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:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & legislative reapportionment)

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.

The Colorado Reapportionment Commission (charged with drawing our state legislative districts) votes today on 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) at the Legislative Services Building (Hearing Room A) on 200 East 14th Avenue Denver 80203 (located just across the street to the south of the Colorado state Capitol building) starting at 11.  (Click here for meeting agenda)

The final plans for consideration have undergone significant changes in the last week alone; since the commission met last Monday to discuss what were then two competing sets of “semi-finalist” maps (below), the field of potential map finalists has expanded considerably (including revisions to previously introduced maps by both Democrats and Republicans, and the introduction of an entirely new set of maps by the commission’s sole unaffiliated member and chair Mario Carrera).

The most current set of proposed state legislative district maps can be viewed here.

Last week’s proposed State House legislative district maps:

• Semi-Final Statewide House Map (Democrat)
• Semi-Final Statewide House Map (Republican)

Last week’s State Senate legislative district maps:

• Semi-Final Statewide Senate Map (Democrat)
• Semi-Final Statewide Senate Map (Republican)

Following Monday’s meeting, at which the commission will adopt a single set of legislative district maps by majority vote, the commission must submit the final, approved maps to the Colorado Supreme Court for review of constitutionality no later than October 7th.

It is likely that much of Monday’s discussion, and the final vote, will center around how each map meets (or fails to meet) Colorado’s constitutional criteria for drawing state legislative districts.

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 legislative districts to pass constitutional review.  Note also that “competitiveness” - however defined - is NOT a constitutional criterion and should not guide the court’s review of the proposed legislative district maps.

Additional references:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & legislative reapportionment)

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.

The Colorado Judicial Branch, “[o]n behalf of Gov. John Hickenlooper, Attorney General John Suthers and Chief Justice Michael L. Bender,” recently announced “the opening of the application period for 45 vacancies on judicial nominating commissions across the state of Colorado.”  (Colorado Judicial Branch press release, 15 September 2011)

Some positions are open now; the majority of vacancies will occur when current commissioners’ six-year terms end Dec. 31. All commissioners serve as volunteers. Applications are due on or before October 14, 2011.

Under Colorado’s “merit selection and retention” system of filling judicial offices, the judicial nominating commissions - at either the district level, or statewide - represent one of the few opportunities for Colorado citizens to have a say in the composition of our courts.  In essence, the commissions are the means by which Citizens can become involved in choosing our judges.

At the district level (Colorado is divided into 22 judicial districts),

Each judicial district nominating commission consists of seven citizens residing in that judicial district. No more than four members can be from the same political party, and there must be at least one voting member from each county in the district. [Source: Colorado State Courts,  Judicial Nominating Commissions]

At the statewide level (including both the Colorado Supreme Court and Court of Appeals),

The Supreme Court Nominating Commission recommends candidates to serve as judges for the Supreme Court and the Court of Appeals. The chief justice of the Supreme Court chairs the commission and is a non-voting member. This commission includes one citizen admitted to practice law in Colorado and one citizen not admitted to practice law residing in each of the state’s seven congressional districts, and one additional citizen not admitted to practice law in Colorado.  [Total of 15 commissioners] (Source: Judicial Nominating Commissions)

According to the state courts website (Judicial Nominating Commissions), there is one current vacancy on the Supreme Court Nominating Commission (a non-attorney who must reside in the 4th Congressional District); another position until recently vacant was filled with Jeffco Chief Deputy DA Charles Tingle (a Republican) for the 7th Congressional District attorney slot.  An additional 3 seats on the commission (one attorney, from the 5th Congressional District, and a non-attorney each from the 2nd and 7th Congressional Districts) are opening when the currently serving commissioners (all Republicans) term expires.  All commissioners serve as volunteers. Applications are due on or before October 14, 2011.

UPDATE: Law Week Colorado profiles the current members of the Supreme Court Nominating Commission (”Meet Those Who Will Help Select Colorado’s Next Justice“)

(For a full list of district commission openings, view the Judicial Nominating Commissions and scroll to the bottom)

From the press release:

Application forms for vacancies on the various commissions may be found on the Colorado Judicial Department web site at http://www.courts.state.co.us/Courts/Supreme_Court/Nominating.cfm. Completed application forms may be mailed to Romaine Pacheco, Governor’s Office of Boards and Commissions, 136 State Capitol Bldg., Denver, CO 80203.  They also may be faxed to 303-866-6368 or sent by e-mail to boards@state.co.us.

Article VI, Section 24 of the Colorado Constitution requires that for any nominating commission, “no more than one-half of the commission members plus one, exclusive of the Supreme Court justice serving as ex officio chair, shall be members of the same political party.” The Constitution also requires that at least one commissioner reside in each of the counties of the district. Applicants must reside in the judicial district - or, for the Supreme Court Nominating Commission, the Congressional District - to which they are applying for appointment.

Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges - who understand that their role is to fairly and impartially uphold and apply the law - are elevated to 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.

The Colorado Reapportionment Commission (charged with drawing our state legislative districts) has completed the semi-final set of legislative district maps for Colorado, having heard public testimony in meetings around the state throughout the month of August, and will be discussing competing versions for both state House and state Senate legislative districts in hearings today, at the Legislative Services Building (Hearing Room A) on 200 East 14th Avenue Denver 80203 (located just across the street to the south of the Colorado state Capitol building) starting at 11.  (Click here for meeting agenda)

The maps are only semi-final at this stage because the commission’s membership is split nearly equally between Republican and Democrat appointments (5 each) with an unaffiliated chair, Mario Carrera, as the 11th (and frequently tie-breaking) member, and each side has submitted their own version of a proposed “final” map (one each for House and Senate state legislative districts) which will be discussed in the Monday meeting.

Colorado’s state legislative district map semi-finalists:

State House legislative districts:

• Final Statewide House Map (Democrat)
• Final Statewide House Map (Republican)

State Senate legislative districts:

• Final Statewide Senate Map (Democrat)
• Final Statewide Senate Map (Republican)

Following Monday’s meeting, at which these maps will be discussed, the commission will have one more week to make any final adjustments to “tweak” the maps before holding a final vote at another public meeting next Monday, the 19th.  The commission must submit the final, approved maps to the Colorado Supreme Court for review of constitutionality no later than October 7th.

It is likely that much of Monday’s discussion, and next Monday’s final vote, will center around how each map meets (or fails to meet) Colorado’s constitutional criteria for drawing state legislative district boundaries.

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 legislative districts to pass constitutional review.

Additional references:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)

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.

“It is Tuesday morning, the 11th of September… and you will not forget this date.”
(TV reporter, unknown, reporting from NYC as events unfolded on the morning of 9/11…)

10 years ago today, the most horrific attack ever carried out on American soil claimed the lives of thousands of Americans, making clear that “there’ll be no shelter here - front lines are everywhere.”

Looking back, it occurred to me that I’ve since spent most anniversaries of that fateful Tuesday morning - forever burned into the American psyche as, simply, 9/11 - on duty away from home.

2002: Afghanistan; 2003: Fort Benning, Georgia; 2005: Operation Katrina (hurricane disaster relief/recovery operations); 2006: Fort Bragg, North Carolina; 2009: Camp Williams, Utah; and now this year, 2011: Fort Indiantown Gap, Pennsylvania.

My experience in this regard is hardly unique - indeed, I’ve spent less time on duty away from home than many others who proudly wear the uniform - a mere token of service willingly rendered in defense of our nation, and the Constitution we are sworn to support and defend.

Sadly, many of the men and women in uniform serving on that day and since - military, NYC Police & Port Authority, and FDNY - are not “invited” to the 10th anniversary of 9/11 at Ground Zero ’due to “lack of room”. Funny - they weren’t “invited” on that fateful day in 2001 either - they just “showed up” and did what needed to be done.

However, America isn’t about the politicians, officials, and various muckety-mucks who’ll be pontificating at that “official” event and others.

America is about the brave people - often bearing only the proud title of “Citizen” - who just “show up” to do what needs doing.

Defending the Constitution - Why 9/11 still matters today (10 years later)

Clear The Bench Colorado joins millions of Americans across the country in somber remembrance of the 9/11 attacks on our nation.

What does this have to do with holding our Colorado Supreme Court justices accountable to the rule of law and the Colorado Constitution?  Quite a lot, actually…

As a proud veteran of the U.S. military (including service in the Colorado Army National Guard), I take my oath of enlistment - “I will support and defend the Constitution of the United States and the State of Colorado [emphasis added] against all enemies, foreign and domestic”  - seriously; very seriously.

Many of our elected (and unelected) officials seem to have a much more cavalier attitude towards their own oath of office.

Colorado Supreme Court justices also swear a similar oath on taking office, which begins:
“I will support the Constitution of the United States and the Constitution of the State of Colorado.”

Note that the judicial oath of office does not state “I will support only those parts of the Constitution that I like or with which I personally agree or empathize.”

Yet the Mullarkey Court has consistently ruled against the Colorado Constitution’s Article X, Section 20 (TABOR) in every case it has heard - despite the clear intent and letter of the law that “[i]ts preferred interpretation shall reasonably restrain most the growth of government.”

The Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, Chief Justice Mary Mullarkey) are oathbreakers - and dishonor the service of the men and women of the United States military and law enforcement agencies who put their lives on the line to support and defend our Constitution.  They have proven themselves unworthy of the high office they occupy.

Another important lesson of 9/11 is that individuals matter - and fighting to defend your rights, and your lives, is the only way to preserve your rights (and your life, in extremis) when under attack.  The true heroes of that day were not only the firefighters but also the ordinary citizens who acted to save lives - and the brave passengers on Flight 93 who fought back against the hijackers on the 4th plane and died not as victims, but as American heroes.

We can no longer be under any illusion - as the passengers on Flight 93 discovered - that our rights and lives are NOT under attack; we are threatened by enemies both foreign and domestic.   The nature of the threat (and appropriate response) is different, but the need to take action, to defend your rights - remains the same.

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

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

Ultimately, though - it’s worth the effort.

The Colorado Reapportionment Commission (charged with drawing our state legislative districts) has completed the final set of preliminary legislative district maps for Colorado, having heard public testimony in meetings in Denver from 31 May to 25 July and bringing the maps to a vote in committee.

This week, the commission wraps up its road show, traveling around the state to solicit additional public testimony and feedback on the preliminary legislative district maps, with hearings in Greeley (Aug 29th), Castle Rock (Aug 30th), back in Denver (Aug 31st), and Broomfield (Sept 1st).

(Details on meeting times and locations available here)

The preliminary state legislative district maps approved by the Colorado Reapportionment Commission may be viewed in their entirety via the following links:

Statewide House district maps (overview and detail)

Statewide Senate district maps (overview and detail)

The point of testifying before the commission in these public hearings is both to sway the voting members of the commission to alter the preliminary maps due to prevailing sentiment on how people in a given area wish to be represented, and to build the record for the Colorado Supreme Court’s review of the constitutionality of the adopted maps.

The following quick-reference summary of constitutional provisions controlling how Colorado’s legislative districts are drawn is provided with a view towards informing public testimony - remember to keep your testimony succinct and know your facts to be more effective.

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:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)

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.

Wednesday’s surprise announcement by Colorado Supreme Court Justice Alex Martinez that he intends to resign from the bench (in order to become Denver Manager of Safety) brings renewed focus to the judicial selection and retention system in Colorado.  Unlike other states, many of which either elect judges or appoint them without any form of popular accountability, Colorado’s mixed system of appointment and accountability via retention elections is not well understood by the general public.

Misconceptions, misunderstanding, and misinformation about the process for selecting the judicial branch officeholders in Colorado is (unfortunately) all too common. Part of Clear The Bench Colorado’s mission is to contribute to informing the electorate about their constitutional rights to hold the judiciary accountable via the retention election process, and the process for selecting replacements for outgoing judges.  Since We The People do not vote for their replacements, who gets to decide?

Unfortunately, most Colorado citizens know more about the process of picking the Pope than about how our state selects nominees for judicial office.

This is unfortunate - because, despite some flaws (most importantly, a lack of transparency and public accountability - secrecy encouraged by the legal establishment, who are more interested in protecting their members and covering for their ‘buddies on the bench’ than allowing them to be called to account), the process does provide some level of front-end vetting of judicial applicants, filtering out the obviously unqualified and excessively partisan (weeding out the ‘worst of the worst’).

Clear The Bench Colorado published an overview of the judicial selection process (”Selecting the next Colorado Supreme Court justice(s) post-Mullarkey retirement and retention elections - who decides?“) last year; this article is an updated version, incorporating insights gained from discussions with former Nominating Commission members.

How Colorado selects individuals for judicial office:

Under the Colorado Constitution, Article VI (Judiciary), Section 20:

First, although the governor has the final say in the process (making the final pick), he does not have an entirely free hand.  Unlike the process for selecting Federal judges, there is NO role under Colorado’s “merit selection” process for the legislative branch to provide a check or balance to executive power via “advice and consent.”  The legislature does not weigh in on the process in any formal or legal way (although individual legislators may make their thoughts known to the governor, who has the final say).

Instead, the “front-end” check is provided by an appointed Judicial Nominating Commission, as described in this entry in the Judgepedia website:

The Supreme Court Nominating Commission recommends candidates to serve as judges for the Supreme Court and the Court of Appeals. The chief justice of the Supreme Court chairs the commission and is a non-voting member. This commission includes one citizen admitted to practice law in Colorado and one citizen not admitted to practice law residing in each of the state’s seven congressional districts, and one additional citizen not admitted to practice law in Colorado.^[1]

Commission members serve six-year terms. Non-lawyers, who are the majority of every nominating commission, are appointed by the governor. Lawyer members are appointed by joint action of the governor, attorney general, and chief justice.

Not noted in the Judgepedia article, but specified under the constitutional language (Article VI, Section 24 Judicial nominating commissions) is a requirement for some partisan balance on the commission:

(2) The supreme court nominating commission shall consist of the chief justice or acting chief justice of the supreme court, ex officio, who shall act as chairman and shall have no vote, one citizen admitted to practice law before the courts of this state and one other citizen not admitted to practice law in the courts of this state residing in each congressional district in the state, and one additional citizen not admitted to practice law in the courts of this state. No more than one half of the commission members plus one, exclusive of the chief justice, shall be members of the same political party.

The commission has 30 days from when the vacancy is announced to meet, review applications, conduct interviews, and select three finalists to submit to the governor, who then has 15 days to make a selection (if the governor fails to make a pick, then the Chief Justice selects instead).

Newly appointed justices “shall hold office for a provisional term of two years and then until the second Tuesday in January following the next general election” after which they enjoy 10-year terms:

Section 7. Term of office. The full term of office of justices of the supreme court shall be ten years.

By the Numbers: How the Judicial Selection Process actually works

1. On announcement of the vacancy and solicitation for application, prospective nominees submit an extensive application packet (including a long questionnaire, writing sample, background information, summary of relevant professional experience, and references).
2. Commission members review the applications, and select from the total list (last year, 31 people applied for the impending vacancy) for interviews (a particular candidate will be interviewed if any commissioner expresses a strong desire to have them appear).  Commissioners consider the current makeup of the court, and may advocate for a specific constituency - a particular area of legal expertise - such as water or business law, or possibly a regional or ethnic representation in pursuit of court ‘diversity’).  Interviews are based on a common set of ‘core’ questions (for consistency of comparison & evaluation); each commissioner develops and uses his/her own evaluation criteria.
3. Following interviews, the commission deliberates/discusses the candidate, voicing comments or concerns to the group at large.
4. Following all of the interviews, the commission casts a ballot - three unranked votes per opening (for the Colorado Supreme Court or Court of Appeals - lower courts may only require 2-3 nominees).  The top vote-getters become the finalists - with the caveat that any finalist MUST receive a majority of total Commission votes (i.e. 8 of 15), irrespective of how many are actually present.  Multiple ballots may be (generally are) necessary.  (Note that the current makeup of the Nominating Commission - 7 Democrats, 5 Republicans, 3 Unaffiliated -  ensures that any finalists MUST receive at least one vote from multiple party affiliations).
5. The names of the three finalists are submitted for consideration by the governor, who has 15 days to make a selection from the list.

ALL of our sources (from differing party backgrounds) have stressed that the Nomination Commission deliberations are non-partisan (which is not to say, as our sources admit, that the deliberations and considerations do not reflect ideology or judicial philosophy - which is, in our view, entirely appropriate).

A common critique of Colorado’s system of “merit selection & retention” for judges is the lack of transparency in commission deliberations (both during front-end judicial selection, and in back-end judicial performance review and retention) and lack of meaningful opportunity for public participation and comment.  This lack of transparency leads to a lack of public confidence in our judiciary and ultimately to a lack of accountability for the increasingly active and powerful Third Branch of our government.

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.

Colorado Supreme Court Justice Alex Martinez unexpectedly announced earlier today (Wednesday, August 24th 2011) that he intends to resign his seat on the state’s highest court in order to take a job with the City of Denver as Manager of Safety.

Justice Martinez, who was retained in office November 2010 with the lowest percentage of “retain” votes for an incumbent state supreme court justice in Colorado history (59%, narrowly edging current Chief Justice Michael Bender’s 60% and Justice Nancy Rice’s 62% for “worst ever;” incumbent supreme court justices are typically retained with 75-80% of the vote) could have continued to hold office for another decade.

Clear The Bench Colorado considers it a win for Colorado - and the damaged reputation of the Colorado judiciary - that he will not.

At the risk of once again being called “the skunk at the garden party” by the Denver Post, we point out the “troubling legacy” of Justice Martinez’s tenure on the bench (much as the “troubling legacy” of resigning Chief Justice Mary Mullarkey was reviewed at the time of her resignation - by the Post).

Justice Martinez was in fact one of the most reliable members of the highly political “Mullarkey Majority”, joining in or writing all of the key decisions over the past decade that made a mockery of constitutional jurisprudence in Colorado:

• Joining in the 2003 Salazar v. Davidson majority, Martinez helped perpetrate a judicial power grab as the courts conducted Congressional redistricting despite clear constitutional language reserving that power to the ’General Assembly’ and defining the General Assembly as “consisting of a senate and house of representatives.”
• Justice Martinez authored the blatantly political decision to keep a citizen’s initiative to restrict taxpayer funding of services to illegals (Initiative 55) off the 2006 ballot based on an “elastic definition” of the single-subject rule.  Even the Denver Post (which vehemently opposed the initiative) decried the ruling.  Former Democrat Governor Dick Lamm panned the court as “Politicians in Black Robes“, saying “This is not justice; it is politics - of the worst kind.”
• Justice Martinez joined Justice Michael Bender’s politically-derived opinion allowing unions to skirt Colorado campaign finance laws in the 2008 CEA v. Rutt case, overturning the Colorado Court of Appeals which had held (correctly) that unions made illegal contributions when they coordinated their activities with a candidate’s campaign.
• Justice Martinez joined in Colorado’s version of the infamous Kelo eminent domain abuse case, the 2008 “Telluride Land Grab” (Telluride v. San Miguel), authorizing government taking of private property via eminent domain - despite contrary statutory language and despite the fact that the property taken was outside the jurisdiction of the seizing authority.
• Justice Martinez joined the majority in the Nov. 2008 Barber v. Ritter decision which declared that “fees are not taxes” as long as they are called “fees” - laying the groundwork for the notorious and regressive Colorado Car Tax (”FASTER”) tax (er, “fee”) increase.
• Justice Martinez joined the Mullarkey Majority on the infamous March 2009 “Mill Levy Tax Freeze” (Mesa County v. Colorado) ruling which deprived Coloradans of their constitutional right to vote on tax increases, and also eliminated constitutional protections for existing tax credits and exemptions (leading to the “Dirty Dozen” tax increases passed by the legislature the following year).
• In a case with significant and still unfolding implications for Colorado (Governor Hickenlooper recently described the potential consequences as “devastating”), Justice Martinez joined in overturning two lower courts holding (again, correctly) that educational funding policy was not a matter for the courts to decide in the 2009 Lobato v. Colorado case.
• Just days before the Nov. 2010 election, Justice Martinez joined “in one of those quirky rulings for which it is now notorious, reversed the conviction of a man who used another person’s Social Security number to obtain an auto loan.“
• After the election, it didn’t get any better, as Justice Martinez joined in creating a windfall for personal injury trial lawyers (the “ambulance-chaser” set) in the late-November (28th) 2010 Volunteers of America v. Gardenswartz case.  (That ruling was apparently the straw breaking the camel’s back for a national association evaluating state courts, which added Colorado to the list of jurisdictions nationally qualifying as a “judicial hellhole”).

Justice Martinez’s legacy on the Colorado Supreme Court is indeed “troubling” - as noted in the Evaluations of Judicial Performance published prior to the November 2010 election.

While we bear Justice Martinez no personal animosity (by all accounts, he’s a nice guy) and wish him the best in his future endeavors as Denver Manager of Safety, we greet his departure from the Colorado Supreme Court with favor and look forward with guarded optimism to welcoming a new Colorado Supreme Court justice dedicated to upholding the Colorado Constitution and restoring the rule of law.

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

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

Ultimately, though - it’s worth the effort.

The unveiling of new map proposals by Democrat and Republican parties over the last few days has renewed focus on the legal battle to determine the boundaries of Colorado’s Congressional districts, since the legislature (specifically the state senate) failed to do its job by passing redistricting legislation as required by the Colorado Constitution and sent it to the courts for the fourth consecutive decade at the end of the legislative session in May) .

Republicans were first to file their proposed Congressional district map in court (on Friday); interestingly, it makes few changes from the map drawn by the courts (in violation of Colorado’s clear constitutional language assigning responsibility for Congressional redistricting to the General Assembly) a decade ago.

…under the GOP map, Baca County on the southeastern border is the only entire county to moved into another district. …

The GOP also said the map “moves the “absolute fewest number of Coloradans” possible in order to accomodate (sic) population shifts in the last decade, according to court records.

On Monday, the Democrats filed their map with the court - which “proposed dramatic changes to Colorado’s congressional boundaries.”  As noted in the Denver Post’s article, the most radical changes would be to the 6th Congressional District, currently represented by Republican Mike Coffman, moving the district significantly northward to include all of Aurora, dividing the western half of both Arapahoe and Adams counties and extending into Weld County, and moving Douglas and Elbert counties to the 4th Congressional District (currently represented by freshman Republican Cory Gardner), which would lose most of Larimer County to the 2nd Congressional District (represented by Democrat Jared Polis).

The 7th Congressional District (represented by Democrat Ed Perlmutter) would shift west to include the north-metro suburbs in western Adams County (which would thus be split between three different congressional districts) and the west-metro suburbs of northeastern Jefferson County (which would be split between two congressional districts, with the remainder in the 2nd District along with Boulder).

View maps here.

Neither set of maps seems ideal (the GOP map’s perpetuation of the unsightly court-created 7th CD “claw” around the northern metro Denver area remains troublesome); it remains to be seen whether the courts will strictly adhere to the constitutional criteria guiding the boundaries of legislative districts, according to established precedent, or if they’ll be swayed by more “non-neutral” political considerations (such as those enacted under the “Mary-mandering” legislation passed at the conclusion of the 2010 legislative session).

The “Hobbs Hierarchy” should be the decisive criteria for evaluating the constitutionality of Colorado’s Congressional and legislative districts; in priority order:

• Equal population (U.S. Constitution, 14th Amendment, Equal Protection one person/one vote)
• Maintain County boundaries intact unless necessary to achieve equal population (Colorado Constitution Art. V, Section 47(2))
• Maintain municipal boundaries intact unless necessary to achieve equal population (Colorado Constitution Art. V, Section 47(2))
• Districts must be as compact as possible and composed of contiguous election precincts (Colorado Constitution Art. V, Section 47(1))
• Communities of interest - ethnic, economic, cultural, demographic, trade area and geographic - shall be preserved within a single district wherever possible. (Art. V, Section 47(3))

In any event, the case (combined cases, actually) bears careful watching as it plays out in court.

• Read the Republican redistricting lawsuit here.
• Read the Democrat redistricting lawsuit here.

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.

The Denver-based Institute for the Advancement of the American Legal System (IAALS) - “a national, non-partisan organization dedicated to improving the process and culture of the civil justice system” - is hosting a National Conference on Evaluating Appellate Judges on 11-12 August on the campus of the University of Denver (Sturm Hall, 2000 E. Asbury Avenue, Denver CO 80208).

Clear The Bench Colorado Director Matt Arnold is, by special invitation, a featured panelist on the topic of “Evaluating Appellate Judges: Are we doing it right? How can we do it better?”

(Short answers: “NO”, and “view our Evaluations of Judicial Performance page for an idea”).

To the Institute’s credit, they (IAALS) extended the invitation even after being taken to task for their involvement in the “Know Your Judge” campaign which likely violated Colorado campaign finance laws in advocating against Clear The Bench Colorado’s judicial accountability efforts during the state’s 2010 judicial retention elections without ever bothering to register with the Office of Secretary of State, as required by law.  (The case is currently winding its way through the appellate process).

Since being announced last month, the conference has gained attention in the legal profession press, both locally (the Denver Bar Association and Colorado Bar Association featured the event in their respective newsletters, following Law Week Colorado’s coverage) and nationally:

• “Conference will explore how to evaluate judges“, LegalNewsLine.com
• “Top Iowa Judge, Colorado Activist to Address Conference“, ‘Justice At Stake’

For more on the topic (and for “what promises to be an engaging and thought-provoking” discussion), you’ll have to attend the conference, which is open to the public and free of charge (register online).

From the conference website:

This national conference will consider ways to improve existing processes for evaluating the performance of appellate judges and for informing voters about evaluation results. Chief Justice Mark Cady of the Iowa Supreme Court is the featured speaker. We invite you to join us for what promises to be an engaging and thought-provoking event.

For Colorado attorneys and judges, 9 hours of general CLE credits, including 1.2 hours of ethics, may be earned.

Click here for the conference agenda.

Topics include:

• The appellate judge: What makes a good appellate judge? Can we capture these qualities in the evaluation process?
• Evaluating appellate judges: Are we doing it right? How could we do it better?
• Retention elections, special interests, and voters: Perspectives from a justice, a journalist, and a scholar

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.