judical activism

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

Published December 27, 2011 | By CTBC Director

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

Published December 22, 2011 | By CTBC Director

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 Reapportionment Commission meets to discuss revisions to state legislative maps rejected by Colorado Supreme Court

Published November 17, 2011 | By CTBC Director

The Colorado Reapportionment Commission (charged with drawing our state legislative districts) will hold a series of meetings to discuss revisions to the state legislative district maps submitted by the commission, but later rejected by the Colorado Supreme Court, following eleven challenges filed against the maps by county governments and other interested parties.

The commission meets first on Friday, 18 November in executive session (which means that it will not be broadcast or open to the public) for the purpose of consulting with private counsel about the resubmission of the state redistricting plan.

The next meeting – for the purpose of public discussion (by commission members) of revisions to the maps, will be held on Monday, 28 November 2011 beginning at 11:00 AM at the state Capitol.

The final meeting – for the purpose of voting on revisions to the state legislative district maps to be re-submitted to the Colorado Supreme Court for review – will be held beginning at 1:00 PM on Wednesday, 30 November 2011.

From the Colorado Reapportionment Commission’s information release:

No public testimony will be heard at either of these meetings. However,comments may be submitted by email, letter, or phone call. Please use the following contact information for the commission to submit comments.

Mailing address: 1313 Sherman Street, Suite 122, Denver, CO 80203
Email: reapp2011@state.co.us
Fax: 303-866-3945
Phone: 303-866-3950

The commission will apply the instructions handed down by the Colorado Supreme Court in their ruling (“In re Reapportionment of the Colorado General Assembly”) to comply with Colorado Constitutional requirements (see below) guiding the composition of state legislative district boundaries, in order to generate a set of constitutionally-compliant maps by the court’s deadline of 6 December 2011.

UPDATE: Audio recording of the Colorado Supreme Court hearing on state legislative reapportionment  (9 November 2011)

Colorado Constitutional Requirements:

  • Equal population (with no more than 5% deviation;  ideal district size – Senate: 143, 691; House: 77,372) (Colorado Constitution Article V, Section 46)
  • Counties cannot be split unless necessary to achieve equal population between districts

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts.  Article V, Section 47(2)

  • Municipalities may not be split unless necessary to achieve equal population between districts (Article V, Section 47(2))
  • Districts must be as compact and contiguous as possible, and consist of whole precincts

(1) Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible. Each district shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap. (Article V, Section 47(1))

  • Finally, communities of interest – ethnic, economic, cultural, demographic, trade area and geographic – are to be preserved whenever possible

(3) Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible. (Article V, Section 47(3))

Note that per a previous Colorado Supreme Court ruling (In re: Reapportionment of the Colorado General Assembly, 2002), these criteria are listed in order of priority – i.e. there’s a hierarchy of constitutional criteria which must be satisfied in order for legislative districts to pass constitutional review.

Additional references:

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 rejects state legislative district maps, remands to Colorado Reapportionment Commission for corrections

Published November 16, 2011 | By CTBC Director

The Colorado Supreme Court rejected the state legislative district maps submitted by the Colorado Reapportionment Commission, remanding the maps back to the commission with instructions for addressing constitutional deficiencies.

The Colorado Supreme Court’s ruling, “ In re Reapportionment of the Colorado General Assembly,” rejected arguments putting “competitiveness” ahead of constitutional criteria for defining the boundaries of Colorado’s state legislative districts:

The supreme court holds that the finalized Reapportionment Plan is not sufficiently attentive to county boundaries to meet the requirements of article V, section 47(2), and the Colorado Reapportionment Commission has not made an adequate showing that a less drastic alternative could not have satisfied the hierarchy of constitutional criteria set forth in In re Reapportionment of the Colo. Gen. Assembly, 45 P.3d 1237 (Colo. 2002). The supreme court returns the plan to the Commission for further consideration, modification, and resubmission by 5:00 p.m. on December 6, 2011.

The court’s decision followed challenges to the commission’s maps submitted by eleven Colorado counties and other interested parties, based primarily on violations of the constitutional requirement to maintain county integrity to the extent possible.

The commission’s maps split counties more than necessary to maintain numerical parity between districts, and failed to apportion a number of “whole” state legislative districts within counties that qualified based on population.

The court also rejected the notion, advanced by Democrat plaintiffs, that “competitiveness” – a concept lacking constitutional or statutory definition -could trump constitutional criteria in drawing state legislative boundaries.

Several plaintiffs also cited the fact that the commission’s maps submitted to the Colorado Supreme Court for constitutional review were introduced at the 11th hour by the commission’s lone unaffiliated member, Chairman Mario Carrera, in substitution for other maps which had been scrutinized in public hearings over the course of the summer (one round of hearings in June, followed by another round of public hearings on maps incorporating public comment and testimony throughout the month of August).  The maps voted out of commission and submitted to the court were not subjected to public comment or testimony, and in many cases contradicted the views expressed by individual citizens and county governments.

Since the maps failed to meet the criteria set forth in the Colorado Constitution, particularly the requirement to maintain county integrity where possible, the eleven challenges filed by county governments around the state were inevitable.

Clear The Bench Colorado had the most complete and accurate coverage of last week’s hearing by the court, and even predicted the outcome (down to the 4-2 margin of decision).

Colorado Constitutional Requirements:

  • Equal population (with no more than 5% deviation;  ideal district size – Senate: 143, 691; House: 77,372) (Colorado Constitution Article V, Section 46)
  • Counties cannot be split unless necessary to achieve equal population between districts

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts.  Article V, Section 47(2)

  • Municipalities may not be split unless necessary to achieve equal population between districts (Article V, Section 47(2))
  • Districts must be as compact and contiguous as possible, and consist of whole precincts

(1) Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible. Each district shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap. (Article V, Section 47(1))

  • Finally, communities of interest – ethnic, economic, cultural, demographic, trade area and geographic – are to be preserved whenever possible

(3) Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible. (Article V, Section 47(3))

Note that per a previous Colorado Supreme Court ruling (In re: Reapportionment of the Colorado General Assembly), these criteria are listed in order of priority – i.e. there’s a hierarchy of constitutional criteria which must be satisfied in order for legislative districts to pass constitutional review.

Additional references:

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 hears oral arguments in challenges to Colorado Reapportionment Commission legislative district maps

Published November 9, 2011 | By CTBC Director

The Colorado Supreme Court heard arguments in the case of eleven challenges to the state legislative district maps that were approved by the Colorado Reapportionment Commission and submitted for review in early October this morning in the Old Supreme Court Chambers at the Colorado Capitol.

Many of the challenges (from across the state) arose in response to the eleventh-hour introduction of an entirely new set of maps by the commission’s sole unaffiliated member (and chair) Mario Carrera - the maps that were, in the end, approved – after earlier maps had been subjected to multiple rounds of public comment and scrutiny (beginning with meetings in Denver from 31 May to 25 July, followed by meetings around the state throughout August, and a final commission meeting on 12 September.

Although the specific examples varied somewhat, attorneys for the challengers (a variety of county government officials, from around the state) consistently cited the failure of the Commission maps to meet the constitutional criteria, particularly the requirement to maintain county integrity and allocate “whole” districts within counties Colorado Constitution Article V, Section 47(2), except as necessary to meet the equal population requirements of Colorado Constitution Article V, Section 46.

Some examples:

  • Only 43 single-county districts were formed (out of 47 possible); of the 11 most populous counties, 4 lacked full representation “whole districts.”
  • Colorado Springs, qualifying for 5.38 House seats, was instead split into 8 districts (the total number of districts for which El Paso County qualified as a whole), “fracturing” the city’s representation while failing to minimize municipal splits.
  • Weld County qualified for 3.27 House districts, but was assigned only 2 “whole” districts
  • Arapahoe County qualified for 3.98 senate districts but failed to receive 4 whole districts (while in 2002, the court rejected maps failing to assign 4 “whole” districts to Arapahoe when the county qualified for 3.87)
  • Jefferson County, qualifying for 7 House districts, was assigned only 6 “whole” districts with the remaining 66,000 population placed into 2 ‘split’ districts

Attorneys for the various parties also challenged the “ripple effects” of attempting to preserve a “community of interest” for Aurora and creating “competitive” districts forcing further county splits.  The concept of “competitiveness” was frequently criticized, as an “extra finger on the scale” that is “not defined in law or the Constitution” and therefore an “illegitimate non-constitutional criterion put ahead of [actual] constitutional criteria” (particularly Article V, Section 47(2), county integrity).

An additional objection raised against the commission’s maps was the last-minute nature of the introduction and approval of the final maps without any opportunity for public input and/or comment (the commission’s chair, Mario Carrera, introduced “his” maps on Wednesday September 14th before the commission vote on Monday September 19th) citing “competitiveness” as a primary objective.

The Commission’s attorney argued that although county integrity was a high priority, “other factors may be taken into consideration” at the “discretion” of the commission.  He argued that the commission’s “discretion” is sufficient to “allow a break with the mathematical requirement to grant “whole” districts to counties.  In particular, he stressed “implications” of the Voting Rights Act (VRA) as a U.S. constitutional requirement that “supercedes” Colorado state constitutional requirements, even absent a judicial finding or documented evidence that VRA violations had occurred.  (“Supposition” or “good-faith” inference of potential VRA violations was argued to be sufficient).

Several questions asked by the Colorado Supreme Court justices may have been the most interesting indicators of how the court might rule in the case (either accepting the maps as submitted, or remanding the maps back to the commission with instructions for remedying deficiencies).

  • Chief Justice Bender asked only one question of note (Justice Rice asked none at all) – regarding the last-minute introduction & approval of the maps , without public comment.
    • (Answer: “no process mandated to require public testimony after maps adopted.”)
  • Justice Eid followed up on that point – twice noting that the maps received “no public input” and the public was provided “no opportunity for comment”
    • (Answer: “no process called for,” “opportunity to comment throughout total process”)
  • Justice Hobbs asked several questions about where ethnic “community of interest” criteria (Article V, Section 47(3)) fall in order of precedence in relation to other state and federal constitutional criteria (along with a number of short “definition”-type questions)
  • Justice Coats asked several questions about the conditions under which some criteria might be set aside or supercede others – such as
    • Is “where it’s necessary” the only basis to break county integrity?
    • How do we construe the Constitution to allow the commission “discretion” to break county integrity?
    • Is it necessary to have a Voting Rights Act violation in order to split counties?
    • Is a violation of U.S. law necessary to trump the Colorado constitutional requirement for county integrity?  (Noting: “this seems to be fundamental”)
    • Is the commission able to not follow the Colorado Constitution if it ‘suspects’ VRA violations?
    • Is there anything in prior decisions (esp. 1992) showing justification for splitting counties that did not have to be split?

Perhaps most interesting, from a court-watcher’s perspective (and because of the lack of prior rulings on which to rely for context) were the questions posed by Justice Marquez, the Colorado Supreme Court’s newest justice (the most-recently appointed justice, Brian Boatright, has not yet fully joined the court, and was absent from today’s hearings).  Justice Marquez asked several astute and penetrating questions, indicating on several occasions that she was “troubled” by the commission’s arguments:

  • “What constitutes an adequate explanation” for violating county integrity?
  • Where in that list [of constitutional criteria] does “competitiveness” play a role?
    • (Answer: Court is entitled to take into account other factors, including “competitiveness” – not arguing that it trumps other criteria)
      • (Marquez): “Competitiveness” can’t trump “less drastic” alternative
  • Do other criteria trump county integrity “if Voting Rights Acts concerns are active?”
    • (Answer: Yes – understanding that this isn’t part of constitutional hierarchy – but the commission membership being “diverse” afforded more “insight”)
  • Questioning the argument that Voting Rights Act concerns take priority (based on 1992 case precedent), Marquez noted that in 1992, those issues were “hotly contested” and that the commission was attempting to resolve disputed issues – but in 2011, “no such disputed issues” exist outside San Luis valley
    • Marquez noted “the only way the commission’s argument stands is if VRA issues exist in order to trump Article V, Section 47(2)” – without such violations, no legal grounds exist to trump that constitutional requirement”

Quo Vadis?

Although “reading the tea leaves” in such a complex and highly political case is fraught with danger, based on the arguments presented (both orally today and in previous written statements by both sides), questions posed by the Colorado Supreme Court justices, and in light of relevant case law precedent and Colorado Constitutional requirements (see below), Clear The Bench Colorado will hazard a guess on the outcome:

  • CTBC predicts that the Colorado Supreme Court will not accept the Colorado Reapportionment Commission’s state legislative district maps as submitted, and will remand the maps back to the commission with instructions to remedy deficiencies (and will do so before Thanksgiving), most likely on a 4-2 vote.

Any takers?

Colorado Constitutional Requirements:

  • Equal population (with no more than 5% deviation;  ideal district size – Senate: 143, 691; House: 77,372) (Colorado Constitution Article V, Section 46)
  • Counties cannot be split unless necessary to achieve equal population between districts

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts.  Article V, Section 47(2)

  • Municipalities may not be split unless necessary to achieve equal population between districts (Article V, Section 47(2))
  • Districts must be as compact and contiguous as possible, and consist of whole precincts

(1) Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible. Each district shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap. (Article V, Section 47(1))

  • Finally, communities of interest – ethnic, economic, cultural, demographic, trade area and geographic – are to be preserved whenever possible

(3) Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible. (Article V, Section 47(3))

Note that per a previous Colorado Supreme Court ruling (In re: Reapportionment of the Colorado General Assembly), these criteria are listed in order of priority – i.e. there’s a hierarchy of constitutional criteria which must be satisfied in order for legislative districts to pass constitutional review.

Additional references:

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 approves 40% tax increase

Published November 4, 2011 | By CTBC Director

Although Colorado voters decisively repudiated a recent attempt to raise taxes at the ballot box this week (the “Proposition 103″ tax increase initiative, which at least did seek “voter approval in advance” as required by the Colorado Constitution, Article X, Section 20 – the ‘Taxpayer’s Bill of Rights’), on the day before votes were tallied, the Colorado Supreme Court approved what may have been the largest (percentage) tax increase in the history of Colorado – increasing a severance tax (on energy production) by over 40%.

Sadly, this latest ruling only continues a pattern of judicial assault on the rights of Colorado taxpayers that is both politically motivated (the court’s majority has frequently expressed antipathy towards the Colorado Constitution’s Article X, Section 20 – the ‘Taxpayer’s Bill of Rights’ – despite their oath to support and uphold the entire Constitution, not just the parts they like) and entirely predictable.  (Indeed, Clear The Bench Colorado forecast the court’s decision over a year ago in this article):
Colorado Supreme Court prepares additional assault on taxpayer rights, hearing another stealth tax increase case (31 August 2010)

The Colorado Supreme Court’s ‘Mullarkey Majority’ has now gone 0-16 in upholding TABOR, a “perfect season” establishing them as the 2008 Detroit Lions of jurisprudence
(Mullarkey’s replacement, Monica Marquez, recused herself from the decision due to her role as a former Deputy Attorney General arguing the case for violating taxpayer’s rights before the Court of Appeals)

Some of the most prominent examples of the court’s “perfect” record:

Following the pattern of earlier anti-TABOR decisions, the majority opinion tortures statutory language to extract a tenuous justification for a constitutional end-run in favor of tax increases, overturning a Colorado Court of Appeals ruling that was a model of clarity and conciseness in legal language:
so simple, even a caveman could understand it:

We hold that TABOR precludes the challenged coal severance tax adjustments. Our holding is based on a simple syllogism:

(1) TABOR prohibits increasing tax rates without voter approval. Colo. Const. art. X, § 20(4)(a); Nicholl v. E-470 Public Highway Auth., 896 P.2d 859, 867 (Colo. 1995).

(2) Applying the statutory formula increased the coal severance tax rate (initially from $0.54 to $0.76 per ton) without voter approval.

(3) Therefore, TABOR was violated.

So how did the Colorado Supreme Court get around this clear, concise language?

The ruling majority declared that the tax increase was merely an “adjustment” to the “tax rate formula” that the statutory language “required” the Department of Revenue to increase – a “non-discretionary” mechanism (despite the undisputed fact that the Department of Revenue did exercise discretion – and complied with the Constitution by not raising the rate – for 15 years previously).  The majority likewise ignored the well-established legal principle that constitutional language trumps statutory language, as Justice Coats pointed out in his dissent:

Not only is TABOR a constitutional provision to which legislative acts are subservient, rather than merely another statute itself, but its intent to limit the legislative taxing power by subjecting it directly to popular approval, see Bickel v. City of Boulder,885 P.2d 215, 226 (Colo. 1994), and to ‘s upersede” all conflicting state statutes could not be more clear, see Colo. Const. Art X, sec. 20 (1) (“All provisions are self-executing and severable and supersede conflicting state constitutional, state statutory, charter, or other state or local provisions.”). Starting November 4, 1992, the state is expressly required to have voter approval in advance for any tax rate increase that does not fall within a TABOR exception.

Colo. Const. Art X, sec. 20(4)(a). The language of TABOR simply does not admit of any construction permitting future tax rate increases without the constitutionally required voter approval, whether or not they were mandated by statutes enacted before the constitutional amendment, and this court has never suggested otherwise.

Despite the clearly-expressed intent of the voters, both in decisively repudiating a tax increase at the polls (in 2011) and in establishing constraints of the power of government to arbitrarily and without asking raise taxes (or “increase revenue” by any “tax policy changes”) by adopting a constitutional amendment (the “Taxpayers Bill of Rights” in 1992), the Colorado Supreme Court continues its unbroken streak of raising taxes by judicial decree, usurping the power and authority both of the legislature and of “We The People” – the ultimate sovereigns.

As Justice Coats made clear in his dissent:

It simply strains credulity beyond the breaking point to assert, as does the majority, that raising the tax on every ton of extracted coal from fifty-four to seventy-six cents is not a tax rate increase.

A tax increase by any other name (be it “elimination of existing exemption“, “fee“, or now “adjustment“) still smells as foul.

A violation of your right to have a say before having your money taken from you is just as bad (arguably, much worse) coming from the courts as coming from the executive or legislative branches  - your wallet can’t tell the difference.

Know your rights – as a Citizen – and defend them.

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 to hear oral arguments in state legislative district reapportionment case on 9 November

Published November 2, 2011 | By CTBC Director

The Colorado Supreme Court has set a date (9 November 2011) to hear oral arguments in the case of eleven challenges to the constitutionality (filed predominantly by affected county governments) of the state legislative district maps filed by the Colorado Reapportionment Commission in early October for constitutional review by the Colorado Supreme Court (yes, these challenges… “go to eleven”).

(Hearings begin at 9AM in the Old Supreme Court courtroom, Colorado Capitol, 200 E. Colfax Avenue, Second Floor, Denver CO 80203)

UPDATE: Live audio streaming of the oral arguments also available online

Many of the challenges (from across the state) arose in response to the eleventh-hour introduction of an entirely new set of maps by the commission’s sole unaffiliated member (and chair) Mario Carrera – the maps that were, in the end, approved – after earlier maps had been subjected to multiple rounds of public comment and scrutiny (beginning with meetings in Denver from 31 May to 25 July, followed by meetings around the state throughout August, and a final commission meeting on 12 September.

The Colorado Latino Forum – the sole group that had filed a brief in support of the approved maps, prior to the challenges – also filed a reply brief in response to challenges of the maps.

The Colorado Reapportionment Commission legal counsel filed a somewhat lengthier reply brief in response to the eleven challenges as well.

Ironically, the Colorado Supreme Court must now review the approved maps – and challenges to the approved maps – which are largely the sole creation of Colorado Reapportionment Commission Chair Mario Carrera, appointed to the commission by Colorado Supreme Court Chief Justice Michael Bender.  The court will essentially be reviewing the work product of its own appointee – a potential conflict of interest that in other circumstances might warrant recusal, and which highlights the problematic involvement of the courts in deciding issues of policy and politics.

Additional references:

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.

Governor Hickenlooper selects JeffCo Judge Brian Boatright as next Colorado Supreme Court justice

Published October 27, 2011 | By CTBC Director

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

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

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

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

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

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

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

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

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

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

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

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

Ultimately, though – it’s worth the effort.

Eleven Challenges to Colorado Reapportionment Commission state legislative district maps filed with Colorado Supreme Court

Published October 26, 2011 | By CTBC Director

“These go to eleven…”

Unsurprisingly, the state legislative district maps filed by the Colorado Reapportionment Commission earlier this month for review of constitutionality by the Colorado Supreme Court have drawn a number of challenges based on constitutional shortcomings – as of press time, the challenges “go to eleven.”

Many of the challenges (from across the state) arose in response to the eleventh-hour introduction of an entirely new set of maps by the commission’s sole unaffiliated member (and chair) Mario Carrera - the maps that were, in the end, approved – after earlier maps had been subjected to multiple rounds of public comment and scrutiny (beginning with meetings in Denver from 31 May to 25 July, followed by meetings around the state throughout August, and a final commission meeting on 12 September.

Ironically, the Colorado Supreme Court must now review the approved maps – and challenges to the approved maps – which are largely the sole creation of Colorado Reapportionment Commission Chair Mario Carrera, appointed to the commission by Colorado Supreme Court Chief Justice Michael Bender.  The court will essentially be reviewing the work product of its own appointee – a potential conflict of interest that in other circumstances might warrant recusal, and which highlights the problematic involvement of the courts in deciding issues of policy and politics.

The eleven challenges to the commission’s maps were filed from around the state:

In contrast, only a single group (the Colorado Latino Forum, a special interest group which may have been involved with creating the chairman’s maps) filed a short brief in support of the final product, immediately after the commission filed the maps with the Colorado Supreme Court for review).

Justice Takes a Holiday?

In any event, the Colorado Supreme Court will have its hands full in the coming month (or more – the statutory deadline for completing review of legislative district maps is 14 December) reviewing not only the state legislative district maps and the eleven (and possibly counting) challenges to the maps for compliance with federal and state constitutional requirements, but also dealing with the inevitable legal challenges to the eventual outcome of the Congressional Redistricting trial in Denver District Court (set to end with closing arguments on Hallowe’en morning, 31 October).  Other court business must (by law) take a back seat to the resolution of these political issues.  Further complicating matters, both cases will ultimately be decided by a court including a new member to be appointed to the bench later this week (replacing outgoing Justice Alex Martinez, resigning to take a “city job” as Denver Manager of Safety effective 31 October).  Talk about a baptism of fire…

Additional references:

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

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

Ultimately, though – it’s worth the effort.

Colorado Supreme Court Justice Nominees Profiled

Published October 24, 2011 | By CTBC Director

The three nominees selected a week ago by the Colorado Supreme Court Nominating Commission (Judge Brian Boatright, attorneys Frederick Martinez and Patrick O’Rourke) were each interviewed Friday by Governor John Hickenlooper, and earlier today (Monday) by Lt. Governor Joe Garcia.  Governor Hickenlooper, who has the final say on which of the three will be appointed as the next Colorado Supreme Court justice (replacing resigning  Justice Alex Martinez, resigning to take a “city job” as Denver Manager of Safety) is expected to announce his pick later in the week (no later than Friday October 28th, or the pick will fall to Colorado Supreme Court Chief Justice Michael Bender, according to the provisions of Colorado Constitution, Article VI (Judiciary), Section 20).

If the governor shall fail to make the appointment (or all of the appointments in case of multiple vacancies) from such list within fifteen days from the day it is submitted to him, the appointment (or the remaining appointments in case of multiple vacancies) shall be made by the chief justice of the supreme court from the same list within the next fifteen days.

The selection of three finalists by the Colorado Supreme Court Nominating Commission after reviewing applications and interviewing candidates over the last couple of weeks represents the sole “check” or “balance” to the power of the governor to select and appoint judges in our state (unlike the system for appointing federal judges, there is no “advise & consent” function exercised by the state legislature).

(Click here to know more about how individuals are selected & appointed to judicial office in Colorado)

Governor Hickenlooper, to his credit, followed the precedent recently established by former Governor Bill Ritter in accepting public input on the 3 nominees to become the next Colorado Supreme Court justice (soliciting E-mails to judicial.appointments@state.co.us with your comments, concerns, or suggestions).

Also following recently established precedent (established for the first time earlier this year), the Denver Post published a profile of the nominees for this important public office (Sunday edition 23 October, “Hickenlooper to choose new Supreme Court justice“).

Until recently, the most information available to the public would have been the names of the finalists – a situation lacking in the transparency and accountability the public has every right to expect in relation to holding public office.  Clear The Bench Colorado has been among the leaders calling for reform in the judicial selection and nomination process (”No More Secrecy in Colorado Supreme Court judicial hiring“), as noted in last year’s Denver Post article on replacing Mullarkey:

These are people who are auditioning to become government employees occupying some of the highest offices in the state about which there is no knowledge or public input or transparency or accountability,” Arnold said. “I would certainly urge the legislature to take a look at this…

For only the second time in state history, additional information on the nominees (including the public portion of their applications) is available to the public for review.  Law Week Colorado has again made the applications available for view (”State Releases Applications Of Finalists For Colorado’s High Court“).

Unfortunately, although the Denver Post profile of the nominees provides a (brief) overview of the respective professional accomplishments of each of the nominees, and some anecdotal insights into their personalities, it does little to illuminate the qualifications each brings to the state’s highest judicial office.  Although one of these three individuals will be elevated into a position of “supreme” power to interpret and apply the law, the public is provided no insight into their judicial philosophy or decision-making process.  Particularly when only one of the nominees has ever served as a judge at any level, do they understand and will they exemplify the qualities that make a good judge?  Will they exercise judicial power fairly and impartially, and with appropriate restraint?

“An independent, fair and impartial judiciary is indispensable to our system of justice … the judiciary plays a central role in preserving the principles of justice and the rule of law.”

The governor’s decision – which of these three nominees he ultimately appoints to the Supreme Court – will have deep and lasting implications for the state, perhaps greater than any other decision he makes.  May he choose wisely…

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

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

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

Ultimately, though – it’s worth the effort.

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