Denver Post

Colorado Supreme Court Justice Alex Martinez announces impending resignation, takes city job in Denver

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:

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.

Monday Media Review: School choice, school funding lawsuits highlight courts’ inappropriately rising role in education policy

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.

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.

Weekend Wrap-up: Colorado courts ruling o’er state schools

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:

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:

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.

Monday Media Survey – Lobato education-funding lawsuit budget-buster aided and abetted by Colorado Supreme Court

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.

Midweek Update: more media coverage of Redistricting battle

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:

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.

Merry Monday Media Review: Clear The Bench Colorado, Colorado Supreme Court in the news

Clear The Bench Colorado continues to make news (except in the pages of the Denver Post, which apparently continues its editorial policy of suppressing information that might upset its highest-paying – $1.6M/year – tenants) around the state in the aftermath of this year’s judicial retention elections (which gained attention not just in Colorado – again, largely excepting the Postbut in national news reports).

The big news for CTBC – and of course from our perspective the most welcome news – was last week’s confirmation by Administrative Law Judge (ALJ) Robert Spencer that “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) was ordered to pay Clear The Bench Colorado over $13,000 in legal fees stemming from their “substantially groundless and frivolous” campaign finance complaint against CTBC (originally filed in May 2010).

The story was first reported online in Law Week Colorado (a generally reliable observer and source of information regarding the Colorado legal-judicial scene) on 15 December (“Ethics Watch Must Pay Attorney Fees In Clear The Bench Case“).  The Law Week article summarizes the judgement, provides some background on the complaint, and provides the full text of the ALJ ruling ordering CEW to pay Clear The Bench Colorado.

Also covering the story on 15 December was leading Colorado political online news outlet Face The State (publishing within an hour or so of the Law Week article).  The Face The State article (“Self-styled ethics watchdog slapped with the tab for its legal attack“) adds context and background information on CEW, CEW’s complaints, and CEW’s history of filing harassment claims (along with a copy of the judge’s order for Colorado Ethics Watch to pay Clear The Bench Colorado’s legal fees in pdf format).

Picking up the story on Friday, Denver’s alternative weekly Westword (often a source of excellent investigative journalism) covered the issue in a bit more depth (landing some quotes from the loser, CEW’s Luis Toro): “Colorado Ethics Watch told to pay Clear the Bench Colorado $13,000 in legal fees.”  CEW signaled their intent to “keep on doing what we’re doing” despite the legal rebuke.  (Surprise!)

Other news coverage of Clear The Bench Colorado concerns the ongoing campaign finance complaint against the legal-establishment special-interest consortium behind the “Know Your Judge” Campaign in support of Colorado’s judicial incumbents in this year’s retention elections.  Again, Face The State was on top of the story noting that former Colorado Speaker of the House Terrance Carroll (D-Denver) is on the legal team “defending a consortium of legal groups accused of violating state campaign laws.”  The article (“Your witness, Mr. Speaker“) notes that the “Know Your Judge” Campaign (consisting of nonprofit groups The League of Women Voters, the Colorado Bar Association, the Colorado Judicial Institute, and the Institute for the Advancement of the American Legal System) may have “illegally campaigned for the justices’ retention by not filing with the state as a political committee.”

Face The State‘s article was also picked up by Law Week (published as “Outgoing Speaker Will Handle Election-Law Case“).  Both articles noted:

At the heart of the complaint was a website funded by the groups called Know Your Judge, which led visitors to information explicitly recommending retention. They also paid for radio and television advertisements.

As detailed earlier by Face the State, if the complaint is upheld, a judge can levy fines of $50 per day for late reporting, plus a fine of between $170,000 and $425,000.

If successful (the case has now been set for hearing on 23 February 2010, thanks to delays generated by a barrage of legal maneuvering by the former Speaker’s “politically connected” law firm team from Greenberg Traurig) the combined fines and penalties would represent the largest adjudicated Campaign Finance Law violations in the history of Colorado.

In Other News…

The big news about the Colorado Supreme Court was the accession of the newest justice, Monica Marquez, to replace outgoing Chief Justice Mary Mullarkey (who wasn’t voted out, but chose to resign before facing the voters in this year’s retention elections).  While the accession of a new justice to the Colorado Supreme Court is certainly newsworthy,  the number of news stories referencing the ethnicity and sexual orientation of the Colorado Supreme Court’s newest justice – a matter which should be of supreme indifference in assessing judicial qualifications, character, temperament, and performance – continues to be astounding.

From the Denver Post’s article (“Colorado Supreme Court milestone a family affair“) - which at least has the good taste to lead first with the human-interest family connection before bringing up her ethnicity and sexual orientation – to a veritable plethora of blogs, journals, and other media – the phrase “Marquez is the first Latina and the first openly gay jurist on the state’s high court” comes up again and again.  A representative sample:

…and a host of other niche publications (I got tired of counting after the first half-dozen or so).

One of these days it would be nice to focus on a jurist’s qualifications and performance rather than the distractions of ethnicity and sexual orientation.

As far as CTBC is concerned the jury is still out on Justice Marquez’s performance, although we remain skeptical that she was the most-qualified of the potential picks, and continue to harbor concerns about her background in advocating for several unconstitutional rulings in the past few years.  She deserves – and should get – a fair review with careful scrutiny given her track record (as an attorney; she’s never before been a judge) and circumstances of her selection to the state’s highest court.

Fortunately, voters will have the opportunity to render judgement on Justice Marquez’ performance in two short years, as she comes up for a retention vote in November 2012.

Although this year’s campaign (and election) is over, the fight to reform Colorado’s out-of-control legal/judicial complex continues.  In the near term, Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for their violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will 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.  For both of those endeavors, we would appreciate 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.

Balance of Power on Congressional Redistricting & Legislative Reapportionment rests with Bender, Colorado Supreme Court

Amateurs study tactics, professionals study logistics.” (Military aphorism, variously attributed)

Translating from the military vernacular to the political, “amateurs” focus on short-term electoral gains (transitory shifts in legislative majorities or changes in who holds political office) while “professionals” focus on building long-term institutional and philosophical shifts – holding the “high ground” and winning the “hearts and minds” of the electorate by determining the terms of political discourse.

In Colorado this year, the elections with the greatest and most long-lasting implications for the future of the state were not the votes for legislative or executive office, but the once-in-a-decade opportunity to hold an increasingly powerful and expansive judicial branch accountable to the public and to their sworn duty to uphold the Colorado Constitution and the rule of law.

Unfortunately, the effort to educate Colorado voters to what was at stake fell short (despite achieving the greatest percentage of “NO” votes for incumbent state supreme court justices in Colorado history) due to insufficient resources to reach all of the states’ voters.

Among the most important near-term implications on the political front: the continued dominance of the judicial branch in determining the boundaries of Colorado’s state legislative and Congressional districts – with major implications for the future of the tenuous toehold of Republicans in the state legislature (merely gaining a meager one-member majority in a single chamber in what was otherwise a landslide year for the GOP nationwide).

Republicans in Colorado shot themselves in the foot by failing to realize and effectively mobilize resources to deal with this fact at the state level.

Interestingly, a recent Denver Post article continues their tradition of providing information of interest and relevance to the elections after the vote is held (and too late to actually influence the outcome).

The article (“Who holds the key on redistricting?“) published in The Spot political blog, educates the political “amateurs” with a summary of who truly holds the power in drawing the state legislative and congressional maps:

Conventional wisdom holds that Republicans gained a toehold in the looming 2011 redistricting battle by winning back the state House* last Tuesday.

While a House majority helps the GOP’s cause, the balance of redistricting power – particularly of state legislative districts – rests squarely with Democrats, should they choose to exercise it. That point was likely reaffirmed Wednesday, when Justice Michael Bender, a registered Democrat, was appointed Chief Justice.

The political “professionals” running the show for the “progressive” majority which continues to dominate Colorado politics (despite a public majority view that runs counter to that ideology in this state) once again outmaneuvered the amateurs on the “right” – putting resources where they could influence the longer-term big picture:

In 2001, when Dems held only a majority in the Senate, they knew the courts were their best alternative. The balance of the current high court – where five of seven members were appointed by Democratic governors – still appears to rest with Democrats…

In reapportioning state legislative districts (which was taken out of the hands of the legislature several years ago and handed to an appointed commission), the Democrat advantage (thanks to the recent elevation of partisan Democrat Michael Bender to the office of Chief Justice) is even more pronounced. The 11-member commission is appointed by the legislative branch (4 picks total, 2 from each side), the executive (governor picks 3) and the final (and decisive) 4 judicial branch appointments (chief justice).

(Injecting the chief justice into this inevitably political process is yet one more corrupting influence contributing to the increasing polarization and politicization of our judiciary in Colorado).

As the Post’s political editor Curtis Hubbard sums up:

Put simply: Democrats have the edge in the capitol and the courts on congressional redistricting, and have an overwhelming 9-2 advantage in appointing members to the committee that will oversee legislative redistricting.

Although Colorado voters failed to exercise their right to remove 3 politicized judicial incumbents from office via the ballot box this November, Citizens should insist upon (and legislators should implement) measures to remove the judicial branch from the corrupting position of influencing policy and politics in order to concentrate on their primary duty to defend the Constitution and uphold the rule of law.

The fight to reform Colorado’s corrupt legal/judicial complex continues.  Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will 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.  For both of those endeavors, we would appreciate 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.

Mid-month Media Review: Colorado Supreme Court, judicial retention elections, and Clear The Bench Colorado in the news

Clear The Bench Colorado and this year’s Colorado judicial retention elections – along with the subsequent selection of Justice Michael Bender (who was retained in office with the lowest percentage approval in state history) as the next Chief Justice of the Colorado Supreme Court – continue to garner significant media coverage in the weeks following this year’s historic elections.

Numerous articles across the country continue to weigh in on the subject of judicial retention elections in general, with mention of the successful effort to oust incumbent state supreme court justices in Iowa and coverage of other statewide efforts which fell short (including our neighbor to the east, Kansas, and of course in Colorado).

Many of the articles note that this year’s judicial retention elections may be the harbinger of a real paradigm shift in how the public views judges on the ballot, with a growing movement to hold judges – particularly the more politicized and politically-active state supreme court justices – accountable.

Clear The Bench Colorado noted several of the relevant articles in our Post-Election Media Review post just after the elections, and in our last week’s post (“A New Era for Judicial Retention Elections?“) and most recently “A Tale of Three States” (comparing the judicial retention elections and outcomes in Iowa, Kansas, and Colorado) last Friday.

Judicial retention elections this year may well have been the most significant underreported political story of the year, with opposition and accountability efforts mounted in more states than ever before – which has some defenders of the status quo legal establishment worried.

A recent article published in The Palm Beach Post News (“Florida judges may be on political hot seat“) profiled the campaign to unseat two Florida Supreme Court justices against the backdrop of similar efforts nationwide:

Using e-mails, websites and YouTube videos, conservative groups waged a stealth campaign against Florida Supreme Court Justices Jorge Labarga and James Perry.

And some legal watchers are worried.

Among the “worried” legal watchers quoted in the article: former Colorado Supreme Court justice Rebecca Love Kourlis (executive director of the Institute for the Advancement of the American Legal System, IAALS, which is the subject of a campaign finance complaint for their electioneering activities in support of Colorado’s incumbent justices this year).

“I think we’re going to see it more and more,” she said. “Retention elections around the country are becoming the new battleground.”

Colorado Supreme Court Goes on a ‘Bender’

The other significant news in the aftermath of this year’s judicial retention elections was the selection of Justice Michael Bender as the next Chief Justice of the Colorado Supreme Court.

As previously noted, Justice Bender – a close political ally and ideological inheritor of the mantle of outgoing Chief Justice Mary Mullarkey, who resigned rather than face the voters this year – retained his office by the narrowest margin in Colorado history for an incumbent state supreme court justice (along with his colleague, and ideological ally, Alex Martinez) less than a week earlier.  His retention in office was supported by an organization (the Institute for the Advancement of the American Legal System, IAALS) in which he sits on the board (potentially violating the judicial code of conduct); the group is also the defendant in a pending campaign finance law violation case, which the group’s attorneys recently obtained a delay in bringing to a hearing (originally set for 12 November 2010).

Numerous media outlets around the state noted the selection of Bender for the Chief Justice slot with varying degrees of detail, including:

An interesting addition to the list of mainstream media outlets commenting on the appointment was the left-wing political gossip site Colorado Pols.  Normally I wouldn’t credit this collection of closed-minded chatty-kathies (literally; outside comments on the gossipy back-and-forth snark that passes as political discussion on the site are not allowed) with a link, but the insight provided by their reaction to the news (and partisan spin on it) along with their take on the significance of Bender’s appointment for the upcoming legislative reapportionment and Congressional redistricting battles (the Pols consensus view, with which I agree, is that it bodes VERY well for their side) is illuminating.

Stay tuned for more on that subject…

Although this year’s campaign (and election) is over, the fight to reform Colorado’s out-of-control legal/judicial complex continues.  In the near term, Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for their violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will 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.  For both of those endeavors, we would appreciate 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 embarks on a “Bender” as narrowly-retained Justice Michael Bender is promoted to Chief Justice

In a development which bodes ill for the rule of law in Colorado (but which was eminently predictable – in fact, predicted by Clear The Bench Colorado Director Matt Arnold in numerous appearances and presentations) the Colorado Supreme Court earlier today announced the impending takeover of the Chief Justice’s position by Michael Bender, who must be viewed as the handpicked heir and ideological inheritor of outgoing Chief Justice Mary Mullarkey.

Justice Bender retained his office by the narrowest margin in Colorado history for an incumbent state supreme court justice (along with his colleague, and ideological ally, Alex Martinez) less than a week earlier; his retention in office was supported by an organization (IAALS) in which he sits on the board (potentially violating the judicial code of conduct) which is also under the cloud of a pending campaign finance law violation case, which may be heard as early as this Friday (12 November 2010).

As remarked in the Law Week article covering the announcement (“Bender Will Be New Colo. Supreme Court Chief Justice“),

Bender, like Mullarkey, is considered a member of the court’s liberal wing. He and fellow justices Alex Martinez and Nancy Rice earlier this month survived an effort by a political group, Clear The Bench Colorado, to oust them. The effort failed, but citizens in some rural counties voted to reject one or more of the three justices.

The article went on to describe some of Bender’s most controversial (and anti-constitutional) opinions, including two of the cases highlighted in Clear The Bench Colorado’s Evaluation of Judicial Performance for Justice Bender, the Barber v. Ritter “fees don’t count as taxes” case (which opened the door for the Colorado Car Tax – er, vehicle registration fee – increase) and the Lobato v. Colorado “judges get to decide school funding levels” case:

Bender is the author of some of the high court’s most controversial recent opinions. In November 2008, he wrote the opinion in the 4-3 Barber v. Ritter decision, which held that the transfer of special cash funds to the state general tax fund is not subject to voter approval under the state’s Taxpayer Bill of Rights, or TABOR. This has been criticized by conservatives as giving the state legislature free rein to circumvent TABOR by increasing fees instead of increasing taxes.

Bender also wrote the October 2009 opinion in Lobato v. Colorado, another 4-3 decision, which revived a lawsuit that alleges the state’s current funding scheme for public education violates the constitutional requirement that funding be “thorough and uniform.” If the lawsuit is successful, the state could be held liable for an additional $2.9 billion a year for public schools. Republican Attorney General John Suthers publicly came out against the decision, which he said “is not good news for the Colorado taxpayer.”

The article concluded with the most recent controversial decision penned by Bender, in the weeks leading up to the election (which Denver Post columnist Vincent Carroll described at the time as “yet another reason why two justices up for retention should be bounced from the bench“:

In a decision last month that gained national attention, Bender authored the opinion in Montes-Rodriguez v. Colorado, which held that a person’s use of another’s social security number is not criminal impersonation. The court split 4-3 on the decision.

Now-Chief Justice Bender is also highly likely to follow in outgoing Chief Justice Mullarkey’s partisan footsteps in determining the boundaries of Colorado’s legislative and Congressional districts (via his appointment powers on the state-level reapportionment commission, and by continuing along the path set in the notorious Salazar v. Davidson redistricting case upholding a judicial power grab to decide Congressional redistricting).

Unfortunately, Bender’s contempt for the Colorado Constitution and disregard for the rule of law is likely to continue to define the out-of-control Colorado Supreme Court for years to come; an already discredited court truly “going on a Bender” as we enter the second decade of the 21st Century.

Post-Election Media Review: Colorado Supreme Court, judicial retention elections, and Clear The Bench Colorado in the news

Suppose they gave an election, and nobody (well, only a few) knew?

(Shamelessly paraphrasing Bertoldt Brecht’s epic quote, “Suppose they gave a war, and nobody came?“)

Sadly, we’ve just seen the question answered: the status quo wins – especially when the status quo is aided and abetted by big money.

Curiously (or perhaps not), there has been more extensive coverage of the failure to the oust three incumbent Colorado Supreme Court justices on the ballot this year than coverage of the fact that they were up for a vote in the first place – much less coverage of their performance in office that gave rise to the call to remove them from the bench.

Although coverage of Colorado’s judicial retention elections picked up in recent weeks, for much of the last year awareness of the most consequential and far-reaching election on this year’s ballot was mostly restricted to the most active and observant portions of the electorate alone.  Colorado’s major regional media (especially network television, but also major “news” publications) perpetuated the managed lack of knowledge about the elections – and the issues at stake – in the general public.

A sample of news coverage of this year’s Colorado Supreme Court retention election results – which achieved the highest percentage of “NO” votes in state history – follows:

The Denver Post’s court/legal affairs beat reporter Felisa Cardona was likely the first to post on the results, late Tuesday/early Wednesday: (“Three Colorado Supreme Court justices appear to retain seats“) and scooped most other coverage with a relevant quote:

Throughout the campaign, Arnold was concerned that voters didn’t know enough about the justices or their legal opinions and said the state evaluation system doesn’t go far enough in judging performance.

“People are finally paying attention for the first time ever,” he said. Arnold believes the 60-40 split reflected the highest percentage of no votes for a Supreme Court justice.

The justices have declined to comment.

The George Soros funded “Justice At Stake Campaign” also closely followed results from various judicial retention elections around the nation, highlighting the ouster of three incumbent state supreme court justices in Iowa by a well-funded campaign while noting the triumph of status quo forces against judicial accountability efforts in Colorado and half a dozen other states.

An editorial in Wednesday’s Aurora Sentinel misrepresented the facts (and demonstrated remarkable historical ignorance) in trumpeting the narrowest retention in state history as a “rejection” of judicial accountability (“Voters were clear on this failed partisan attack“).  Although the writer is certainly entitled to an opinion (and in the Aurora Sentinel, the opinion is reliably left-wing), getting a few basic facts correct (such as characterizing CTBC as an “effort to oust members of the state’s supreme and appeals courts appointed by Democrats” when in fact CTBC did not recommend against ANY appeals court judges, and recommended a retain vote for both Democrat- and Republican-appointed appeals court judges, based on judicial performance and adherence to the law, not partisan affiliation) would have helped the writer’s credibility.  Oh, and misreporting the election results by about 10% to support an assertion that the final vote was “unaffected by the campaign” doesn’t help on the credibility front, either.

An interesting but as-yet unreported fact is the variance in the retention vote across various counties and regions in the state; as more complete results become available, look for a more detailed analysis.

Meanwhile, it’s been a long week (capping a long and, ultimately, disappointing year).

Although the campaign (and the election) is over, the fight to reform Colorado’s out-of-control legal/judicial complex continues.  In the near term, Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for their violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will 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.  For both of those endeavors, we would appreciate your continued support – via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free – nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

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