John Suthers

Colorado Supreme Court once again asked to weigh in on Colorado Recall elections as Governor files interrogatory

The fate of Colorado’s historic legislative Recall elections has once again been thrown into the courts, as Colorado Governor John Hickenlooper filed an interrogatory (request for judicial clarification) with the Colorado Supreme Court seeking a ruling on whether the requirements of the Colorado Constitution (Article XXI Section 3) for voting on the Recall question and possible successor candidates are consistent with the U.S. Constitution (specifically, the First and Fourteenth Amendments):

Colo. Const. art. XXI, § 3 requires an elector who wishes to vote for a successor candidate in a recall election to also cast a ballot on the recall issue.  Is this requirement consistent with the First and Fourteenth Amendments to the United States Constitution?

The question arises from the 2-part nature of the ballot question in Recall elections under Colorado’s Constitution.  Part 1 (the Recall question) is phrased as a Yes/No question on whether the incumbent subject to Recall should be removed from office; Part 2 (successor candidates) lists candidates who filed to succeed the incumbent IF (and only if) the Recall question succeeds (Note: the incumbent CANNOT be among the list of potential successors):

There shall be printed on the official ballot, as to every officer whose recall is to be voted on, the words, “Shall (name of person against whom the recall petition is filed) be recalled from the office of (title of the office)?” Following such question shall be the words, “Yes” and “No”, on separate lines, with a blank space at the right of each, in which the voter shall indicate, by marking a cross (X), his vote for or against such recall.

On such ballots, under each question, there shall also be printed the names of those persons who have been nominated as candidates to succeed the person sought to be recalled; but no vote cast shall be counted for any candidate for such office, unless the voter also voted for or against the recall of such person sought to be recalled from said office. The name of the person against whom the petition is filed shall not appear on the ballot as a candidate for the office. [Emphasis added] (Colorado Constitution Article XXI Section 3)

The request for interrogatory arises from the (apparently recently-discovered fact) that similar language in the California Constitution related to Recalls was ruled unconstitutional by the United States District Court for the Southern District of California in a 2003 case (Partnoy v. Shelley, Interrogatory Exhibit A) involving the Recall of California governor Gray Davis.

In that ruling, the (CA) court held that the similarly-worded requirement to count votes for successor candidates only when votes were also cast on the Recall question violated the First and Fourteenth Amendments to the U.S. Constitution.

 Analysis:

The Colorado Supreme Court ruling is unlikely to substantially alter the course or conduct of the Recall election, since the Interrogatory does not call into question the 2-part form of the Recall ballot itself, merely the issue of whether a vote in Part 1 (Recall) is a necessary precondition (“prior participation”) for counting any votes cast in Part 2 (successor candidates).

At most, an affirmative ruling would impact the accompanying instructions for voting the ballot, and would obviously modify the process for counting votes cast for successor candidates if Recall succeeds.

A Colorado Supreme Court decision to strike down Colorado’s constitutional language on Recall ballots is far from a sure thing, however; the case law precedent is weak (a single ruling by a single District Court judge in another state and federal court circuit – the Ninth – NOT a ruling by the Ninth Circuit Court of Appeals, as erroneously reported elsewhere).  Moreover, as correctly noted elsewhere, because the ruling occurred in a different federal judicial circuit (California is in the Ninth Circuit, Colorado is in the Tenth) it is NOT binding judicial precedent (although the Colorado Supreme Court will certainly take judicial notice of, and consider, the California Recall ruling in its deliberations).

In any case, having the Colorado Supreme Court issue a ruling on this potential issue BEFORE the elections take place is prudent, as any challenge on this basis filed AFTER the election would certainly result in a (costly) recount, and could possibly lead to “the invalidation of the entire election based on the distribution of faulty ballots” – a “hanging chaos” best avoided. (Interrogatory at p.4)

Quo Vadis?

The Colorado Supreme Court has set a deadline for all interested parties to file briefs by tomorrow morning, Tuesday, August 27. A ruling could occur as early as Tuesday afternoon, but at least by Friday August 30th (when the ballot is due to be certified) at the latest.


(Photo originally published in Denver Post media gallery)

Read more about legal challenges in the Colorado Recall elections:

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

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

Ultimately, though – it’s worth the effort.

Colorado Supreme Court overturns Lobato school funding lawsuit (as predicted by Clear The Bench Colorado)

The Colorado Supreme Court overturned Denver District Judge Sheila Rappaport and upheld the constitutionality of Colorado’s school funding system, as predicted by Clear The Bench Colorado Director Matt Arnold in an article published earlier this weekend:

Colorado Supreme Court to issue ruling on Lobato lawsuit (called the “SuperBowl of school funding litigation”) Tuesday

The Lobato lawsuit was originally filed in 2005; it was rejected at both the trial court level and in the Colorado Court of Appeals before narrowly (4-3) receiving new life in one of the Mullarkey Majority’s final (and most notorious) rulings in October 2009. The Mullarkey Majority overturned lower courts that had held (correctly) that school funding decisions are a matter of policy – not law – and are therefore the job of elected legislators – not appointed judges – to decide.

The 2009 Mullarkey Court ruling sent the case back to the trial court, and two years later (9 December 2011) Denver District Judge Sheila Rappaport issued a 183-page ruling finding for the plaintiffs – which was almost immediately appealed by the state (a bipartisan decision by Governor Hickenlooper and Attorney General Suthers) and joined in the appeal by the State Board of Education).

Although “reading the tea leaves” and predicting an outcome is always fraught with danger, it was clear from oral arguments in March that the justices who had participated in the 2009 Lobato ruling had not since shifted their opinion on the merits of the case.

However, what has changed in the interim (due in no small part to the efforts of Clear The Bench Colorado) is the composition of the state’s highest court – as two of the “unjust justices” who had previously voted to keep the Lobato lawsuit alive (Justice Alex Martinez and former Chief Justice Mary Mullarkey) have since resigned from the court (the former, after having received the lowest “retain” vote percentage of any incumbent Colorado Supreme Court justice in the state’s history – at 59% - and the latter quitting in advance of the retention vote rather than face the voters, in the face of a popular judicial accountability movement). Mullarkey’s replacement, Justice Monica Marquez, recused herself (appropriately) from this case, having taken part in earlier decisions while representing the state as an assistant attorney general, leaving the balance of power in deciding the case to recently appointed Justice Brian Boatright. Note that both Justice Boatright and Justice Marquez are subject to a retention vote in 2014.

Clear The Bench Colorado’s previously published prediction on Tuesday’s pending ruling:

Given that the justices who voted on the previous appearance of the Lobato case before the Colorado Supreme Court are unlikely to change their positions, the weight of the decision falls firmly on the shoulders of recently appointed Justice Brian Boatright – who will be facing the voters in the 2014 retention elections. Given the weighty constitutional issues at stake, and the potentially “devastating consequences” for the state (as well as confidence in the state’s judicial system), it is our view that Justice Boatright will do the right thing and join the previous dissenting minority in forming a new majority to overturn Judge Sheila Rappaport’s blatantly biased and political ruling.

My bet: 4-2 to overturn, upholding the Constitution.

Colorado Supreme Court to issue ruling on Lobato lawsuit (called the “SuperBowl of school funding litigation”) Tuesday

The Colorado Supreme Court will issue a ruling in the resurrected ‘Lobato v. Colorado‘ school funding lawsuit (previously termed the Super Bowl of school funding litigation) this Tuesday, 28 May 2013 (the court heard oral arguments in the case in early March this year).

At issue: the constitutionality of Colorado’s system of statewide school funding.
At stake: some $4B additional school funding annually (requested by the plaintiffs), along with an additional $17B in spending on capital construction – and, perhaps even more importantly, a looming constitutional crisis regarding separation of powers and the proper role of the courts in setting taxation and educational policy.

Colorado Supreme Court Justices, from left, Nathan Coats, Gregory Hobbs, Michael Bender, Nancy Rice, Allison Eid and Brian Boatright hear school-funding arguments in the Lobato vs. Colorado case filed in 2005. Attorneys from both sides were subjected to pointed questioning from the bench. (RJ Sangosti, The Denver Post)

The Lobato lawsuit was originally filed in 2005; it was rejected at both the trial court level and in the Colorado Court of Appeals before narrowly (4-3) receiving new life in one of the Mullarkey Majority’s final (and most notorious) rulings in October 2009. The Mullarkey Majority overturned lower courts that had held (correctly) that school funding decisions are a matter of policy – not law – and are therefore the job of elected legislators – not appointed judges – to decide.

The 2009 Mullarkey Court ruling sent the case back to the trial court, and two years later (9 December 2011) Denver District Judge Sheila Rappaport issued a 183-page ruling finding for the plaintiffs – which was almost immediately appealed by the state (a bipartisan decision by Governor Hickenlooper and Attorney General Suthers) and joined in the appeal by the State Board of Education).

Although “reading the tea leaves” and predicting an outcome is always fraught with danger, it was clear from oral arguments in March that the justices who had participated in the 2009 Lobato ruling had not since shifted their opinion on the merits of the case.

However, what has changed in the interim (due in no small part to the efforts of Clear The Bench Colorado) is the composition of the state’s highest court – as two of the “unjust justices” who had previously voted to keep the Lobato lawsuit alive (Justice Alex Martinez and former Chief Justice Mary Mullarkey) have since resigned from the court (the former, after having received the lowest “retain” vote percentage of any incumbent Colorado Supreme Court justice in the state’s history – at 59% – and the latter quitting in advance of the retention vote rather than face the voters, in the face of a popular judicial accountability movement).  Mullarkey’s replacement, Justice Monica Marquez, recused herself (appropriately) from this case, having taken part in earlier decisions while representing the state as an assistant attorney general, leaving the balance of power in deciding the case to recently appointed Justice Brian Boatright.  Note that both Justice Boatright and Justice Marquez are subject to a retention vote in 2014.

 At Stake?

As previously mentioned, not only are billions of dollars in additional school funding (estimated by plaintiffs at $4B, annually) at stake – which alone could have “devastating consequences” for the state, according to Governor Hickenlooper – it could precipitate a constitutional crisis.  A court mandate to raise taxes or require more spending would intrude upon the legislature’s authority to set education policy and violate the constitutionally-defined separation of powers between the branches of state government (an issue raised in the dissenting opinion in the 2009 ruling, as Clear The Bench Colorado noted at the time:

The Colorado Constitution directs the General Assembly to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state,”placing discretionary education questions in Colorado squarely and solely within the legislative ambit. (Lobato v. State of Colorado, dissenting opinion. Emphasis added).

A court ruling in favor of the plaintiffs “could alter the relationship between the people of Colorado and their government for decades to come” – since

One of the plaintiffs’ main arguments is that the Taxpayer Bill of Rights (TABOR) must give way to the education clause so that taxes could be raised and revenues increased to meet the needs of the education clause without a vote of the people.

A ruling by the Colorado Supreme Court asserting primacy of the education clause over TABOR and imposing higher taxes or spending could - as noted by both the attorney general’s office and Governor Hickenlooper – plunge the state into a constitutional crisis:

“Let’s say that the Supreme Court agrees with the district court – if that’s the case, then we’ve got the Constitution versus the Supreme Court.”

Listen to audio of Governor Hickenlooper’s statement on the Lobato appeal

Clear The Bench Colorado‘s prediction on Tuesday’s pending ruling:

Given that the justices who voted on the previous appearance of the Lobato case before the Colorado Supreme Court are unlikely to change their positions, the weight of the decision falls firmly on the shoulders of recently appointed Justice Brian Boatright – who will be facing the voters in the 2014 retention elections.  Given the weighty constitutional issues at stake, and the potentially “devastating consequences” for the state (as well as confidence in the state’s judicial system), it is our view that Justice Boatright will do the right thing and join the previous dissenting minority in forming a new majority to overturn Judge Sheila Rappaport’s blatantly biased and political ruling.

Our bet: 4-2 to overturn, upholding the Constitution. 

Bottom Line:

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 (i.e., a policy issue not to be decided by the courts).

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 has been a fiscal, legal, and political disaster for almost a decade.

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

The Attorney General’s office has also compiled a list of key pleadings and court decisions in the Lobato case.

Cases such as Lobato – particularly Rappaport’s biased ruling – 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.

State Education Board joins Governor Hickenlooper in bipartisan appeal of Denver judge’s ruling on Lobato school-funding lawsuit

Colorado’s State Board of Education voted 4-3 Tuesday morning to appeal Denver District Court Judge Sheila Rappaport’s ruling against the state in the Lobato school funding lawsuit.  Colorado Governor John Hickenlooper had officially announced last Wednesday* that the state would appeal Denver District Court Judge Sheila Rappaport’s ruling that the state’s education funding is not “thorough and uniform” as referenced in constitutional language (Colorado Constitution, Article IX, Section 2).  Rappaport’s 183-page ruling also paved the way for court-ordered tax increases, stating:

“It is also apparent that increased funding will be required.”

The state education board’s decision to appeal the Lobato ruling is significant because although the board’s vote to appeal Rappaport’s ruling was decided on a party-line basis (Education News Colorado)

(SBE’s four Republicans, Bob Schaffer, Marcia Neal, Paul Lundeen and Deb Scheffel, voted for appeal while Democrats Elaine Gantz Berman, Jane Goff and Angelika Schroader voted no)

the board joins Democrat Governor John Hickenlooper and Republican Attorney General John Suthers in a broad, bipartisan coalition of state elected officials seeking to overturn judicial usurpation of executive and legislative authority.

Governor Hickenlooper and Attorney General Suthers had earlier warned of “devastating” consequences for the state if the Lobato plaintiffs were successful in forcing additional school spending.

Although the lawsuit (and Rappaport’s ruling) is likely to be overturned (thanks to the departure of former Chief Justice Mullarkey and the more recent resignation of Justice Alex Martinez, 2 of the original 4 votes keeping the Lobato lawsuit alive in 2009 are now gone), appealing the case will cost Colorado taxpayers plenty:

[Mike] Saccone [spokesman for the attorney general's office] said the legislature has appropriated up to $3.5 million to defend the state against the suit.

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).

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 articles:

The Attorney General’s office has also compiled a full list of key pleadings and court decisions in the Lobato case.

Cases such as Lobato – particularly Rappaport’s biased ruling – 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.

* Governor Hickenlooper responded to a question at a 13 December 2011 town hall event about Lobato that he was leaning towards an appeal, since the court’s ruling “clearly violated TABOR” and Colorado voters had recently rejected a tax increase purportedly targeted for education funding (Prop. 103).

The Constitution says we can’t raise taxes without a vote of the people – the people just voted specifically on more revenues for education, and the people pretty clearly voted 2-to-1 that this was a bad idea. So how can the courts say that we should do it?

Governor Hickenlooper clearly disagreed with Rappaport’s ruling, and clearly expects to win on appeal, since the alternative would plunge the state into a constitutional crisis:

“Let’s say that the Supreme Court agrees with the district court – if that’s the case, then we’ve got the Constitution versus the Supreme Court.”

Listen to audio update on the Lobato appeal (playing this week on 560KLZ The Source)

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 Governor Hickenlooper announces state will appeal Denver judge’s ruling on Lobato school-funding lawsuit

Colorado Governor John Hickenlooper officially announced Wednesday* that the state would appeal Denver District Court Judge Sheila Rappaport’s ruling that the state’s education funding is not “thorough and uniform” as referenced in constitutional language (Colorado Constitution, Article IX, Section 2). Rappaport’s 183-page ruling also paved the way for court-ordered tax increases, stating:

“It is also apparent that increased funding will be required.”

Rappaport’s 183-page opus spends a mere 10 pages even purporting to address issues of law (the remainder is dedicated to a lengthy exposition of the judge’s views on the educational system and her personal opinions on the worthiness of various witnesses) and fails to address how to enforce funding increases in compliance with other constitutional provisions.  As the governor’s statement noted,

“The judge’s decision provided little practical guidance on how the state should fund a ‘thorough and uniform’ system of public education,” said Hickenlooper.  ”Moreover, while the judge focused on the inadequacy of state funding, she did not reconcile this issue with other very relevant provisions of the Constitution, including the Taxpayer’s Bill of Rights, the Gallagher Amendment and Amendment 23.”

A Denver Post article (“Gov. Hickenlooper to appeal Lobato education-funding decision to state Supreme Court; state board of education delays its own decision“) also noted the budgetary implications:

The lawsuit seeks no specific sum of money, but plaintiffs have pointed to studies estimating the state is underfunding education by as much as $4 billion.

The state now spends more than 40 percent, or $3.2 billion in the 2010-11 fiscal year that ended in June, of its almost $7 billion general fund on K-12 schools.

Coloradans in November by a two-to-one margin shot down a $3 billion tax increase measure for schools.

Governor Hickenlooper and Attorney General Suthers had earlier warned of “devastating” consequences for the state if the Lobato plaintiffs were successful in forcing additional school spending.

Although the lawsuit (and Rappaport’s ruling) is likely to be overturned (thanks to the departure of former Chief Justice Mullarkey and the more recent resignation of Justice Alex Martinez, 2 of the original 4 votes keeping the Lobato lawsuit alive in 2009 are now gone), appealing the case will cost Colorado taxpayers plenty:

[Mike] Saccone [spokesman for the attorney general's office] said the legislature has appropriated up to $3.5 million to defend the state against the suit.

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).

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 articles:

The Attorney General’s office has also compiled a full list of key pleadings and court decisions in the Lobato case.

Cases such as Lobato – particularly Rappaport’s biased ruling – 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.

* Governor Hickenlooper responded to a question at a 13 December 2011 town hall event about Lobato that he was leaning towards an appeal, since the court’s ruling “clearly violated TABOR” and Colorado voters had recently rejected a tax increase purportedly targeted for education funding (Prop. 103)

The Constitution says we can’t raise taxes without a vote of the people – the people just voted specifically on more revenues for education, and the people pretty clearly voted 2-to-1 that this was a bad idea. So how can the courts say that we should do it?

Governor Hickenlooper clearly disagreed with Rappaport’s ruling, and clearly expects to win on appeal, since the alternative would plunge the state into a constitutional crisis:

“Let’s say that the Supreme Court agrees with the district court – if that’s the case, then we’ve got the Constitution versus the Supreme Court.”

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

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

Ultimately, though – it’s worth the effort.

Colorado Supreme Court Nominating Commission fills vacancy, set to review applications to replace resigning Justice Martinez

Although three more vacancies will open on Colorado’s Supreme Court Nominating Commission (along with 42 other vacancies on judicial district nominating commissions across the state) when the terms of several current commissioners expire, the appointment last week of Ira J. Paulin to fill the non-attorney slot from the 4th Congressional District fills the final vacancy before the commission begins reviewing applications (beginning October 3rd) to replace outgoing Justice Alex Martinez, who announced at the end of August that he is resigning to take the job of Denver Manager of Safety.

Another vacancy (the attorney slot from the 7th Congressional District) was recently filled (by joint action of Governor John Hickenlooper, Attorney General John Suthers, and Chief Justice Michael Bender) by Deputy District Attorney Charles Tingle of Jefferson County.

(H/T to Law Week Colorado for covering the news of these recent appointments and profiling the current members of the Commission (”Meet Those Who Will Help Select Colorado’s Next Justice“)

The resignation of Justice Alex Martinez, who was retained in office last November with 59.2% of the vote (the lowest percentage of “retain” votes received by an incumbent supreme court justice in state history) will provide Governor Hickenlooper with his first opportunity to select a state supreme court justice, once the commission pares down the list of applicants to three “finalists” from which he’ll make the final pick.  Governor Hickenlooper’s Colorado Supreme Court appointment will not only provide some insight into the governor’s views on judicial philosophy and the rule of law, but also provide a preview of the likely direction of the state’s highest court.

Will Governor Hickenlooper reinforce the stated desire of new Chief Justice Michael Bender to “de-politicize” the court (responding to criticism of the court’s performance by Clear The Bench Colorado and other observers) or will he succumb to the temptation to place another partisan, activist judge in the mold of disgraced former Chief Justice Mary Mullarkey on the bench?

Only time (and the announcement of the Nominating Commission’s selection of three “finalists”) will tell.

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 & 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.

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.

Looming education-funding fiscal and budgetary train wreck aided and abetted by Colorado Supreme Court

Days before a landmark school-funding lawsuit goes to trial, Gov. John Hickenlooper and Attorney General John Suthers on Thursday took a pre-emptive bipartisan stand against the legal challenge, arguing that it could cost the state billions of dollars if it loses in court. (Denver Post, “Colorado governor, attorney general stand against education-funding challenge“)

When Colorado’s Democrat Governor and Republican Attorney General agree that “education funding should be left to the legislature and voters” and not decided by the courts, it might be an indication of the return of some level of fiscal sanity to state government (or a sign of the impending apocalypse).

Unfortunately, the restoration of some level of sanity to Colorado’s judicial branch (which recently earned the state the title of “judicial hellhole“) may take a bit longer.

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.

Current Chief Justice Michael Bender (together with disgraced then-Chief Justice Mary Mullarkey, joined by justices Alex Martinez and Greg Hobbs) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, not to be decided by the courts).

Unfortunately – thanks to the Colorado Supreme Court’s majority injecting their personal sympathies ahead of the law – this lawsuit has already cost the state tens of thousands, and if upheld will likely lead to court-ordered increases in funding (and, inevitably, taxation) – a violation of separation of powers, and yet another unconstitutional tax increase facilitated by the Colorado Supreme Court.

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.

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.

Continued partisan spin and misrepresentations of Attorney General Suthers statement on Colorado Supreme Court justices

Political enemies of Attorney General John Suthers are STILL attempting to use his principled (albeit uncharacteristically bold) statement that he would vote “NO” on retaining 3 of the 4 Colorado Supreme Court justices on the ballot (Justices Michael Bender, Alex Martinez, & Chief Justice Mary Mullarkey) as a political club with which to rhetorically beat him – continuing to propagate knowingly false statements accusing him of partisan bias in his pronouncement.

State Senator Morgan Carroll – appearing at a nonpartisan gathering of politically-interested people at Liberty On The Rocks (Red Rocks) – stuck by her earlier accusation against Attorney General John Suthers of “partisan bias” and her call for his impeachment when challenged to defend her statement.

While Senator Carroll is certainly entitled to her own opinion, she does NOT get to pick her own facts – her attack on the Attorney General intentionally misrepresented his statement in order to score political points.  In other words – as previously noted in this space –  she lied.

Senator Morgan Carroll – a Democrat, and therefore presumably a political enemy of Republican Attorney General Suthers – asserted in a blog post entitled “The Role of the Attorney General” that the AG stated

he would not vote for retention for any of the Colorado Supreme Court Justices who were originally appointed by a Democrat.

The proper measure for retention of a judge is their judicial performance – not political party.  The Judicial Performance Commission makes these reports available on non-partisan criteria pertaining the experience of lawyers, parties and public with the Judges.

For the states highest law enforcement officer to call for a partisan purge and partisan stacking of the bench raises serious questions.

We need to protect the importance of this office to ensure that it does not get subverted to a partisan agenda on either side…

Carroll’s polemic intentionally misrepresents both the AG’s statement and the rationale for his position, in a blatant attempt at partisan spin.  Suthers did NOT state that he “would not vote for retention for any of the Colorado Supreme Court Justices who were originally appointed by a Democrat.”  In fact, he stated that he would vote “NO” on 3 of the 4, and “yes” on the other (ALL 4 are Democrat appointments) on the basis of his perception of the constitutionality of their rulingsNOT their partisan affiliation.  Accusations of a “partisan purge and partisan stacking of the bench” are knowingly false statements – perhaps the AG has grounds for a libel suit against Sen. Carroll?

We can assert with confidence that Carroll’s statement was knowingly false not only because she cited as the source for her attack the Post article  (AG Suthers may not back 3 on state Supreme Court) which, although itself containing some spin, accurately reported the AG’s statement.

We can also assert with confidence that Carroll knows the facts because we told her so – commenting on her post (which comment she refused to publish – OK, her site, her rules – CTBC also moderates comments, but allows both positive and negative comments to be published) and now in person.

Our response to Senator Carroll’s possibly libelous, certainly disingenuous statement:

Senator Carroll: Clear The Bench Colorado agrees with your statement that “The proper measure for retention of a judge is their judicial performance – not political party.”  Unfortunately, the Judicial Performance Commission reviews – despite the generally good intentions of the participants in the process – have NOT provided an effective, substantive evaluation of the performance of our courts, particularly at the highest levels.

The Denver Post article has done readers a disservice by casting the retention elections in partisan terms. This is absolutely NOT a partisan issue – we can (and apparently do) agree on that.  Rather,it is a matter of the justices upholding the Constitution and the rule of law (important to ALL parties).

Also, it is inaccurate to assert that the Attorney General stated that “he would not vote for retention for any of the Colorado Supreme Court Justices who were originally appointed by a Democrat.”  In fact, he stated that he would vote “NO” on 3 out of the 4 justices appointed by Governor Romer (and would vote yes on Justice Nancy Rice). The Denver Post article said as much.

We need to protect the importance of our highest court to ensure that is does not get subverted to a partisan agenda on either side. Unfortunately, at least 3 out of the 4 justices (CTBC would argue that it’s 4 for 4) have consistently displayed in their rulings that they endorse such a role for the judiciary.  This behavior should not be tolerated from our justices – vote “NO” on their retention in November 2010. Clear The Bench, Colorado!

Clear The Bench Colorado exists not to attack our institutions, but to defend them - including the “Missouri Plan” that mixes judicial appointments with retention elections, in a well-intentioned attempt to minimize politicization of the judiciary.  Unfortunately, the politicization of the Colorado judiciary has long since been perpetrated by the unconstitutional rulings and pursuit of personal agendas by the four (now, three) ’unjust justices’ of the Mullarkey Majority (Michael Bender, Alex Martinez, and Nancy Rice – Chief Justice Mary Mullarkey quit rather than be held accountable) who are facing the voters in this November’s retention elections.

Exercise YOUR right to vote “NO” on the 4 ‘unjust justices’ of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your homes and business from being seized through eminent domain abuse, and your right to enjoy the benefits of the rule of law, instead of suffering rule by an oligarchy of activist, agenda-driven “justices.”  Please help support Clear The Bench Colorado with your own comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices in November 2010!

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