a possible conflict between himself and the judge, Grueskin said, “Even before you get to the issue that he and I were formerly colleagues, he may have a docket that’s full.”

Given Hood’s close associations with Democrat party attorney and frequent Colorado Supreme Court litigant Mark Grueskin, this pick could lead to a number of recusals in some high-profile, politically-charged cases that might come before the Colorado Supreme Court (Grueskin represented Democrat incumbent state senators Morse and Giron in failed challenges before the courts seeking to derail the ultimately successful and historic Colorado Recall elections leading to their removal from office).

Hickenlooper’s elevation of a partisan Democrat contributor to his predecessor in office further erodes the governor’s claim to moderation and impartiality in carrying out one of the key responsibilities of his office – 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.

Court Battles key in Colorado Recall Election victories

The unprecedented ouster of two incumbent state legislators in this month’s Colorado Recall Elections (state senators John Morse, SD-11 Colorado Springs lost 51%-49% and Angela Giron, SD-3 Pueblo lost 56%-44%, respectively) was historic not only in the outcome, but in the resources poured into the electoral fight.  Supporters of the incumbents spent over $3 Million (mostly coming from out-of-state special interests) while supporters of the Recall spent nearly $500,000 – flooding the airwaves and filling mailboxes with campaign advertisements and flyers, attempting to persuade those few voters who had yet to make up their minds about how (or even whether) to vote.

Yet despite the massive spending on the advertisements and volunteer-intensive “get out the vote” efforts, the electoral outcome was shaped far more by less-noticed, but ultimately MUCH more impactful, battles in our state courts.

Even the composition of the districts now held by Morse and Giron were determined, very much to the advantage of the Democrat incumbents, by court battles over the legislative district reapportionment process back in 2011.  (See the many contemporaneous articles on the Clear The Bench Colorado website, search keyword “reapportionment” for details –

Those court battles left the Democrat incumbents in those districts with a sizable registration and voter “performance” advantage (see, “Myths and Reality about the Colorado Recall Elections” for details).

The next round of court battles were fought over whether the Recall elections could go forward at all – as Democrat attorneys attempted to get the petitions for the Recall vote thrown out on a technicality.  This time, the Democrats lost – and lost resoundingly.  The Recalls (and mail ballots) were on the way.

However, just as the first mailing of ballots (to overseas voters) was starting, yet another court challenge was filed, seeking to uphold the constitutional provisions (and timelines) for candidate ballot access (which were incompatible with the recently-passed “all-mail-ballot-elections” legislation, HB13-1303).  This time around, the challenge (and the primacy of the Colorado Constitution over statute) won – forcing the elections to be held primarily as polling-place elections, since the candidate certification deadline of 15 days before the election date made “all-mail-ballot” voting practically impossible.

This case may have been the most important in shaping the ultimate outcome of the Recall elections – possibly even saving the Recall effort, since “all-mail-ballot” voting favors the (Democrat) incumbents (admitted by the Left in attacking the ruling, saying):

“With a recall election that voters have to attend in person, lower turnout is likely, which is historically not beneficial to the Democratic incumbents in off-year elections.”

(Note: Losing incumbent state senate president John Morse blamed his loss on the lack of an “all-mail-ballot” election; ironically, Colorado Republican state chair Ryan Call had opposed the lawsuit and criticized the court ruling which set aside the “all-mail-ballot” provisions of the recently-enacted election law for the Recall vote).

The same case empowered the Colorado Secretary of State to issue new rules for the Recall elections, including some intended to reduce the opportunity for voter fraud by tightening the definition of “residency” requirements under the vague (and allegedly vote-fraud enabling) provisions of the Morse-Giron sponsored new elections law (HB13-1303).

Yet even those court-authorized rules changes were subjected to yet another round of legal challenges. Several of the new rules (including the clarified residency requirements and provisions expanding the use of E-mail ballot delivery) were struck down as exceeding the court’s mandate to allow new rules only in those areas needed to ensure compliance with the constitution’s Recall elections language.

last-minute challenge attempting to force Pueblo County Clerk & Recorder Gilbert “Bo” Ortiz to allow poll-watchers full access to observe the process (as required under state elections law) after reported voting irregularities was denied a hearing by a Denver judge, raising fears of vote fraud.

(For more on all of the Recall-related court challenges, search keyword “recall” on the Clear The Bench Colorado website).

Finally, the court case that didn’t happen (but probably should have) – allowing the out-of-state money machine to funnel massive contributions to the anti-Recall forces while skirting campaign finance laws. Challenging the multiple anti-Recall committees before an administrative law judge (ALJ) would have not only highlighted how money was shifted around by various special-interest groups to avoid campaign contribution limits and reporting requirements, but also (if successful) could have resulted in fines and penalties to the Bloomberg-backed machine in excess of $1M (yes, that’s one MILLION dollars).

Not to take anything away from the magnificent grassroots effort to get the Recall campaigns rolling, the various individuals and organizations joining in to help the effort, and the countless volunteer hours put in to gather petitions and “get out the vote” – but ultimately, these court cases may prove to have been the deciding factor in Colorado’s historic recall elections.

We continue to ignore these lessons at our peril.

Read more about the Colorado Recall Election court battles:

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 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 Recall Election rules undergo final adjustments after successful challenge to E-mail balloting in Denver District Court

The Colorado Courts have once again weighed in on Colorado’s historic legislative Recall elections after hearing a challenge to proposed rules allowing E-mail balloting (potentially including both delivery and return of ballots by E-mail for the general voting public, on request), absentee ballots and early voting.

The latest round of legal wrangling was set off by a “Motion to Amend Judgment” filed by the Colorado Secretary of State on 24 August (Saturday) seeking Denver District Court Judge Robert McGahey’s approval of final (well, intended to be final) adjustments to the rules governing the Recall elections
(set for September 10th).

Secretary Gessler’s  ”Motion to Amend Judgment” drew a challenge from the Libertarian Party plaintiffs in the original successful constitutional challenge to ballot access and mail-balloting rules, who filed a Response in Opposition on Tuesday, 27 August (on the same day, the Secretary of State’s office invalidated over half of the petition signatures turned in to qualify the Libertarian, Jan Brooks, as a successor candidate for the ballot in the SD-11 Morse recall election).

Remaining parties to the original lawsuit, including Pueblo County Clerk & Recorder Gilber “Bo” Ortiz and Democrat Party “go-to” attorney Mark Grueskin, piled on with their own “Motion Challenging” and “Motion to Intervene“, respectively.

Following what was no doubt a long night of stimulating reading, Denver District Court Judge McGahey presided over a hearing on the respective Motions on Wednesday, and earlier today (Thursday) struck down some of the rules previously published by the Colorado Secretary of State, particularly those dealing with “Emergency” ballot requests, absentee mail ballots and E-mail voting.

El Paso County Clerk Wayne Williams summarized the changes in a communique distributed to candidates, party officials and other select interested parties (Important Changes on Elections Rules):

Based on Pueblo County’s challenge to the Rules issued by the Secretary of State, earlier today the District Judge ruled that the SOS Rules cannot contradict the portions of Colorado election law that are not unconstitutional   Therefore, several changes important to voters are occurring:

1.      All residents may request a ballot be mailed to them.  BUT

a.       If the request is not received by the Clerk & Recorder by 11:59 p.m. on Tuesday, September 3, the ballot cannot be mailed.

b.      The ballot cannot be electronically transmitted from our office to the individual, but instead must be mailed (for requests received by September 3) or picked up by the voter at our main office by Friday, September 6.

c.       The ballot must be returned to the Clerk & Recorder by 7 p.m. on September 10.  Colorado law provides the eight-day return extension (with mailing by 9/10) only to UOCAVA voters.

d.      For voters who submit the prior form by the September 3rd deadline will be mailed the ballot as provided above.

e.       We are contacting the 53 voters who previously were sent excuse-based ballots electronically and we are mailing them a ballot.

2.      New forms for emergency (for which electronic transmission but not hand-delivery is permitted) and for mail-in ballot will be placed on our website as soon as we have them.  The SOS anticipates this will be by the end of the day to day.

3.      Several other minor changes were made.

Pueblo County Clerk & Recorder Ortiz also won a challenge to begin early voting beginning tomorrow, Friday 30 August, and to send out absentee ballots by mail on request (“no excuse absentee ballots”).  Due to an ongoing legal challenge to the Colorado Secretary of State’s determination of insufficiency for petitions submitted to add Libertarian Jan Brooks to the SD-11 (Morse) Recall ballot, El Paso County still must delay printing ballots or opening early voting until that is resolved (by the start of next week).

Barring any further legal challenges or last-minute surprises, these are the final (FINAL!) voting rules governing Colorado’s historic legislative Recall elections.  ;-)

Read more about legal challenges in the Colorado Recall elections:

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 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.