judicial accountability
Colorado Ethics Watch finally pays Clear The Bench Colorado for frivolous, groundless, and vexatious complaint
The wheels of justice grind slooooooooowly…
After almost three years (and after exhaustion of all appeals) since first winning the judgment against “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) for CEW’s “frivolous, groundless, and vexatious” campaign finance complaint against Clear The Bench Colorado (back in July 2010), as spelled out by court order in December 2010, CEW has finally paid what they have owed us for years.
Clear The Bench Colorado‘s victory against CEW, winning an award of attorney’s fees, is only the second time that CEW (with a near decade-long history of conducting harassing legal attacks) has been forced to pay. It is rare (indeed, almost unheard of – though not totally unprecedented) for attorney’s fees to be awarded to the defendant in this type of case, as Face The State had pointed out in an earlier article (“Judicial-reform group lashes back at ‘frivolous, groundless’ complaint“):
Attorneys fees are awarded sparingly by Colorado judges, largely because those requesting the sanction must prove opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.
The award indicates that the judge not only thought that CEW’s case (or “complaint”) was bad – he thought it was SO bad that he took the unusual step of slapping CEW with the bill (which, as noted, runs into the ‘tens of thousands’).
The ’Order Awarding Attorney Fees and Costs‘ confirmed the complete lack of legal merit in CEW’s original complaint against Clear The Bench Colorado:
Because CEW’s claim was not supported by the undisputed evidence or by the plain language of the law, the ALJ found CEW’s complaint substantially groundless and frivolous. The ALJ therefore granted CTBC’s request for attorney fees and costs…
Confirmation of the award of legal fees and costs - and more importantly, confirmation of the “frivolous, groundless, and vexatious” nature of CEW’s original complaint – comes as both victory and vindication for Clear The Bench Colorado. As noted previously by CTBC and knowledgeable observers of the legal and political scenes, the award of legal fees to the defendant is an extreme rarity.
CEW’s attacks against Clear The Bench Colorado fit an ongoing pattern of politically motivated “ethics” complaints designed to distract, disorient, and sling mud in the (vain) hope that something might stick. Ultimately, they don’t care if they win or lose the case (their lopsided loss-win ratio bears this out), since their priorities are (1) smear, (2) frame the media debate and gain attention, (3) divert resources and attention, (4) intimidate, and (5) maybe (if they get lucky) occasionally win a case. As many publications noted at the time, CEW’s attack was just another cheap political stunt. Even the Secretary of State’s office called CEW Director Toro’s statements “disingenuous” (which is a polite way of saying, ‘lying through your teeth’).
Groups like CEW – with the massive amounts of funding they receive from their parent organization (Washington, DC based CREW) and from local leftist funders Tim Gill, Pat Stryker, Jared Polis, and Rutt Bridges right here in Colorado, can continue to draw upon deep reservoirs of cash in support of attacks and legal harassment of their ideological foes – abusing the legal system as a political weapon.
Unless and until meaningful sanctions against such abuse of the legal system as a political weapon are implemented and consistently enforced, citizens engaging in civic activity (along with political campaigns at all levels) can expect to continue to be subject to these kinds of harassing attacks.
Clear The Bench Colorado‘s victory against the unethical ‘Colorado Ethics Watch’ – holding them accountable for their abuse of the legal system – is one small step in the direction of restoring some measure of sanity (and accountability) to the courts.
Once in a while – the Underdog wins.
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.
Hickenlooper appoints Navarro to Colorado Court of Appeals
The second time was the charm for Anthony Navarro, who was just appointed to the Colorado Court of Appeals by Governor John Hickenlooper to replace outgoing Judge Robert Russel, a former contender for Colorado Supreme Court justice (Navarro had previously applied for consideration to join the state’s frontline appellate court in 2008, with the endorsement of the Colorado Hispanic Bar Association).
Governor Hickenlooper selected Navarro from a pool of 3 nominees (Robert T. Fishman of Denver, Russell H. Granger of Georgetown, and Anthony Navarro of Denver) picked by the State Judicial Nominating Commission last month.
Mr. Navarro (effective 3 November, Judge Navarro) will serve as one of 22 judges on the Colorado Court of Appeals (who rule on cases in 3-judge panels). His first term (considered a “provisional” term under the Colorado Constitution, Article VI Section 20) “expires” in 2014, when he will appear on the ballot for a “retention” vote:
A justice or judge appointed under the provisions of this section shall hold office for a provisional term of two years and then until the second Tuesday in January following the next general election.
Citizen participation in the judicial review and retention election process (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – hold judicial office, instead of more politicians in black robes.
This is particularly important in reviewing the performance of statewide appellate court judges – many of whom all too frequently have exercised unrestrained power, in violation of constitutional limits on their authority, in order to advance a personal and/or political agenda.
Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our judges are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.
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.
Clear The Bench Colorado helps Colorado voters to “know your judges” with substantive evaluations of judicial performance
As Coloradoans prepare to cast their ballots in the 2012 elections, despite being bombarded with political ads, MOST voters have little to no information on up to a third of the people asking for their vote: the 3rd Branch of government in our state, the judges.
Clear The Bench Colorado has researched and evaluated the performance of the appellate court (statewide) judges appearing on the 2012 ballot (1 Supreme Court justice, 6 Court of Appeals judges), collected inputs on district & county judges from around the state, and published this information in an easy-to-read “scorecard” format (with linked case references) as an informational resource for Colorado voters.
View Clear The Bench Colorado’s Evaluations of Judicial Performance 2012 for substantive evaluations of judicial performance – to better “know your judges” before casting your vote this year.
UPDATE:
listen to Clear The Bench Colorado‘s “Know Your Judges: The Good, The Bad, and The Ugly” radio spot
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 Judicial Nominating Commission names finalists for Colorado Court of Appeals vacancy
The Colorado Supreme Court Judicial Nominating Commission has named the three finalists to fill a pending vacancy on the Colorado Court of Appeals, due to the resignation of Judge Robert Russel (effective 3 Nov 2012), as reported by Clear The Bench Colorado last month.
The three finalists (from whom Governor John Hickenlooper will select one) are:
Robert T. Fishman of Denver, Russell H. Granger of Georgetown, and Anthony Navarro of Denver.
- Fishman is an appeals attorney at Ridley McGreevy & Winocur in Denver; his experience includes having clerked for (former) Colorado Supreme Court Chief Justice Luis D. Rovira
- Granger is a currently district judge in the 5th Judicial District (formerly a Clear Creek County judge), and was most recently reviewed (and retained) in 2008.
- Navarro currently works in the office of general counsel at the Social Security Administration; he previously applied for the Colorado Court of Appeals in 2008 (endorsed at the time by the Colorado Hispanic Bar Association).
The governor has 15 days from Wednesday to select one of the three. Comments regarding any of the nominees may be sent via e-mail to the governor at judicial.appointments@state.co.us
Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to judicial office, instead of more politicians in black robes.
This is particularly important in selecting the next statewide appellate court judges – many of whom all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.
Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our judges are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.
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.
Defending the Constitution – Why 9/11/2001 still matters today (11 years later)
“It is Tuesday morning, the 11th of September… and you will not forget this date.”
(TV reporter, unknown, reporting from NYC as events unfolded on the morning of 9/11…)
11 years ago today, the most horrific attack ever carried out on American soil claimed the lives of thousands of Americans, making clear that “there’ll be no shelter here – front lines are everywhere.”
Looking back, it occurred to me that I’ve since spent most anniversaries of that fateful Tuesday morning – forever burned into the American psyche as, simply, 9/11 – on duty away from home.
2002: Afghanistan; 2003: Fort Benning, Georgia; 2005: Operation Katrina, New Orleans (hurricane disaster relief/recovery operations); 2006: Fort Bragg, North Carolina; 2009: Camp Williams, Utah; and last year, 2011: Fort Indiantown Gap, Pennsylvania.
My experience in this regard is hardly unique – indeed, I’ve spent less time on duty away from home than many others who proudly wear the uniform – a mere token of service willingly rendered in defense of our nation, and the Constitution we are sworn to support and defend.
Sadly, many of the men and women in uniform serving on that day and since – military, NYC Police & Port Authority, and FDNY – were not “invited” to the 10th anniversary of 9/11 at Ground Zero ’due to “lack of room”. Funny – they weren’t “invited” on that fateful day in 2001 either – they just “showed up” and did what needed to be done.
However, America isn’t about the politicians, officials, and various muckety-mucks who were pontificating at that “official” event and others today.
America is about the brave people – often bearing only the proud title of “Citizen” – who just “show up” to do what needs doing.
Defending the Constitution – Why 9/11 still matters today (reprise)
Clear The Bench Colorado joins millions of Americans across the country in somber remembrance of the 9/11 attacks on our nation.
What does this have to do with holding our Colorado Supreme Court justices accountable to the rule of law and the Colorado Constitution? Quite a lot, actually…
As a proud veteran of the U.S. military (including service in the Colorado Army National Guard), I take my oath of enlistment – “I will support and defend the Constitution of the United States and the State of Colorado [emphasis added] against all enemies, foreign and domestic” - seriously; very seriously.
Many of our elected (and unelected) officials seem to have a much more cavalier attitude towards their own oath of office.
Colorado Supreme Court justices also swear a similar oath on taking office, which begins:
“I will support the Constitution of the United States and the Constitution of the State of Colorado.”
Note that the judicial oath of office does not state “I will support only those parts of the Constitution that I like or with which I personally agree or empathize.”
Yet the Mullarkey Court has consistently ruled against the Colorado Constitution’s Article X, Section 20 (TABOR) in every case it has heard – despite the clear intent and letter of the law that “[i]ts preferred interpretation shall reasonably restrain most the growth of government.”
The Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, Chief Justice Mary Mullarkey) are oathbreakers – and dishonor the service of the men and women of the United States military and law enforcement agencies who put their lives on the line to support and defend our Constitution. They have proven themselves unworthy of the high office they occupy.
Another important lesson of 9/11 is that individuals matter – and fighting to defend your rights, and your lives, is the only way to preserve your rights (and your life, in extremis) when under attack. The true heroes of that day were not only the firefighters but also the ordinary citizens who acted to save lives – and the brave passengers on Flight 93 who fought back against the hijackers on the 4th plane and died not as victims, but as American heroes.
We can no longer be under any illusion – as the passengers on Flight 93 discovered – that our rights and lives are NOT under attack; we are threatened by enemies both foreign and domestic. The nature of the threat (and appropriate response) is different, but the need to take action, to defend your rights – remains the same.
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 judges seeking retention in office 2012
This week, the Colorado Office of Judicial Performance Evaluation (COJPE) released the names of those Colorado judges seeking to be retained in office (subject to voter approval) in 2012.
This year, the number of those judges seeking voter approval for another term (10, 8, 6, or 4 years depending on the level of court) is down slightly from last year. Colorado judges seeking retention in 2012 (appearing on the November general election ballot with a “Yes” or “No” vote option) are:
- 1 Supreme Court Justice
- 6 Court of Appeals judges
- 83 District & County judges
(View the comprehensive list of Colorado judges seeking to be retained in office in 2012)
The Colorado Office of Judicial Performance Evaluation (COJPE) simultaneously published the “judicial performance evaluations” (based predominantly on surveys of attorneys and other parties appearing before each judge). As usual, almost all of the judges “evaluated” received a “Retain” recommendation from the respective review commission (the single exception being a county judge in El Paso County,
4th Judicial District – who was given a “Do Not Retain” recommendation based on “Demeanor”).
Unfortunately, the survey methodology employed by the Colorado Office of Judicial Performance Evaluation and the resultant 5-paragraph “Judicial Performance Review” narratives fail to provide substantive information on which to base an informed decision on “should they stay or should they go.” (See: Evaluating the Performance of Justices, Denver Post Guest Commentary by former State Judicial Performance Commissioner William M. Banta, for a critique of JPE relevance and effectiveness)
For example, in the case of the single judge receiving a “Do Not Retain” recommendation this year, based predominantly on attorney responses to surveys: was the judge’s courtroom “demeanor” truly disrespectful and lacking in neutrality, or is she a “no-nonsense judge who follows the letter of the law… [who acts to] incarcerate dangerous drunk drivers for the protection of the public”? Are the “surveys” reliable, or the result of manipulation by disgruntled attorneys? Unfortunately, it’s difficult to tell from the data presented in the “judicial performance review” narratives.
Our View:
Colorado voters deserve better – a broader, more substantive evaluation based on “relevant, substantive and vigorous information” about how (and whether) the judge upholds the rule of law.
Most importantly, Colorado voters should receive information from a variety of truly independent sources. The quasi-official, government-appointed Commissions on Judicial Performance Evaluation are inherently prone to political bias, conflicts of interest (attorneys practicing before the very judges they “evaluate”) and groupthink. Most dangerously, in publishing and distributing (at taxpayer expense) a “recommendation” on judicial retention, these commissions represent the government telling the public how to vote on another branch of government – completely undermining the independent accountability mechanism at the heart of Colorado’s “merit selection & retention” system for the courts.
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 seeks applicants for pending Colorado Court of Appeals vacancy
The Colorado Supreme Court Nominating Commission is soliciting applicants to fill a pending vacancy on the Colorado Court of Appeals, due to the resignation of Judge Robert Russel (effective 3 Nov 2012).
Any qualified elector of the state of Colorado who is not a convicted felon and has been licensed to practice law in the state for 5 years may apply to become a judge (Colorado Constitution, Article VI Section 8, Qualifications of Judges).
From the vacancy announcement, as reported by Law Week Colorado:
Application forms are available from the office of the ex-officio chair of the nominating commission, Chief Justice Michael L. Bender, 101 W. Colfax, Suite 800, Denver, CO 80202; and the office of the district administrator of any of the 22 judicial districts. Applications also are available at www.courts.state.co.us/Careers/Judge.cfm.
One original, signed application form, along with an identical copy of the application stored as a PDF file must be received by the ex-officio chair by 4 p.m. Tuesday, Aug. 28. Late applications will not be considered.
Any person wishing to suggest a candidate to fill the vacancy may do so by letter to be submitted to any member of the nominating commission, with a copy to the ex-officio chair, no later than Aug. 21.
Applications will be kept confidential, except that the nominating commission shall disclose the names, work addresses, and work telephone numbers of the three nominees submitted to the governor.
The Colorado Supreme Court Nominating Commission will convene 24-25 September 2012 to review all applications, interview selected applicants, then vote to select 3 nominees who will be submitted to the governor for appointment to the Court of Appeals. Once the 3 nominees have been selected, a public review and comment period is typically observed. (Current example: Montrose County Court vacancy)
Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to judicial office, instead of more politicians in black robes.
This is particularly important in selecting the next statewide appellate court judges – many of whom all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.
Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our judges are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.
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 position open for 3rd Congressional District (attorneys only need apply)
The Colorado Judicial Branch, “[o]n behalf of Gov. John Hickenlooper, Attorney General John Suthers and Chief Justice Michael L. Bender,” recently announced
opening of the application period for a vacancy on the Supreme Court Nominating Commission.
Applications for the volunteer position, which must be filled by an attorney residing in the 3rd Congressional District, will be accepted until Aug. 3, 2012. There is no political party affiliation requirement for this vacancy.
Under Colorado’s “merit selection and retention” system of filling judicial offices, the judicial nominating commissions – at either the district level, or statewide – represent one of the few opportunities for Colorado citizens to have a say in the composition of our courts. In essence, the commissions are the means by which Citizens can become involved in choosing our judges.
At the district level (Colorado is divided into 22 judicial districts),
Each judicial district nominating commission consists of seven citizens residing in that judicial district. No more than four members can be from the same political party, and there must be at least one voting member from each county in the district. [Source: Colorado State Courts, Judicial Nominating Commissions]
At the statewide level (including both the Colorado Supreme Court and Court of Appeals),
The Supreme Court Nominating Commission recommends candidates to serve as judges for the Supreme Court and the Court of Appeals. The chief justice of the Supreme Court chairs the commission and is a non-voting member. This commission includes one citizen admitted to practice law in Colorado and one citizen not admitted to practice law residing in each of the state’s seven congressional districts, and one additional citizen not admitted to practice law in Colorado. [Total of 15 commissioners] (Source: Judicial Nominating Commissions)
From the press release:
Article VI, Section 24 of the Colorado Constitution requires that for any nominating commission, “no more than one-half of the commission members plus one, exclusive of the Supreme Court justice serving as ex officio chair, shall be members of the same political party.” The Constitution also requires that at least one commissioner reside in each of the counties of the district. Applicants must reside in the judicial district – or, for the Supreme Court Nominating Commission, the Congressional District – to which they are applying for appointment.
Application forms may be found on the Colorado Judicial Department web site at http://www.courts.state.co.us/Courts/Supreme_Court/Nominating.cfm. Completed application forms may be mailed to Cheryl Stevens, Colorado Supreme Court, 101 W. Colfax, Suite 800, Denver, CO 80202. They also may be sent via email to cheryl.stevens@judicial.state.co.us.
Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to 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.
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:
- “Judicial Overreach” (Pueblo Chieftain editorial, 14 December 2011)
- “Judge Sets Constitution Aside in School Finance Ruling” (Education Policy Center, 12 December 2011)
- “Victory for Lobato Plaintiffs” (Education News Colorado, 9 December 2011)
- “Lobato case primer” (Education News Colorado, 11 August 2011)
- “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
- “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)
- “Lobato education-funding budget-buster aided & abetted by Colorado Supreme Court” (8 August 2011)
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 upholds Denver District Court Judge Robert Hyatt’s ruling on Colorado Congressional Redistricting
In a surprisingly rapid decision following last Thursday’s oral arguments in challenges to a Democrat-drawn Congressional Redistricting map previously approved by Denver District Court Judge Robert Hyatt, the Colorado Supreme Court announced in a court order issued Monday morning (5 December) that it affirmed Hyatt’s ruling in the lower court and the ‘Moreno South Map’ establishes the boundaries of Colorado’s Congressional districts for the next decade.
(Link for Colorado Supreme Court order affirming the Denver court’s ruling and Moreno Map)
(New Democrat redistricting map – statewide)
(UPDATE: the Denver Post has created a “find your congressional district” application)
The Colorado Supreme Court’s ruling, although disappointing to Colorado Republicans (particularly the residents of Douglas and Larimer counties) hardly comes as a surprise – Colorado Democrats carefully prepared the conditions for their victory on Congressional Redistricting as part of a long-standing strategy of sending the decision to the courts, where they have traditionally enjoyed a friendly venue.
Even before reprising the 2000 legislative session playbook by blocking passage of (constitutionally required) Congressional Redistricting legislation in the Colorado state senate, the more strategically-savvy Democrat leadership set the conditions for their eventual court victory by enabling judicial consideration of “non-neutral” political factors (and removing guidelines establishing a hierarchy of neutral criteria) in the “Mary-mandering” legislation passed at the close of the 2010 legislative session – allowing Denver District Court Judge Robert Hyatt room for extensive discretion (i.e. exercising his own personal preferences) in ruling for the ‘Moreno Map’:
The General Assembly amended this statute in 2010 to repeal the statutory prohibition, adopted in 2004, against the use of political data such as party registration and so-called “political performance” data. (Ruling at 43)
Despite having copious advance notice of Democrat intentions in regard to Congressional Redistricting strategy, Republican “leadership” was caught flat-footed and “steamrollered” in the courts:
Republicans may not even be able to decry the Colorado Supreme Court’s ruling as purely partisan (contrasting with the situation in the 2003 Salazar v. Davidson congressional redistricting case) or an example of unmitigated judicial activism, since the statutory changes (enabling consideration of purely political factors by the courts) and selective use of testimony may have provided sufficient legal “cover” for the court’s ruling majority to affirm the lower court’s ruling – aside from that pesky constitutional provision (Article V, Section 44) mandating Congressional Redistricting as a legislative, not judicial, responsibility in the first place.
Final judgment on the legal merits of the Colorado Supreme Court’s decision in this case (along with knowing the vote count) will have to wait, pending release and review of the actual written ruling (expected in the coming weeks).
In any event, the boundaries of Colorado’s Congressional districts are now set for the next decade – there is no further appeal from the Colorado Supreme Court’s ruling in this case.
Irrespective of one’s preferences on the congressional district maps, the negative repercussions of manipulating the redistricting process to impose an outcome via the courts are severely damaging to public confidence in our institutions of state government – both legislative and judicial. Legislative abdication of constitutionally-mandated responsibilities reinforces public perception of politicians as feckless and irresponsible (not without reason).
Perhaps more importantly, the intentional politicization of the judiciary – increasingly seen as acting as just another category of politician, distinguished from the other branches only by a unique mode of dress (black robes) – is corrosive to our institutions, and undermines the sanctity of the rule of law.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.