Clear the Bench Colorado » judicial accountability

Published by CTBC Director on 02 Nov 2011

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

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.

Commentary, PPC

Published by CTBC Director on 31 Oct 2011

In Review: Colorado Congressional Redistricting Trial

The legal battle to re-draw the boundaries of Colorado’s Congressional Districts - sent to the courts for the fourth consecutive decade at the end of the legislative session in May 2011 after the legislature (specifically the state senate) failed to do its job by passing redistricting legislation as required by the Colorado Constitution - concluded trial proceedings in Denver District Court today (Monday, Halloween Day) with closing statements and the introduction of new and revised Congressional District maps.

democrat-statewide-20111031-crop

(New Democrat redistricting map - statewide)

Sitting through the hearings and witness statements is admittedly dry stuff, with topics ranging from pine beetles and educational funding (which Democrat attorney Mark Grueskin claimed is what ties Boulder and Larimer counties together into a common “community of interest”) to water and agriculture issues (which Democrat attorney Mark Grueskin claimed were issues tying Douglas County and the Eastern Plains together into a common “community of interest”), and transportation funding (which witnesses from Douglas County - including County Commissioner Jill Repella and county lobbyist Ken Butler - advanced as evidence of common ties between Douglas and the other Denver Metro counties).

Witnesses at the Congressional Redistricting trial included a “Who’s Who” of the Colorado political scene - including over half of Colorado’s Congressional Delegation (CD2 Congressman Jared Polis, CD3 Congressman Scott Tipton, CD6 Representative Mike Coffman, and CD7 Representative Ed Perlmutter) along with other political luminaries such as CU Regent Michael Carrigan (D-Denver/CD1) (just re-elected in 2010) and former director of the Department of Higher Education Rico Munn (for the Democrats) and former Deputy Treasurer Dick Murphy and former state representative candidate (and current Denver County GOP Chair) Danny Stroud (for the Republicans).

As might be expected with so much at stake, the attorneys participating in the trial were also a “Who’s Who” of the state’s legal profession: Democrats were represented by a team headed by perennial political litigator Mark Grueskin (astute observers of Clear The Bench Colorado (or of Colorado politics in general) may recall Mark Grueskin from his role in establishing a shadowy and well-funded special-interest group to counteract the Clear The Bench Colorado judicial accountability efforts during the 2010 judicial retention elections); Republicans were represented by a team led by former Colorado Solicitor General Richard Westfall (who also contested the constitutionality of the Colorado “Mill Levy Tax Freeze” case, first successfully in Denver District Court in May 2008 before being overturned in a highly political decision by the Colorado Supreme Court in March 2009); the Colorado Latino Forum, which introduced a separate set of maps, was represented by Gina Rodriguez; and the City of Aurora, which intervened in the case in order to carve out an Aurora-centric district (keeping the city, although split between multiple counties, in a single congressional district) was represented by former state senator and CD7 candidate Mike Feeley (apparently taking a break from his participation in the “Fenster’s Folly” anti-TABOR lawsuit pursued against the state of Colorado in federal court).  A wag reportedly opined that the sum of billable hours over the several weeks of the Congressional Redistricting trial could feed, clothe, and bathe the “Occupy Denver” crowd for a year…

Media coverage of the trial ranged from the trivial (Denver Post Lynn Bartels tweeting about former Congressman Bob Beauprez having the zipper down on his jeans) to the mildly humorous (comments on repeatedly spilled water and “a huge, industrial-size roll of paper towels” along with Democrat attorney Mark Grueskin’s characterization of the GOP “Minimum Disruption” map as a “light-jazz band”) to the occasionally informative (a background piece on presiding Denver District Court Judge Robert Hyatt, “Colorado redistricting judge unafraid to issue controverial decisions“).

An interesting sideline to the overall Colorado Congressional Redistricting narrative was provided by the shifting fortunes of state senator Brandon Shaffer, running for Congress in CD4 in 2012, as district maps submitted by his own party first drew him out of, then later back within, the boundaries of the district (prompting him to submit his own map) - as chronicled in a series of article in the Colorado Peak Politics political website:

(NOTE: although residency within the district is not a requirement to run for Congress, it is certainly a political disadvantage to live outside the district one is seeking to represent)

The main themes of the Congressional Redistricting trial, however, were attempts by all parties to argue the constitutionality of the various map proposals.  All parties acknowledged the federal and state constitutional requirements in general terms, but sought to emphasize different aspects in making their case.  All sides attempted to define “communities of interest” via witness testimony (or refute the commonality of interests claimed by the other side during cross-examination).

For example, Democrat witnesses Michael Carrigan and Rico Munn advocated for combining Boulder and Larimer counties as a single “community of interest” based on the presence of Colorado’s two largest institutions of higher education in each (CU in Boulder, CSU in Fort Collins).  GOP witness Dick Murphy countered that the cultural differences between the two schools - to say nothing of the two counties - diverged sharply between “liberal” CU/Boulder and more traditionally rural/conservative CSU/Fort Collins.  (Ed.: Plus, how could a combined district deal with a candidate unable to take a stand on football matchups between the two universities, or alienating half the district?)  GOP attorney Westfall also pointed out that both CU and CSU have multiple campuses around the state, and that multiple institutions of higher education exist around the state in different congressional districts, eliminating any unique claim to a “Higher Ed” community of interest centered around Boulder and Larimer counties.

Bottom Line?

The GOP argument (as well as the title of the map proposal) centered around the theme that voters should suffer “minimal disruption” to their current congressional representation.  GOP attorneys emphasized the “clear legal guidelines” and precedents (including the rightly-maligned 2003 Salazar v. Davidson case when the Mullarkey Court usurped the legislative role in redistricting - a responsibility willingly abdicated by the legislature this year) binding upon the court.

The City of Aurora sought to be contained whole within a single congressional district (despite being split between counties, which enjoy a higher constitutional precedence for remaining intact than municipalities).  Interestingly, both the modified Democrat and Republican maps appear to have accepted this premise.

The Colorado Latino Forum maps were roundly panned by all sides - the original maps (which paired Scott Tipton and Ed Perlmutter in a single district, ranging from Cortez to Lakewood) were criticized both by Republicans:

“When I saw that I thought, ‘They can’t possibly be serious,’ ” said state Sen. Greg Brophy, R-Wray. “We had public testimony earlier this year against this kind of proposal.”

as well as by Democrats (even after modifications to the original maps):

“When a map is driven by the issue of race, whatever the race, it becomes suspect.” (Democrat attorney Mark Grueskin)

(The Latino Forum’s lawyer returned the favor, “ripping” both Republican and Democrat maps)

The Democrat argument sought to create or define new “communities of interest” but most prominently promoted the principle of “competitiveness” as a basis for determining district boundaries.  However, it must be noted that reliance on ”competitiveness” is a political argument, NOT a legal or constitutional argument (since there is neither a clear definition, nor constitutional requirement, for “competitiveness”) - even notwithstanding the “Mary-mandering” legislation passed at the close of the 2010 legislative session in what has been confirmed by events as a preparatory move in the plan to send the question of redistricting to the courts all along (instead of being resolved in the legislature, as mandated by the Colorado Constitution, Article V Section 44,

Text of Section 44:Representatives in Congress.
The general assembly shall divide the state into as many congressional districts as there are representatives in congress apportioned to the state by the congress of United States for the election of one representative to congress for each district. When a new apportionment shall be made by congress, the general assembly shall divide the state into congressional districts accordingly.

Judge Hyatt, who has a reputation as being hardworking, independent-minded and well-versed in the law, is not expected to take long to reach a decision - and may have already reached some conclusions on the merits of the arguments advanced during trial, as indicated by an aside uttered casually during the second week of the trial, stating (and this may be more a paraphrase than a precise quote)
“Is there anything being presented here as testimony that is likely to influence my decision?”

In any event, all parties have indicated that whatever the outcome, the case is almost certain to be appealed to - and ultimately decided by - the Colorado Supreme Court.

Additional references:

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

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work 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.

Commentary, PPC

Published by CTBC Director on 27 Oct 2011

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

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.

Commentary, PPC

Published by CTBC Director on 26 Oct 2011

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

“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.

Commentary, PPC

Published by CTBC Director on 24 Oct 2011

Colorado Supreme Court Justice Nominees Profiled

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.

Commentary, PPC

Published by CTBC Director on 14 Oct 2011

Finalists for Colorado Supreme Court vacancy announced: Boatright, Martinez, or O’Rourke will be next Colorado ‘Supreme’

Announced with much less fanfare Thursday (a short article buried in the Denver Post, “Finalists named for Colorado Supreme Court” and in the Denver Business Journal online, “3 finalists named for Colorado Supreme Court seat“) than last year’s front-page article announcing the finalists to replace outgoing Chief Justice Mary Mullarkey (”Three finalists emerge for Colorado Supreme Court vacancy“), the names and applications of the finalists to replace outgoing Justice Alex Martinez, resigning to take a “city job” as Denver Manager of Safety, were released to the public.

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)

Under the Colorado Constitution, Article VI (Judiciary), Section 20, the governor has 15 days from the announcement of the commission’s nominees (so, until 28 October) to pick one of the three, or the Chief Justice (Michael Bender) makes the pick:

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.

Last year, to his credit, former Governor Bill Ritter solicited public input on the three nominees to become the next Colorado Supreme Court justice (soliciting E-mails to judicial.appointments@state.co.us with your comments, concerns, or suggestions); it remains to be seen if Governor Hickenlooper will seek the same level of public participation before he (on 21 October) and Lt. Governor Garcia (on 24 October) interviews the nominees in person.

So who are the three nominees?

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“).

In alphabetical order, the nominees for the next Colorado Supreme Court justice are:

  • Brian Boatright, a Jefferson County District Court Judge, from Arvada
    (Work address/phone:  100 Jefferson County Parkway, Golden CO 80031/(303) 271-6433)
  • Frederick Martinez, an attorney with Hall & Evans, from Castle Pines
    (Work address/phone: 1125 17th Street, Suite 600, Denver CO 80202/(303) 628-3302)
  • Patrick O’Rourke, chief litigation attorney for the University of Colorado, from Highlands Ranch
    (Work address/phone: 1800 Grant Street, Suite 800, Denver CO 80203/(303) 860-5691)

Interestingly, only one of the nominees (Judge Boatright) has any experience in judicial office, as a District Court judge in Jefferson County (1st Judicial District).  (In comparison, the nominees to replace outgoing Chief Justice Mary Mullarkey, who quit rather than be held accountable by Colorado voters, included an Appeals Court judge, a District Court judge, and an assistant Attorney General).  Attorney Frederick Martinez has worked on the Office of Attorney Regulation Council (the arm of the Colorado Supreme Court responsible for reviewing ethics complaints and charges against attorneys) and as a public defender, in addition to general litigation.  Attorney Patrick O’Rourke has been the chief litigator for the University of Colorado, and has argued several high-profile cases such as Ward Churchill’s “1st Amendment retaliation” claims against CU (in district court) and the recent CU Gun Ban case (before the Colorado Supreme Court).  Former litigators would of course have to recuse themselves from any case (including appeals of those cases) they have represented.

Our view: Citizen participation in the judicial nominating process (at both the district and state levels) is essential to ensuring that good judges - who understand that their role is to fairly & impartially uphold and apply the law - are elevated to hold judicial office, instead of more politicians in black robes.

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

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

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

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

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

Ultimately, though - it’s worth the effort.

Commentary, PPC

Published by CTBC Director on 05 Oct 2011

Colorado Reapportionment Commission files final plan for state legislative districts for review by Colorado Supreme Court

The Colorado Reapportionment Commission (charged with drawing our state legislative districts) submitted the final (approved) set of state legislative district maps for Colorado, having completed two rounds of hearing public testimony (meetings in Denver from 31 May to 25 July, followed by meetings around the state throughout the month of August) and a final commission meeting on 12 September, to the Colorado Supreme Court for review of constitutionality, as required by law. (Read Court filing here)

The competing plans for put forward for consideration and public review by the major parties (Democrats and Republicans) over the summer were modified significantly based on public testimony, but were ultimately all rendered irrelevant by 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.

The Colorado Supreme Court is now required to review the approved maps for compliance with constitutional requirements.  Ironically, since the approved maps were drawn up almost entirely by Colorado Reapportionment Commission Chair Mario Carrera, who was 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 following quick-reference summary of constitutional provisions controlling how Colorado’s legislative districts are drawn is provided with a view towards informing public comprehension of what are sure to be both contentious and complex discussions.

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 district maps 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.

Commentary, PPC

Published by CTBC Director on 03 Oct 2011

New Twist in Colorado Congressional Redistricting Court Battle? State Senator Brandon Shaffer files brief to include his own map

The legal battle to re-draw the boundaries of Colorado’s Congressional Districts - sent to the courts for the fourth consecutive decade at the end of the legislative session in May 2011 after the legislature (specifically the state senate) failed to do its job by passing redistricting legislation as required by the Colorado Constitution - recently received a new twist when state Senate President Brandon Shaffer (D-Longmont) filed an amicus curiae brief with the court introducing (and urging adoption of) his own map. (H/T Colorado Peak Politics for breaking the story earlier today: “BRANDON-MANDER GOES TO COURT: Brandon Shaffer Tries To Sue For A Seat In Congress“).

Although the filing of amicus curiae briefs to intervene in court cases of interest are not uncommon, certain aspects make THIS filing rather unusual (and rather ironic).

First, the fact that Congressional redistricting in Colorado has ended up before the courts at all, rather than being carried out by the legislature, which is unambiguously assigned the responsibility under the Colorado Constitution, Article V Section 44,

Text of Section 44:Representatives in Congress.
The general assembly shall divide the state into as many congressional districts as there are representatives in congress apportioned to the state by the congress of United States for the election of one representative to congress for each district. When a new apportionment shall be made by congress, the general assembly shall divide the state into congressional districts accordingly.

is due in no small part to an apparently long-term plan (with the 2010 session closing out with the “Mary-mandering” bill (HB1408) enabling the courts to consider “non-neutral factors” such as partisan affiliation when evaluating redistricting plans) finalized when state senate Democrats, under the leadership of Senate Majority Leader John Morse and Senate President Brandon Shaffer himself, filibustered their own redistricting legislation to prevent a vote.

Second, Brandon Shaffer’s interest in the outcome (along with the shape of the district maps) appears to be directly linked to his personal political aspirations; as the Colorado Peak Politics article points out,

Shaffer’s brief is a pretty brazen move, making Shaffer the only candidate or incumbent to file a motion with the court. Candidates and incumbents are generally expected to stay away from the process, since they have a very clear vested interest in the outcome.

Shaffer’s redistricting amicus brief begins by admitting, with complete irony and total lack of self-consciousness, the failure of the legislature (under his leadership) to do its job:

the Sixty-eighth General Assembly adjourned sine die on May 11, 2011 without discharging its constitutional mandate.

Shaffer’s plan then proceeds to advocate splitting Colorado’s Eastern Plains - defined as a distinct “community of interest” in the foundational and governing case law, Carstens v. Lamm (1982) - in order to consolidate a district around his “home base” (the Longmont-Fort Collins-Greeley triangle).  Curiously (or perhaps, not-so-curiously), Shaffer’s brief ONLY addresses the boundaries of the 4th CD, and advances no argument on the constitutionality of any other districts.

This intentional politicization of the judiciary, already adversely implicated by involvement in what is expressly mandated as a legislative branch responsibility, in order to advance one’s personal political advancement, is deeply troubling.  It is corrosive to our institutions, and undermines the sanctity of the rule of law and public confidence in our courts.

In any event, the case (combined cases, actually) bears careful watching as it plays out in court, scheduled to begin trial (open to the public) on 17 October.

Additional references:

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

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work 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.

Commentary, PPC

Published by CTBC Director on 27 Sep 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

Ultimately, though - it’s worth the effort.

Commentary, PPC

Published by CTBC Director on 20 Sep 2011

Colorado Reapportionment Commission adopts final state legislative district maps - Colorado Supreme Court to review

The Colorado Reapportionment Commission (charged with drawing our state legislative districts) yesterday (19 September 2011) approved the final set of state legislative district maps for Colorado, having completed two rounds of hearing public testimony (meetings in Denver from 31 May to 25 July, followed by meetings around the state throughout the month of August) and a final commission meeting on 12 September.

The competing plans for put forward for consideration and public review by the major parties (Democrats and Republicans) over the summer were modified significant based on public testimony, but were ultimately all rendered irrelevant by 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.

All of the Democrat commissioners joined Carrera in voting for the maps, along with Republican commissioners Gayle Berry, Robert Loevy and Rob Witwer voting yes on the Senate map (Republicans Mario Nicolais and Steve Tool voted no, for a 9-2 vote) and Barry & Loevy again joining Carrera and Democrats in voting yes on the House Map (Republican commissioners Nicolais, Tool and Witwer voted no, for a 8-3 vote).

Earlier today, the Colorado Reapportionment Commission staff issued a release announcing the new maps:

On September 19, 2011, the commission voted to adopt Final Plan Senate 003v1 [Senate map] and Final Plan House 003v1 [House map].   The commission instructed staff to renumber some of the districts.  The commission also authorized staff to make minor technical changes to the plans before the final plans are submitted to the Colorado Supreme Court.  Staff will send out another email once the final plans have been filed with the Colorado Supreme Court.  …

The page also contains a Google Earth map feature allowing the user to zoom in on a particular area of the approved final plans.  For this feature, the user must load the Google Earth application and then download the files of the approved final plans.

The minor technical changes (mostly re-numbering districts) will likely be completed in the next few days, and the maps will be submitted to the Colorado Supreme Court for review of how constitutional criteria have (or have not) been met no later than October 7th.  Legal challenges can (and probably will) be filed with the court once they are submitted for review.  If the Colorado Supreme Court rules that the maps meet Colorado’s constitutional requirements, barring any unresolved legal challenges), the maps will be filed as final with the office of Secretary of State on 14 December.

The following quick-reference summary of constitutional provisions controlling how Colorado’s legislative districts are drawn is provided with a view towards informing public comprehension of what are sure to be both contentious and complex discussions.

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 district maps 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.

Commentary, PPC

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