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

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

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

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

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

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

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

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

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

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

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

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

Ultimately, though - it’s worth the effort.

The Colorado Judicial Branch, “[o]n behalf of Gov. John Hickenlooper, Attorney General John Suthers and Chief Justice Michael L. Bender,” recently announced “the opening of the application period for 45 vacancies on judicial nominating commissions across the state of Colorado.”  (Colorado Judicial Branch press release, 15 September 2011)

Some positions are open now; the majority of vacancies will occur when current commissioners’ six-year terms end Dec. 31. All commissioners serve as volunteers. Applications are due on or before October 14, 2011.

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

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

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

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

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

According to the state courts website (Judicial Nominating Commissions), there is one current vacancy on the Supreme Court Nominating Commission (a non-attorney who must reside in the 4th Congressional District); another position until recently vacant was filled with Jeffco Chief Deputy DA Charles Tingle (a Republican) for the 7th Congressional District attorney slot.  An additional 3 seats on the commission (one attorney, from the 5th Congressional District, and a non-attorney each from the 2nd and 7th Congressional Districts) are opening when the currently serving commissioners (all Republicans) term expires.  All commissioners serve as volunteers. Applications are due on or before October 14, 2011.

UPDATE: Law Week Colorado profiles the current members of the Supreme Court Nominating Commission (”Meet Those Who Will Help Select Colorado’s Next Justice“)

(For a full list of district commission openings, view the Judicial Nominating Commissions and scroll to the bottom)

From the press release:

Application forms for vacancies on the various commissions may be found on the Colorado Judicial Department web site at http://www.courts.state.co.us/Courts/Supreme_Court/Nominating.cfm. Completed application forms may be mailed to Romaine Pacheco, Governor’s Office of Boards and Commissions, 136 State Capitol Bldg., Denver, CO 80203.  They also may be faxed to 303-866-6368 or sent by e-mail to boards@state.co.us.

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

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

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

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

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

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

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

Ultimately, though - it’s worth the effort.

The Lobato v. Colorado school funding lawsuit concluded its fifth and final week in trial court in Denver last Friday - with plaintiffs seeking

billions of dollars of additional funding for schools, though it’s unclear where that extra money would come from. (Denver Post, “Colorado school funding trial enters likely final week“)

This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends - unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).

Plaintiffs scored a major victory when Denver District Judge Sheila Rappaport ruled to exclude evidence on the state’s budget and fiscal situation, as well as evidence on relevant constitutional provisions including the Taxpayer’s Bill of Rights (TABOR) and the Gallagher Amendment (restricting property tax collections).

According to an article in last weekend’s Pueblo Chieftain (”State’s pocketbook won’t figure in schools suit“),

Kathy Gebhardt, a lawyer for plaintiffs in Lobato v. the state of Colorado, told the education collective Colorado School Finance Project on Friday that exclusion of evidence related to the state’s budget condition was a key victory for her side in five-week trial that concluded last week.

Gebhardt said her legal team filed the motion “thinking that we probably had a 5 or 10 percent chance of winning on that, and we won, which pretty much I think gutted a big part of the state’s defense.”

In lawsuits challenging the adequacy of school funding in other states, plaintiffs rarely have sought similar rulings.

Although Judge Rappaport “does not expect to rule on the case for at least another month” the preliminary rulings do not bode well for the state, which “cannot afford to lose.”

A court ruling in favor of the plaintiffs could not only precipitate a constitutional crisis, but lead to a fiscal and budgetary train wreck of epic proportions.  Indeed, as Governor Hickenlooper correctly points out, the consequences for Colorado would be “devastating.”

If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

Read more about the Lobato school funding case in these recent articles:

• “Lobato case primer” (Education News Colorado, 11 August 2011)
• “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
• “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)

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

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

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

Ultimately, though - it’s worth the effort.

The Lobato v. Colorado school funding lawsuit enters its fifth and (likely) final week in trial court in Denver this Monday - with plaintiffs seeking

billions of dollars of additional funding for schools, though it’s unclear where that extra money would come from. (Denver Post, “Colorado school funding trial enters likely final week“)

This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends - unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).

Despite the lack of correlation between spending and performance - and despite the failure of court-imposed school funding increases in several states (including Colorado neighbors Kansas and Wyoming) to achieve increased school performance, despite revenue and spending increases -

In Colorado, where per-pupil spending was $8,782 in 2008-09, students often outperformed students in Wyoming, where funding - following a school finance lawsuit - was $14,268 per pupil.

plaintiffs continue to seek additional money that the state simply does not have.  A court ruling in favor of the plaintiffs could not only precipitate a constitutional crisis, but lead to a fiscal and budgetary train wreck of epic proportions.  Indeed, as Governor Hickenlooper correctly points out, the consequences for Colorado would be “devastating.”

If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

Read more about the Lobato school funding case in these recent articles:

• “Lobato case primer” (Education News Colorado, 11 August 2011)
• “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
• “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)

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

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

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

Ultimately, though - it’s worth the effort.

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.

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

• Lobato v. Colorado school funding lawsuit:

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

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

This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends - unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).

The authors are correct in one regard:

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

If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.

• Douglas County school choice lawsuit:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ultimately, though - it’s worth the effort.

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

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

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

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

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

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

For additional information on this case, read:

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

Lobato v. Colorado education-funding lawsuit

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

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

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

This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends - unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).

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

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

Read more about the Lobato school funding case in these recent articles:

• “Lobato case primer” (Education News Colorado, 11 August 2011)
• “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
• “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)

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

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

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

Ultimately, though - it’s worth the effort.

The potentially budget-busting Lobato v. Colorado education-funding lawsuit - restored to life in October 2009 by the Colorado Supreme Court after having been rejected as non-justiciable by two lower courts - enters its second week of trial court hearings today.

Numerous analysts and commentators have noted that if the Lobato lawsuit succeeds, it will negatively impact Colorado’s schools and end up hurting - not helping - Colorado’s school-age children.  Shortly before the lawsuit went to trial last Monday, Colorado’s Democrat Governor John Hickenlooper and Republican Attorney General John Suthers took the unusual step of issuing a joint statement opposing the lawsuit, “arguing that it could cost the state billions of dollars if it loses in court.”

Over the weekend, Colorado’s leading newspapers weighed in further on the issue.

Sunday’s Denver Post (”Future uncertain if plaintiffs win education-funding Lobato case“) highlighted the uncertainty around just how deeply the lawsuit could affect Colorado’s budget if successful, calling it “uncharted territory.”  The Post article did note, however:

In other states where such school-funding “adequacy” suits have prevailed, court decisions have forced greater spending on schools. (Emphasis added)

The Pueblo Chieftain’s Sunday editorial, “Billions More,” was less timorous in its conclusions:

HERE WE are trying to dig ourselves out of the Great Recession, with Colorado’s state budget barely balanced with scads of gimmicks, and now a group is seeking a court order for the state to spend umpteen billions more on public schools.

The article further noted the dubious constitutional grounds for the lawsuit:

Attorney General John Suthers argues - correctly, we believe - that discretion in school funding constitutionally rests with voters and lawmakers, not the courts. He said a ruling in favor of the plaintiffs could cost the state up to $4 billion annually.

Worse, the article notes, the plaintiffs have also asked for massive - and immediate - increases in school construction:

Moreover, because the lawsuit asks for massive new school construction, the suit could cost the state an additional $18 billion. (Emphasis added)

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

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

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.

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

An additional article (”More discussion on Colorado Congressional Redistricting and state legislative reapportionment“) further discussed key terms and concepts relating to how Congressional and state legislative boundaries are determined.

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

As the legislative session draws near to a close, the deadline for our elected representatives to carry out their constitutionally-mandated duty to re-draw Congressional district boundaries (Colorado Constitution Article V, Section 44) is down to the final week (the session must end by midnight, 11 May 2011).  In a colossal game of “chicken”, however, it appears that one side appears determined to send the issue to the courts, not as a response to an impasse in negotiations, but as the planned approach all along.

Around the state, media coverage of the Redistricting battle has noted - and almost universally condemns - the likelihood of the Congressional district maps being decided by the courts.

Last Friday’s Glenwood Springs Post-Independent editorial (”Keep Western Slope interests intact by preserving 3rd District“) noted:

It seems a matter of common sense that the 3rd District, historically configured as a predominantly Western Slope district, should be largely preserved under redistricting, Garfield County included.

This issue now looks to be headed to the Colorado Supreme Court for resolution, if it can’t be worked out across the wide partisan divide of the full state Legislature. …

Redistricting is not about protecting the interests of one political party or the other. It’s about keeping communities of common interest and geographical regions together in a congressional district where these interests are likely to be best represented.

Monday’s Fort Morgan Times weighed in from the 4th Congressional District, also threatened with being split in half (”Redistricting lacks bipartisan map for Congress“):

Committee Republicans have said that their best chances of getting a fair map would have come through negotiations within the redistricting committee, asserting that Democrats control the Senate, governor’s mansion and the Colorado Supreme Court. That body rejected a Republican map rushed through the General Assembly in the last three days of the 2003 session and instead ordered the state to adopt one drawn by a Denver District Court judge the previous year.

A Boulder Daily Camera editorial last week (”Drawing a fair Congressional map should not be about seat numbers“) decried both the idea of sending it to the courts and the false premise of “competitiveness” as a basis for drawing district boundaries:

The Democrats and Republicans on the committee unveiled about a dozen maps and have been picking those apart ever since, less “kumbaya” and more “the last time we did this, the Colorado Supreme Court had to intervene.”

Colorado’s Congressional Redistricting battle even made national news, with this Washington Post article: “Colorado deadlocks on redistricting, with plenty at stake”

The Denver Post alone ran about a half-dozen articles on Congressional Redistricting over the last week:

• Wednesay, 4/27/11: “Easy as pie? Bipartisan failure on redistricting“
• Thursday, 4/28/11: “Colorado Dems unveil new redistricting bill“
• Friday, 4/29/11: “GOP calls Democrats’ new Colorado redistricting bill unacceptable“
• Monday, 5/2/11: “Gerrymandering by any other name“
• Tuesday, 5/3/11: “Colorado Republicans unveil compromise redistricting map“
• Wednesday, 5/4/11: “Public asked, again, to weigh in on Congress maps”
  • “Democrats and Republicans are both inviting Colorado voters to the state Capitol on Thursday to weigh in on new proposals to redraw the state’s seven congressional districts.”

Clear The Bench Colorado urges Colorado citizens to take advantage of what may be a final opportunity to weigh in on how - and whether - the Colorado General Assembly exercises its constitutional duty (it IS the responsibility of the General Assembly - and no other body or branch of government, according to our state Constitution (Article V, Section 44) - to do the job.  Citizens can sign up to testify at the Congressional Redistricting Committee hearing scheduled for 2:00 p.m., Thursday, May 5, in House Committee Room 112 at the Colorado Capitol.

Additional references:

• Constitutional Provisions Controlling Reapportionment/Redistricting (official Colorado state website, which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)
• Redistricting in Colorado (Ballotpedia site - although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site - contributions come from a variety of sources and are frequently edited - proceed with some skepticism)

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

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

Ultimately, though - it’s worth the effort.