judicial evaluation

Colorado Supreme Court Chief Justice Bender delivers final ‘State of the Judiciary’ address before Colorado legislature

Published January 13, 2013 | By CTBC Director

Colorado Supreme Court Chief Justice Michael Bender delivered his final ‘State of the Judiciary’ address before the Colorado legislature on Friday (11 January 2013).
[Justice Bender faces mandatory retirement as he reaches the age of 72 next year]

Justice Bender’s speech [read full text here] addressed 3 major themes:

  1. the importance of citizen’s trust in the rule of law in our democracy.
  2. the way in which the judicial branch in Colorado furthers the rule of law for our citizens.
  3. the importance for the courts and the legal community to understand the needs of the public they serve and to collaborate to create programs that address those needs.

Justice Bender’s opening remarks are notable for his nod to principle:

Trust in the rule of law distinguishes our society from many others around the world. When the blind Chinese lawyer and activist, Chen Guangcheng, was allowed to leave China to study in the United States, he noted that China does not lack laws, but it lacks the rule of law. The legitimacy of government depends on the fair, impartial, and reliable administration of the laws.

Courts serve the people of the state by resolving disputes, protecting individual rights, and delivering justice in criminal and civil cases. To ensure a just society Courts must tailor the fair, effective, and efficient delivery of justice to fit each individual case. This mission requires us not only to reach a fair and just outcome but also to do so in a way that is perceived as being fair to all sides. The perception of fairness is as important as the fairness of the outcome.

Clear The Bench Colorado not only embraces, but actively advances the principle of “rule of law” – but notes that Chen Guangcheng’s description of China (as a nation that “does not lack laws, but it lacks the rule of law”) might be taken to apply equally to what’s becoming of the United States.

Justice Bender claims that the Colorado judiciary “reflects [Daniel] Webster’s ideal” – that

“justice is the great interest of man on earth. It is the ligament which binds civilized beings and civilized nations together.”

As evidence, he cites “[T]hree features [that] distinguish our judiciary”

    1. strong bipartisan support from the General Assembly
    2. central financing of courts and probation systems
    3. non-partisan merit-based selection process and “rigorous” evaluation of judicial performance by “independent” commissions.

However, Bender presents a flimsy case for an “ideal” Colorado judiciary.

“Bipartisan” support and central financing are irrelevant to whether (or not) the judiciary achieves the standard of “fairness” and upholds the rule of law.

Moreover, Colorado’s “merit-based” judicial selection process falls short of achieving the standards of transparency and accountability we should expect from our vitally important 3rd branch of government, and remains controlled by legal-establishment special interests out of public view.

Even worse, Colorado’s official system of evaluating judicial performance is anything but “rigorous” – the evaluation commissions, having no requirement for partisan balance (in contrast to the judicial selection commissions) are not infrequently dominated by one party and/or by special-interest groups, giving rise to charges of bias, and more broadly panned for failure to provide substantive evaluations of judicial performance, as noted in this commentary by a former performance review commissioner:

There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters.  If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do.  Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations.  Some commentators and observers have denigrated the narratives as a “rubber stamp” exercise for retaining judges.

Chief Justice Bender wrapped up his address by listing a number of initiatives that “tap into existing community resources and sometimes private dollars to leverage public funding,” including an increase of “problem-solving courts” (from 61 to 72), a “civil action pilot program” for resolution of business disputes, along with some personnel and administrative efficiencies achieved statewide  (including a court-run civil e-filing system).  He closed with effusive praise for the legislature’s “bipartisan support” for the new Colorado Judicial Center – funded by taxpayers to the tune of $258M by a combination of debt (er, “non-debt”) and new “fees” to access the courts.

Actions speak louder than words; and although Bender’s speech gives lip service to the primacy of the rule of law, his actions on the bench have demonstrated the opposite.  Indeed, Bender has been one of the most egregious perpetrators of putting personal views (his own) above the letter of the law.

The contrast between rhetoric and reality is the true “State of the Judiciary” in Colorado.

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.

Are Colorado’s “official” judicial performance reviewers violating state election laws?

Published November 5, 2012 | By CTBC Director

Colorado’s “official” judicial performance reviewers – the state’s “Commissions on Judicial Performance” and the “Colorado Office of Judicial Performance Evaluation” (COJPE) – are charged under state statute to

…establish a system of evaluating judicial performance to provide persons voting on the retention of justices and judges with fair, responsible, and constructive information about judicial performance… (C.R.S. 13-5.5-101)

Although one can certainly argue about whether the commissions, and COJPE, have fulfilled their mandate (Clear The Bench Colorado is among the many critics – including several former judicial performance commissioners –  who find the “reviews” or “narratives” produced by the commissions and COJPE actually provide little information of substance to help inform voters), not even advocates of the commissions and COJPE would seriously advance the notion that either is above, or not otherwise subject to, state law.

Yet the commissions, and COJPE – aided and abetted by others within the legal/judicial industrial complex – have repeatedly acted as though Colorado’s elections and campaign finance laws do not apply to them.

Many Colorado voters may remember the massively-funded (approaching or even exceeding $250,000) “Know Your Judge” campaign established to counter Clear The Bench Colorado‘s success in raising voter awareness during the 2010 election cycle.  Although the “Know Your Judge” campaign (self-described AS a “campaign”) raised and spent “big money” to influence elections, they did NOT register a campaign committee (a requirement under state law) even though they ran thousands of ads in support of candidates on the ballot. (Ironically, the “Know Your Judge” campaign escaped sanctions for their violations of state law in large part by claiming that their campaign advertisements were a purely “educational effort.”  Curiously, the legal-establishment special-interest groups funding the “Know Your Judge” campaign haven’t continued their “purely educational” efforts this year…)

The violations committed by the “Know Your Judge” campaign, blatant and brazen as they were, pale in comparison to the systematic and comprehensive violations of Colorado’s prohibition of electioneering activities perpetrated on an ongoing basis by the commissions and the COJPE in every election cycle.

Colorado election law prohibits

 …any electioneering on the day of any election within any polling place or in any public street or room or in any public manner within one hundred feet of any building in which a polling place is located, as publicly posted by the designated election official. As used in this section, the term “electioneering” includes campaigning for or against any candidate who is on the ballot or any ballot issue or ballot question that is on the ballot. (C.R.S. 1-13-714, Electioneering)

Since the “Blue Book” materials include the commissions’ and COJPE’s “Reviews of Judicial Performance” with “recommendations” advocating votes for “any candidate who is on the ballot” for judicial office, the presence of those materials at polling places constitutes a violation of Colorado election law.

As reported by the Law Week Colorado weekly (“ Judicial Branch Critic Files Election Complaint“), the Colorado Secretary of State’s office is investigating a complaint filed by Clear The Bench Colorado Director Matt Arnold noting that

“(COJPE and CJP) are systematically violating the prohibition on Electioneering activities by having their “recommendations” (advocating a vote) for candidates for judicial office (“retention”) placed at polling locations throughout the state.”
Adding insult to injury, these state offices – by using taxpayer money to advocate in election campaigns – are breaking another state law

by utilizing state (taxpayer) resources to produce and disseminate the electioneering materials, these organizations are violating state law (C.R.S. 1-45-117, State and political subdivisions – limitations on contributions) prohibiting the use of state funds to advocate “in campaigns involving the nomination, retention, or election of any person to any public office…”

 Why do we have political appointees (judicial performance commissioners are appointed by the governor, attorney general, state legislators and the Chief Justice of the Colorado Supreme Court – the latter seeming to have a conflict of interest) using taxpayer money to tell Coloradans how to vote?

What can you do about it? If you observe a “Blue Book” at your early vote center, mail-in ballot drop-off location or Election Day Polling Place, ask the election judges on site to remove the offending material, and file a complaint of electioneering activity with the Colorado Secretary of State’s office using this simple form: http://www.sos.state.co.us/pubs/elections/HAVA/files/HAVA_complaint_form_05-15-08.pdf

You CAN make a difference – take a stand for election integrity and against the waste of your tax dollars by government officials trying to tell you how to vote.

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 “Know Your Judges” with substantive evaluations of judicial performance

Published October 29, 2012 | By CTBC Director

[Clear The Bench Colorado Director Matt Arnold's article, below, was published Friday 26 October as a Guest Commentary by the Denver Post ("Evaluate the performance of Colorado judges before voting" in the Idea Log online opinion section, and in the Colorado Springs Gazette, in the Sunday 28 October print edition]

“Know Your Judges” with substantive evaluations of judicial performance

We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.
— Abraham Lincoln

As Coloradans 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: our state’s 3rd Branch of government, the judges.

The official, government-sanctioned incumbent-protection “reviews” produced by the  state’s Commissions on Judicial Performance (published and disseminated, at taxpayer expense, in the “Blue Book”) fail to provide much (if any) substance behind the published “recommendations” (almost uniformly in favor of “retaining” judicial incumbents in office).  In that respect, the Blue Book “reviews” are little more than (taxpayer-funded) political ads for incumbents.

The Commissions on Judicial Performance (groups of political appointees charged with evaluating and reporting on the job performance of judicial incumbents) routinely fail to actually evaluate judicial job performance or provide adequate information sufficient for voters to base a decision.  Summarizing an incumbent’s resume and tabulating the results of surveys sent out to a select group of lawyers and other judges fails to answer the question posed to voters, “do they deserve another term – and why?”

A Denver Post guest commentary by a former Judicial Performance commissioner (February 2010) noted,

There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters.
If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do.  Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations.  Some commentators and observers have denigrated the narratives as a “rubber stamp” exercise for retaining judges.

Why do we have political appointees (commissioners are appointed by the governor, attorney general, state legislators and the Chief Justice of the Colorado Supreme Court – the latter seeming to have a conflict of interest) telling Coloradans how to vote?

Colorado voters deserve better information on these unelected officials, who (usually with little notice) exert enormous influence over their lives.  For the second straight election cycle, 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 and county judges from around the state, and published this information in an easy-to-read “scorecard” format as a resource for Colorado voters.

Our courts rule on important issues that seriously impact all Colorado citizens, including:

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. (http://www.clearthebenchcolorado.org/evaluations-2012/)

Clear The Bench Colorado helps Colorado voters to “know your judges” with substantive evaluations of judicial performance

Published October 10, 2012 | By CTBC Director

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 judges seeking retention in office 2012

Published August 8, 2012 | By CTBC Director

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.

Bottom Line: an informed citizenry and active citizen participation is vital in restoring accountability and transparency to the 3rd branch of state government, the judicial branch.

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.

Federal judge allows “Fenster’s Folly” frivolous anti-TABOR lawsuit to progress to trial

Published July 30, 2012 | By CTBC Director

The frivolous, groundless, and vexatious politically-motivated lawsuit attempting to overturn a Colorado Constitutional Amendment (the Taxpayer’s Bill of Rights, colloquially known as “TABOR”) filed in Federal court in May 2011 will now progress to trial on the basis of today’s ruling by U.S. District Court Judge William Martinez.

Judge Martinez dismissed the last attempt by the state’s attorneys to dismiss the lawsuit, filed by 33 plaintiffs who are mostly Democrats,  before going to trial (and sparing Colorado taxpayers significant expense).  Judge Martinez rejected the state’s argument that the plaintiffs lacked standing to sue; as reported in the Denver Post,

Martínez disagreed, writing in a 73-page ruling, “The court holds that the plaintiffs who are current members of the Colorado General Assembly have standing to bring this action.”
His ruling added, “The Court also holds that plaintiffs’ claims are not barred by the political question doctrine.”

The judge’s hostility to TABOR (and the state’s arguments to dismiss, based on clear constitutional precedent) has been evident for some time; indeed, we predicted back in February (following the initial hearing on oral arguments to dismiss the lawsuit) that Judge Martinez appeared “disinclined to honor the Supreme Court precedent” making it “likely that the case will continue to trial, and may ultimately end up before the United States Supreme Court.”

Reference state’s Motion to Dismiss Plaintiffs’ Substitute Complaint (which was filed back in August by Governor Hickenlooper and Attorney General Suthers – also, analysis of the state’s Motion to Dismiss).

Unfortunately, although the lawsuit is lacking in legal merit, and constitutional case law precedent (including two relevant Supreme Court of the United States [SCOTUS] decisions) has repeatedly ruled that the “Republican form of government” language in the Constitution’s “Guarantee Clause” (United States Constitution, Article IV, Section 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government“) is non-justiciable (meaning, not subject to determination by the courts), and constitutional constraints on government are, by definition, constitutionally allowed – now that the lawsuit is proceeding to trial, it will cost Colorado taxpayers hundreds of thousands in legal fees and costs, and will almost certainly ultimately end up before the United States Supreme Court since overturning a state constitutional amendment by judicial fiat would have immense implications for the citizens’ initiative process and the right of the people to limit government power by constitutional limits nationwide.

If “We The People” cannot set constitutional limits on government power, then the very founding principles of this nation – indeed, the foundations of Liberty itself – are at risk.

Additional references:
A more detailed (and highly informative) discussion of the constitutionality of the citizen initiative and referendum processes may be found in the Texas Law Review article, “A Republic, Not a Democracy?  Initiative, Referendum, and the Constitution’s Guarantee Clause” by Professor Robert G. Natelson.

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.

Frivolous anti-TABOR lawsuit (“Fenster’s Folly”) gets hearing before Federal judge, who questions Supreme Court precedent

Published February 16, 2012 | By CTBC Director

The frivolous, groundless, and vexatious politically-motivated lawsuit attempting to overturn a Colorado Constitutional Amendment (the Taxpayer’s Bill of Rights, colloquially known as “TABOR”) filed in Federal court last May got its day in court yesterday (Wednesday, 15 February) before U.S. District Court Judge William Martinez, in oral arguments on the state’s Motion to Dismiss Plaintiffs’ Substitute Complaint (actually filed back in August by Governor Hickenlooper and Attorney General Suthers – read more for analysis of the state’s Motion to Dismiss).

Legal precedent – including two relevant Supreme Court of the United States (SCOTUS) decisions – is clear; Fenster’s lawsuit is frivolous, the “Republican form of government” language in the Constitution’s “Guarantee Clause” (United States Constitution, Article IV, Section 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government“) has been repeatedly ruled non-justiciable (meaning, not subject to determination by the courts), and constitutional constraints on government (such as the TABOR amendment) are, by definition, constitutionally allowed.

The two relevant SCOTUS cases on the “Guarantee Clause” have unambiguously held the “Republican form of government” language to be non-justiciable:

In Luther v. Borden, 48 U.S. 1 (1849), the Supreme Court rejected an attempt to put the “republican character” of state government subject to judicial review, holding that “it rests with Congress to decide what government is the established one in a State … as well as its republican character.”  The court, properly exercising judicial restraint, held the “Guarantee Clause” to be a political question, not a judicial one – and therefore not subject to review by the courts (i.e. non-justiciable).

A more recent case, Pacific States Telephone and Telegraph Company v. Oregon, 223 U.S. 118 (1912) dealt specifically with a challenge to the use of citizen initiatives in states (such as Colorado’s TABOR Amendment). In that case, the Court also held that challenges to a state’s “republican character” are non-justiciable political questions:

The enforcement of the provision in § 4 of Art. IV of the Constitution that the United States shall guarantee to every State a republican form of government is of a political character, and exclusively committed to Congress, and as such is beyond the jurisdiction of the courts.

However, Judge Martinez appears disinclined to honor the Supreme Court precedent, based on his statements during the hearing.  As reported in the Denver Post,

U.S. District Judge William Martinez – while not ruling Wednesday – disagreed with key arguments presented by Colorado Attorney General John Suthers’ office in its defense of TABOR. Martinez flatly opposed the notion that a century-old Oregon decision settled issues around the present-day case.

On what grounds?  After all, as the state’s attorney (Assistant Attorney General Megan Paris Rundlet) argued, ”The (Oregon) case does present almost precisely the same issues that are before this court.”

The Denver Post article (Judge questions precedent cited to defend Colorado’s TABOR) continues:

“That’s not how I see it,” Martinez replied, saying the Oregon case involved a challenge of the initiative process itself, while the lawsuit before his court was a challenge of an initiative’s result – in this case TABOR.

“It’s clear the plaintiffs are not challenging the citizens’ initiative ballot process in Colorado,” Martinez said. “If your argument is this case is the same case as (in the Oregon ruling) … I don’t see it that way.”

However, Judge Martinez – either intentionally or erroneously – appears to be misreading the case, since (as noted above) the Oregon ruling did NOT simply deal with the issue of the initiative process, but with the larger question of judicial review of the “Guarantee Clause” and the “republican character” of state government more generally.

Unfortunately, although it may be weeks or even months before Judge Martinez issues his ruling on the state’s Motion to Dismiss Plaintiffs’ Substitute Complaint, based on his comments and statements during the hearing, it appears likely that the case will continue to trial, and may ultimately end up before the United States Supreme Court – since overturning a state constitutional amendment by judicial fiat would have immense implications for the citizens’ initivative process and the right of the people to limit government power by constitutional limits nationwide.

If “We The People” cannot set constitutional limits on government power, then the very founding principles of this nation – indeed, the foundations of Liberty itself – are at risk.

Additional references:
A more detailed (and highly informative) discussion of the constitutionality of the citizen initiative and referendum processes may be found in the Texas Law Review article, “A Republic, Not a Democracy?  Initiative, Referendum, and the Constitution’s Guarantee Clause” by Professor Robert G. Natelson.

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

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

Ultimately, though – it’s worth the effort.

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

Published November 16, 2011 | By CTBC Director

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

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

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

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

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

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

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

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

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

Colorado Constitutional Requirements:

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

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

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

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

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

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

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

Additional references:

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

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

Ultimately, though – it’s worth the effort.

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

Published November 9, 2011 | By CTBC Director

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

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

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

Some examples:

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

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

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

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

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

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

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

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

Quo Vadis?

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

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

Any takers?

Colorado Constitutional Requirements:

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

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

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

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

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

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

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

Additional references:

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

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

Ultimately, though – it’s worth the effort.

Colorado Supreme Court approves 40% tax increase

Published November 4, 2011 | By CTBC Director

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

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

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

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

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

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

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

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

(3) Therefore, TABOR was violated.

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

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

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

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

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

As Justice Coats made clear in his dissent:

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

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

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

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

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

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

Ultimately, though – it’s worth the effort.

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