Know Your Judge

Colorado Recall lawsuit success triggers new rules for historic Colorado Recall elections

The success of a recent constitutional challenge to ballot access and mail-balloting rules formerly governing Colorado’s historic legislative Recall elections has triggered the release of new rules governing the September 10th vote.  After the Colorado Supreme Court rejected an appeal challenging the Denver District Court ruling, the Colorado Secretary of State issued the new rules (“Order 13-003 and Temporary Election Rule 32.7“) following an expedited period of public comment late last Friday.

The rules changes were made necessary because of conflicts between the provisions of the Colorado Constitution (Article XXI, Section 3) and recently-enacted state statute calling for “all-mail-balloting”  (HB13-1303 - somewhat ironically, co-sponsored by the Recall targets, state senators John Morse of Colorado Springs SD-11 and Angela Giron of Pueblo’s SD-3).

Since the constitutional provisions governing ballot access set the deadline for submitting candidate petitions at 15 days before the election date

Candidates for the office may be nominated by petition, as now provided by law, which petition shall be filed in the office in which petitions for nomination to office are required by law to be filed not less than fifteen days before such recall election. (Article XXI, Section 3)

the requirement for “all-mail-ballot” elections set forth in statute was overridden (and negated) by the primacy of the constitutional language, resulting in the order for the Recall vote to be conducted as “polling place elections.”  (Election Rule 32.7)

Other provisions of the “mail-ballot elections” statute (HB13-1303) , widely criticized as facilitating voter fraud (a Colorado Springs Gazette editorial, “Morse-backed election overhaul may lead to rampant voter fraud,” was particularly blunt) were also clarified in the newly-issued election rules.

In particular, the rules clarified some of the registration and residency requirements most generally considered conducive to fraud or strategic vote-shifting (a.k.a. “gypsy voting”):

AN ELECTOR MUST ESTABLISH A RESIDENCE BEFORE REGISTERING TO VOTE OR CHANGING HIS OR HER RESIDENCE IN ACCORDANCE WITH SECTION 1-2-102, C.R.S. AN ELECTOR’S RESIDENCE IS HIS OR HER PRIMARY HOME TO WHICH HE OR SHE, WHENEVER ABSENT, HAS THE PRESENT INTENT OF RETURNING. AN ELECTOR ESTABLISHES A RESIDENCE EITHER BY MAINTAINING A RESIDENCE AS HIS OR HER PRIMARY HOME OR BY PHYSICALLY MOVING TO A NEW RESIDENCE WITH THE INTENT TO MAINTAIN THAT RESIDENCE AS A PRIMARY HOME. INTENT TO MOVE, IN AND OF ITSELF,DOES NOT ESTABLISH RESIDENCE. AND NEITHER A BUSINESS NOR A TEMPORARY HOTEL ROOM IS A VALID RESIDENCE. UPON ESTABLISHING A NEW RESIDENCE THE ELECTOR MUST UPDATE HIS OR HER VOTER REGISTRATION RECORD WITH THE COUNTY CLERK AND RECORDER OF THE COUNTY TO WHICH THE ELECTOR MOVED.

Ironically, even though the bill’s sponsor (Angela Giron) had requested that the Secretary of State address the ‘gypsy voting” issue (at a 5 August meeting of a committee working on enacting the elections law), the clarification of residency requirements was criticized by “Top Democrats in the Colorado House of Representatives on Monday.”

(Perhaps they considered “gypsy voting” as not a bug, but a feature?)

Barring any formal complaint or legal challenge, however, the rules issued by the Colorado Secretary of State will govern the September 10th Colorado Recall elections.

Read more about the Colorado Recall election rules and how they were adopted:

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 appeal to Colorado Recall lawsuit ruling – Recall to go forward as polling place election

The Colorado Supreme Court rejected an appeal by Democrats (attorney Mark Grueskin and Pueblo County Clerk & Recorder Gilbert Ortiz) seeking to overturn Monday’s ruling by Denver District Court Judge Robert McGahey in favor of plaintiffs (led by the Colorado Libertarian Party, LPCO) advancing a constitutional claim to ballot access in Colorado’s historic Recall elections.

The Colorado Supreme Court ruling (“Order of Court“) resulted from a somewhat unusual 3-3 split vote (Chief Justice Bender, joined by Justices Marquez and Coats voted to review and stay [delay] the district court ruling, while Justices Boatright, Eid, and Rice voted to decline review and deny the request for stay; Justice Hobbs did not participate).  Since a majority is required to accept and hear the appeal (grant certiorari), the appeal failed.  From the Order of Court:

IT IS ORDERED that by operation of law pursuant to C.A.R. 35(e), the decision of the district court in this matter is final and is not subject to further appellate review.

IT IS FURTHER ORDERED that the request for stay of proceedings is DENIED.

Thursday’s Colorado Supreme Court ruling is the latest in a series of courtroom losses for the Colorado state senators (John Morse, D-Colorado Springs and Angela Giron, D-Pueblo) targeted for a Recall vote (beginning with their failed attempt to derail the Recall effort by challenging the petition format).

The ruling not only eliminated the last possibility of stopping or delaying the Recall elections (set for September 10th), but also ensured that the elections would be conducted as polling-place elections, instead of the all-mail-ballot procedure (generally held to favor incumbents) resulting from hastily-enacted legislation (the all-mail-ballot statute HB13-1303 ironically co-sponsored by the Recall targets, state senators Giron and Morse) passed AFTER the Recall efforts were already under way.

Meanwhile, Colorado Secretary of State Scott Gessler moved forward with preparing for the Recall elections, releasing draft rules for conducting the Recall votes as polling-place elections following a public hearing late Thursday afternoon (public comment on the rules was due Friday afternoon)

Ultimately, distilled down to its essential elements – a conflict between the clear language of the Constitution versus the requirements of recently-enacted election legislation – an appeal was unlikely to succeed on the merits.  Judge McGahey’s choice, and ruling, was clear and perhaps inevitable:
the Constitution wins.

Read more about the Ruling on the Constitutional Challenge on Ballot Access & Mail Voting:

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.

 

Denver District Judge upholds Constitution over election law statute in Colorado Recall legal challenge

Denver District Court Judge Robert McGahey ruled for the plaintiffs (and more importantly, for the primacy of the state Constitution over poorly-written legislation) in the legal challenge to prematurely restricted ballot access and mandate for “all-mail-in” ballots in Colorado’s historic Recall elections brought by the Colorado Libertarian Party (LPCO).

The lawsuit, filed last week against Colorado Secretary of State Scott Gessler and the county clerks of El Paso and Pueblo counties (in their official capacity only), challenges the denial of petitions to file for candidacy filed after a cutoff date imposed by emergency rule last month in order to comply with the lead-time requirements imposed by the all-mail-ballot statute HB13-1303 (ironically sponsored by one of the Recall targets, state senator Angela Giron of Pueblo’s SD-3).  The lawsuit alleged that the mail-ballot bill’s timelines conflict with mandatory constitutional provisions governing recall elections – specifically, when replacement candidate petitions may be submitted.

The Complaint cited the constitutional provisions of Article XXI, Section 3 as the governing legal framework for candidate petitions, stating “Section 3 of Article XXI provides, in pertinent part, that:”

Candidates for the office may be nominated by petition, as now provided by law, which petition shall be filed in the office in which petitions for nomination to office are required by law to be filed not less than fifteen days before such recall election. (Emphasis supplied.)

Despite numerous legal red herrings and distractions from this core issue introduced at trial by the defendants – including lawyers for the Colorado Secretary of State, El Paso County Clerk & Recorder, Pueblo County Clerk & Recorder, and intervening attorney Mark Grueskin (the Democrat party attorney who also represented embattled state senators John Morse and Angela Giron, the subjects of the Colorado Recall election efforts in their failed challenge against the Recall petitions making the ballot) – Judge McGahey did not allow himself to lose sight of the core constitutional issue at stake.  In his ruling from the bench (meaning, it will not be published as a written ruling), Judge McGahey stated:

At issue in this case is whether the “not less than 15 days” provision in Article XXI of the state Constitution, or [election law] statute setting forth a shorter time period” has primacy.

Judge McGahey noted that both the plaintiffs and the Secretary of State positions agreed that the statute conflicts with the Constitution.

In fact, the Secretary of State formulated Rule 32.6 expressly in order to “harmonize” statute and Constitution; “it is acknowledgment, indeed admission, of dissonance.”

Since Plaintiffs were “seeking rights under an unambiguous provision of the Colorado Constitution” – whatever the merits of the legislation, the process set forth in the election law “fails as law” as it does not comport with the language of the Constitution.

Judge McGahey also ripped the legislature for writing an election law so clearly noncompliant with the state Constitution:

With all due respect to the legislature, it did not consider or ignored the clear language of Article XXI – I find that both sad and, frankly, shocking.

He noted, “the constitutional mandate cannot be ignored because of inertia – or because it’s “archaic” (an argument advanced by multiple attorneys for the defense, alleging that because the Constitution pre-dated the “modern” practices of early voting and mail-in ballots, the constitutional language should be ignored or set aside based on senescence).

Judge McGahey further rejected the argument, advanced by Morse attorney Grueskin, that wording of “not less than” was not equivalent to “at least” (calling it a “distinction without a difference”).

Distilled down to its essential elements – a conflict between the clear language of the Constitution versus the requirements of recently-enacted election legislation – Judge McGahey’s choice, and ruling, was clear and perhaps inevitable:  the Constitution wins.

Read more about the Ruling on the Constitutional Challenge on Ballot Access & Mail Voting:

 

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.

Retrospective: Clear The Bench Colorado Director Matt Arnold panelist at National Conference on Evaluating Appellate Judges

Two years ago today, 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” – hosted a National Conference on Evaluating Appellate Judges (on 11-12 August 2011) at the University of Denver (Sturm Hall, 2000 E. Asbury Avenue, Denver CO 80208).

Clear The Bench Colorado Director Matt Arnold was, 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.

Conference panelists and attendees shared widespread agreement on the need for substantive evaluation of judicial performance (even as opinions differed on the best means for reaching that goal) as a “vital component for ensuring public trust and confidence in the judiciary.”  The IAALS Post-Conference Final Report quoted Clear The Bench Colorado Director Matt Arnold on that topic:

Clear the Bench Colorado Director Matt Arnold echoed this sentiment: “Providing substantive information is not only important for the judges…It is absolutely critical to cementing respect for the process and respect for the rule of law.”

 Recommendations forImproving Appellate Performance Evaluation

A strong majority conference participants agreed that review of written opinions is an essential component of the evaluation process:

As the principle work product of appellate judges, and the primary—if not only—way in which appellate judges communicate the legitimacy of their decisions, conference participants were unanimous in expressing a need for some sort of opinion review, based upon appropriate criteria, as part of the JPE process. (IAALS Post-Conference Final Report)

Despite the widespread concurrence on the need to consider written opinions of appellate judges as the principal source for evaluations, few conference participants had concrete ideas on how to go about evaluating appellate opinions and presenting the results in a format useful to the public – the voters who have the final word.

(The exception, of course, was Clear The Bench Colorado‘s “Evaluating Appellate Judges“)

The conference’s final report, typically, punted:

“No clear direction emerged from the conference as to the approaches that should be taken in evaluating appellate opinions. Accordingly, IAALS established a task force to study this issue in detail and formulate recommendations for states interested in changing an existing, or incorporating a new, system for appellate opinion review as part of the judicial performance evaluation process.”

Several months (almost a year) later, the “task force” issued its report: AN OPINION ON OPINIONS: Report of the IAALS Task Force on Appellate Opinion Review

Unfortunately, the “task force” recommendations simply perpetuated the current model of failing to provide relevant, substantive evaluations of judicial performance against a standard of constitutionality.  Similar to Colorado’s current model of non-evaluative “evaluations” the report recommended training virtually guarantees a whitewash providing little or no information useful in distinguishing “good” judicial performance from bad:

Training for Opinion Reviewers:
Coordinators of performance evaluation programs should provide adequate training to opinion evaluators, to ensure consistency both in conducting the evaluation and in understanding the purpose of the evaluation—i.e., to assess the quality and clarity of the opinion rather than to revisit the particular outcome(s) reached.  (“Opinion on Opinions”, p.3)

Another year later (two years after the conference,  just last month), the IAALS “task force” issued an update : AN INFORMED OPINION: Direct Opinion Review and Appellate JPE

Unfortunately, the updated IAALS report just parroted the legal establishment line about “official” JPE (Judicial Performance Evaluations) providing “substantive” information of any value to voters.

Moreover, the incestuous relationship of IAALS with the state’s “official” (taxpayer-funded) organization, the Colorado Office of Judicial Performance Evaluation (COJPE) – the organization’s executive director, Jane Howell, was one of five members of the “task force” appointed to generate recommendations – undermines the credibility of the “task force” report (which, unsurprisingly, endorses an expanded but otherwise fundamentally unchanged status quo).

There is a clear public need and demand for substantive, independent evaluations of judicial performance – but, just as clearly, the “official” COJPE “rubberstamp reviews” and consistent recommendations to reflexively retain incumbents (99% overall, and a staggering 100% “retain” recommendation record at the appellate court level) is NOT a credible solution.

Clear The Bench Colorado has shown the way towards a method of substantive, informative, well-researched and extensively documented evaluations of judicial performance - a model that could (and perhaps should) be emulated nationwide.

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

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

Ultimately, though – it’s worth the effort.

 

 

 

Colorado Supreme Court to issue ruling on Lobato lawsuit (called the “SuperBowl of school funding litigation”) Tuesday

The Colorado Supreme Court will issue a ruling in the resurrected ‘Lobato v. Colorado‘ school funding lawsuit (previously termed the Super Bowl of school funding litigation) this Tuesday, 28 May 2013 (the court heard oral arguments in the case in early March this year).

At issue: the constitutionality of Colorado’s system of statewide school funding.
At stake: some $4B additional school funding annually (requested by the plaintiffs), along with an additional $17B in spending on capital construction – and, perhaps even more importantly, a looming constitutional crisis regarding separation of powers and the proper role of the courts in setting taxation and educational policy.

Colorado Supreme Court Justices, from left, Nathan Coats, Gregory Hobbs, Michael Bender, Nancy Rice, Allison Eid and Brian Boatright hear school-funding arguments in the Lobato vs. Colorado case filed in 2005. Attorneys from both sides were subjected to pointed questioning from the bench. (RJ Sangosti, The Denver Post)

The Lobato lawsuit was originally filed in 2005; it was rejected at both the trial court level and in the Colorado Court of Appeals before narrowly (4-3) receiving new life in one of the Mullarkey Majority’s final (and most notorious) rulings in October 2009. The Mullarkey Majority overturned lower courts that had held (correctly) that school funding decisions are a matter of policy – not law – and are therefore the job of elected legislators – not appointed judges – to decide.

The 2009 Mullarkey Court ruling sent the case back to the trial court, and two years later (9 December 2011) Denver District Judge Sheila Rappaport issued a 183-page ruling finding for the plaintiffs – which was almost immediately appealed by the state (a bipartisan decision by Governor Hickenlooper and Attorney General Suthers) and joined in the appeal by the State Board of Education).

Although “reading the tea leaves” and predicting an outcome is always fraught with danger, it was clear from oral arguments in March that the justices who had participated in the 2009 Lobato ruling had not since shifted their opinion on the merits of the case.

However, what has changed in the interim (due in no small part to the efforts of Clear The Bench Colorado) is the composition of the state’s highest court – as two of the “unjust justices” who had previously voted to keep the Lobato lawsuit alive (Justice Alex Martinez and former Chief Justice Mary Mullarkey) have since resigned from the court (the former, after having received the lowest “retain” vote percentage of any incumbent Colorado Supreme Court justice in the state’s history – at 59% – and the latter quitting in advance of the retention vote rather than face the voters, in the face of a popular judicial accountability movement).  Mullarkey’s replacement, Justice Monica Marquez, recused herself (appropriately) from this case, having taken part in earlier decisions while representing the state as an assistant attorney general, leaving the balance of power in deciding the case to recently appointed Justice Brian Boatright.  Note that both Justice Boatright and Justice Marquez are subject to a retention vote in 2014.

 At Stake?

As previously mentioned, not only are billions of dollars in additional school funding (estimated by plaintiffs at $4B, annually) at stake – which alone could have “devastating consequences” for the state, according to Governor Hickenlooper – it could precipitate a constitutional crisis.  A court mandate to raise taxes or require more spending would intrude upon the legislature’s authority to set education policy and violate the constitutionally-defined separation of powers between the branches of state government (an issue raised in the dissenting opinion in the 2009 ruling, as Clear The Bench Colorado noted at the time:

The Colorado Constitution directs the General Assembly to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state,”placing discretionary education questions in Colorado squarely and solely within the legislative ambit. (Lobato v. State of Colorado, dissenting opinion. Emphasis added).

A court ruling in favor of the plaintiffs “could alter the relationship between the people of Colorado and their government for decades to come” – since

One of the plaintiffs’ main arguments is that the Taxpayer Bill of Rights (TABOR) must give way to the education clause so that taxes could be raised and revenues increased to meet the needs of the education clause without a vote of the people.

A ruling by the Colorado Supreme Court asserting primacy of the education clause over TABOR and imposing higher taxes or spending could - as noted by both the attorney general’s office and Governor Hickenlooper – plunge the state into a constitutional crisis:

“Let’s say that the Supreme Court agrees with the district court – if that’s the case, then we’ve got the Constitution versus the Supreme Court.”

Listen to audio of Governor Hickenlooper’s statement on the Lobato appeal

Clear The Bench Colorado‘s prediction on Tuesday’s pending ruling:

Given that the justices who voted on the previous appearance of the Lobato case before the Colorado Supreme Court are unlikely to change their positions, the weight of the decision falls firmly on the shoulders of recently appointed Justice Brian Boatright – who will be facing the voters in the 2014 retention elections.  Given the weighty constitutional issues at stake, and the potentially “devastating consequences” for the state (as well as confidence in the state’s judicial system), it is our view that Justice Boatright will do the right thing and join the previous dissenting minority in forming a new majority to overturn Judge Sheila Rappaport’s blatantly biased and political ruling.

Our bet: 4-2 to overturn, upholding the Constitution. 

Bottom Line:

This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (i.e., a policy issue not to be decided by the courts).

If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit has been a fiscal, legal, and political disaster for almost a decade.

Read more about the Lobato school funding case in these articles:

The Attorney General’s office has also compiled a list of key pleadings and court decisions in the Lobato case.

Cases such as Lobato – particularly Rappaport’s biased ruling – highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important – even vital – role to play in our society and system of government.  This is not it.

Colorado Car Tax (er, ‘FASTER’ vehicle registration “fee”) increase on trial this week

The Colorado Car Tax (er, “vehicle registration fee”) increase passed in 2009 (SB108, the so-called “FASTER” bill) is quite possibly THE most unpopular tax increase in Colorado history – made all the more repugnant by how it became law (exploiting a 2008 Colorado Supreme Court ruling which declared that “fees” don’t count as “taxes” to circumvent the constitutional requirement (under Colorado Constitution Article X, Section 20 – Taxpayer’s Bill of Rights, a.k.a. TABOR) to receive prior voter approval for any ‘policy change resulting in net revenue gain’ to the state).

After two years of legislative inaction failed to repeal or roll back the unconstitutional and unpopular tax increase, the ‘FASTER’ Colorado Car Tax was challenged in court as a violation of the Colorado state Constitution (specifically, Colorado Constitution Article X, Section 20 – Taxpayer’s Bill of Rights, TABOR).

That court challenge is on trial this week.

The court declined to grant Plaintiff’s Motion for Summary Judgment which was filed earlier this year, despite documenting the fact that the “”Colorado Bridge Enterprise” established under the FASTER legislation as a “TABOR-exempt business enterprise” (Ed. – see, “Life in the FASTER Lane – updates on the Colorado Car Tax“) fails to meet the constitutional standard to qualify for exemption from TABOR requirements.

Plaintiffs had the first shot at introducing and examining witnesses in the trial, which began Monday and continues into Wednesday (at least) this week.

Penn Pfiffner, in his capacity as Chairman of the TABOR Foundation and plaintiff, sent out an update to people on the TABOR Committee mailing list earlier today:

Five witnesses; two heroes.

Plaintiffs (us) get to go first. One central fiction to keep in mind is the scheme declares that as you drive over certain bridges on the highway system, you are paying tolls to do so; tolls which are collected through a “safety surcharge.” The first two witnesses were Ms. Chris Sammons and Willie Wharton who both explained that they had to register vehicles and therefore pay the bridge surcharge “fee,” although those specifically identified vehicles never cross a single bridge. They did you proud, providing testimony that was calm, convincing, certain, occasionally humorous, and very credible. To me, they are my newest heroes. Both took a day off, drove in from Grand County (think, from beyond the western border of Rocky Mountain National Park), leaving very early to get to Denver on time. Willie had to spend one of his vacation days to do so, and the trial managed to fall during the very busiest time of his professional year. Chris had to put aside the demands of her ranch and small businesses, and miss a school function for one of her two teenagers. These two deserve our special thanks.

Mr. Manley also called as witnesses the chief financial officer of the Colorado Department of Transportation (and “coincidentally” the chief financial officer of the Bridge Enterprise Fund) and the executive director of the Colorado Department of Transportation (and “coincidentally” of the Bridge Enterprise Fund). They had to answer his questions about how the supposedly separate entities operate and coordinate, and supply information about funding issues.

The final of the five witnesses did not conclude his testimony before business wrapped up yesterday, and that is where the trial was to continue from this morning. Paul Wingard was there to prove expert information about the values of the bridges. Any TABOR enterprise is limited to taxpayer subsidy of 10 percent of annual income. The calculated limit in this case is met only because most bridges were transferred from the Department of Transportation to the Bridge Enterprise at a value of zero. Mr. Wingard brings a rare combination of experience and talents to the discussion. He is a professional engineer who has consulted in that profession, is a licensed contractor who built bridges, served as a senior administrator for a road and bridge department of a county government in Florida, and has participated in arm’s-length transfers of tolled bridges and a highway. We found him through Reason Foundation’s Bob Poole. Paul submitted a report about the values of the Colorado bridges being transferred.

More on this important constitutional challenge as the situation develops.

Bottom Line:

Colorado taxpayers have been forced to pay literally $100 Million per year in additional ‘FASTER’ taxes (under the label of “fees”) while simultaneously becoming obligated for over $300 Million in debt – all without a vote of the people, as required under Colorado’s Constitution.

The lawsuit seeks to prevent “continued enforcement and maintenance of the bridge safety surcharge” (i.e. stop the illegal collection of a portion of the Colorado Car Tax) and require that “all “[r]evenue collected, kept, or spent illegally” be refunded” – as mandated under the Colorado Constitution.

Now THAT would be a welcome “tax refund” for all Coloradans.

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 Justice Center a Monument to Imperial, Unaccountable Colorado Judiciary

Colorado Justice Center a Monument to Imperial, Unaccountable Colorado Judiciary was originally published (with minor edits for length) in the Colorado Statesman weekly as a guest commentary (appearing online Monday, 13 May 2013)

Last week’s Colorado Statesman was host to a pair of guest commentary articles extolling the virtues of the newly-opened Colorado Justice Center.

Admittedly, it is an impressive edifice – as U.S. Supreme Court Justice Sotomayor noted, with an “architectural grandeur” imposing a feeling of being “humbled before the majesty of the law.”


(Photo originally published in Denver Post media gallery)

The irony of such an imposing, monumental structure being named after former Colorado governor Ralph Carr – a “principled politician” with an attitude of humble service to the citizens of our state –
is striking.

Other media reported on the extravagant costs of the sumptuously-appointed $288M judicial edifice – with “$1,300 wood serving carts with silver trays sitting in Supreme Court Justice Michael Bender’s reception room” along with $5,000 desks, $4800 leather sofas, $2375 credenzas with “antique brass hardware” and a host of other “elegant” luxury appointments in the judges’ chambers.

So just where does all of this money to fund the massive new “judicial complex” came from?
Ultimately, of course, from your pockets – but the details are interesting.

Part of the funding (authorized during the 2008 legislative session under SB08-206 State Justice Center) came from an unprecedented expansion in use of “Certificates of Participation” (in the words of a state legislator, “debt pretending not to be debt”).  In fact, the legislative language specifies that the debt is simply re-defined as “not-debt” by declaring

the obligations shall not be deemed or construed as creating an indebtedness of the state within the meaning of any provision of the state constitution or the laws of the state of Colorado concerning or limiting the creation of indebtedness by the state of Colorado and shall not constitute a multiple fiscal-year direct or indirect debt or other financial obligation of the state within the meaning of section 20 (4) of article X of the state constitution. [SB08-206, Section 2, (2) (b), page 5]

“Crazy on Court Fees”

However, by far the greatest proportion of funding for the new judicial complex comes in the form of increasing the cost of access to justice by Colorado citizens via substantial increases in court fees (including creation of an entirely new category – the “Justice Center Fund” fee).

Want to file a case in civil court, defend yourself against a claim, change your name, or request a civil protection order?  It’ll cost you an extra $37 for the “Justice Center Fund” – per filing.  Small claims court filings?  An extra $11 for the “Justice Center Fund”, thank you.

That’s just in your local county court – which may be hundreds of miles away from the judicial complex.  Need access to justice at the District Court level or higher?  Be prepared to cough up even more in “fees” for the “Justice Center Fund” – most actions in District Court or the Court of Appeals now cost an additional $68 for the fund, some as much as another $136 or even $204 each, at any of the 22 District Courts across Colorado, still miles from the Colorado Judicial Complex.

Even “domestic relations” cases are now more expensive thanks to the new  fees – legal separation, annulment, divorce will each cost another $26; child custody registration or child support order, another $15 fee.  Death in the family?  That’ll cost extra, too – another $15 fee for probate filings, estate fees, conservatorship, etc.  Anywhere in the state – all of Colorado now enjoys the “privilege” of contributing to this marvelous new edifice.

Even an “insufficient funds” return check fee for court payments (already $40, which is double what any private entity is allowed to charge) gets another $10 fee tacked on for the ”Justice Center Fund” (truly, adding insult to injury).

Need to fight a case up to a higher court?  Pretty much ANY actions at the Colorado Court of Appeals now costs an additional $68 fee for that ”Justice Center Fund.”  Water Court?  Same story – almost every activity listed incurs an additional $68 for the ”Justice Center Fund” (some activities, such as applying for Change of Water Right or Plan for Augmentation, cost double – $136).

Ironically, the ONLY court where you WON’T have to pay an extra “Justice Center Fund” fee to pursue justice?  You guessed it – the Colorado Supreme Court, whose “home” is being financed by all of these “fees” in the first place.

(View the full list of Colorado Court Fees – featuring the ”Justice Center Fund” fee)

It’s been said that “if you’re not outraged, you’re not paying attention.”  Constitutionally, “fees” are only supposed to be charged to offset the cost of providing or administering a voluntarily accessed good or service.  Since most people paying the “fees” receive no direct benefit from the new “Justice Center” those “fees” are really more of a tax.  Taxes, constitutionally, cannot be increased without a vote of the people.  Perhaps that’s why the Colorado Supreme Court’s majority decision in the 2008 Barber v. Ritter “Fees aren’t really taxes” case – expanding the use of “fees” by government entities across the state as a means of evading constitutional protections against tax increases – carries the taint of self-interest.

Of course, the entity which reviews the constitutionality of the “fees” and “certificates of participation” used to finance the new judicial complex is that branch of government receiving the greatest benefit: the Colorado Supreme Court, at the pinnacle of the state judicial system, has the final word.

The Colorado Justice Center, far from being a tribute to transparency or honoring the memory of the man after whom it is named, stands as a monument to an imperial, unaccountable state judiciary.

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

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

Ultimately, though – it’s worth the effort.

Colorado Supreme Court to hear 1st Amendment challenge to state’s campaign finance laws

The Colorado Supreme Court hears arguments tomorrow (Weds, 8 May 2013) in a 1st Amendment challenge to the state’s campaign finance laws (pursuant to a request to clarify the “scope & meaning” of Colorado campaign finance laws in an order issued by a Federal judge late last year).  According to a statement issued last Fall by the Center for Competitive Politics,

Senior Judge John L. Kane of the United States Court for the District of Colorado asked the state Supreme Court to “provide clear guidance… as to the scope and meaning” of provisions that have been challenged under the First Amendment to the US Constitution.

The request for clarification to the Colorado Supreme Court was issued due to a lawsuit challenging the state’s campaign finance laws as an unconstitutional violation of free speech rights under the First Amendment.  The case, Coalition for Secular Government v. Gessler, No. 12-cv-1708, was filed in Federal court earlier in 2012.

The legal challenge raises important questions about political free speech, as summarized in the article, “Colorado’s Opportunity to Protect First Amendment Rights” (earlier published as a guest commentary on the Clear The Bench Colorado judicial accountability organization’s website) and as listed below.

Questions certified by the Federal judge (asked of the Colorado Supreme Court for clarification) include:

  •  Does the Colorado Constitution treat money spent on a policy paper, including one that suggests how the reader should vote on a ballot initiative, as the equivalent of money spent on political ads?
  • Does the state constitution entitle policy papers distributed over the internet to be treated in the same way as newspaper and magazine editorials for purposes of campaign finance law?
  • In light of a federal decision declaring certain groups too small to be regulated by the state of Colorado, what is the monetary trigger for an issue committee under the state constitution? Is it the roughly-$1,000 mentioned in the federal opinion? The $3,500 contemplated by CSG? The $200 mentioned in the constitution itself? Or another number altogether?

Colorado’s campaign finance laws are frequently used by well-funded special-interest groups as a tool to suppress political speech by grassroots organizations – facilitated by the odd fact that enforcement of the law is NOT prosecuted by the state, but rather by the individual (or organization) filing the complaint (effectively, it takes lawyers, time, and money to hold violators accountable for breaking the law).

Attempts at reforming Colorado’s campaign finance laws are invariably met with resistance from special-interest groups, many of whom are not subject to the same reporting and disclosure requirements that they support imposing on others.

Fortunately, some have fought for the preservation of political free speech, and have won some hard-fought victories in court.  One such recent court case originating in Colorado, Sampson v. Buescher, resulted in a Federal court (10th Circuit) holding certain sections of Colorado Constitution Article XXVIII in violation of the United States Constitution. Specifically, provisions of Article XXVIII (the $200 trigger on reporting contributions) were held to unduly burden the rights of free association and free speech protected under the 1st Amendment, among our most cherished rights.

The Center for Competitive Politics statement sums it up nicely:

“For years, organizations in Colorado have been unsure how to comply with Colorado’s campaign finance rules, or have been subject to politically-motivated complaints for making minor errors,” CCP Legal Director Allen Dickerson said. “Some choose not to speak at all in the face of this situation. The Colorado Supreme Court now has the option of bringing a measure of predictability to some of the state constitution’s more difficult provisions.”

Our View:

Clarification of the confusing cloud of campaign finance laws in Colorado that challenge the Constitution, chill free speech, and curtail civic participation is not only welcome – it’s long overdue.

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 Ethics Watch finally pays Clear The Bench Colorado for frivolous, groundless, and vexatious complaint

The wheels of justice grind slooooooooowly…

After almost three years (and after exhaustion of all appeals) since first winning the judgment against “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) for CEW’s “frivolous, groundless, and vexatious” campaign finance complaint against Clear The Bench Colorado (back in July 2010), as spelled out by court order in December 2010, CEW has finally paid what they have owed us for years.

Clear The Bench Colorado‘s victory against CEW, winning an award of attorney’s fees, is only the second time that CEW (with a near decade-long history of conducting harassing legal attacks) has been forced to pay.  It is rare (indeed, almost unheard of – though not totally unprecedented) for attorney’s fees to be awarded to the defendant in this type of case, as Face The State had pointed out in an earlier article (“Judicial-reform group lashes back at ‘frivolous, groundless’ complaint“):

Attorneys fees are awarded sparingly by Colorado judges, largely because those requesting the sanction must prove opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.

The award indicates that the judge not only thought that CEW’s case (or “complaint”) was bad – he thought it was SO bad that he took the unusual step of slapping CEW with the bill (which, as noted, runs into the ‘tens of thousands’).

The ’Order Awarding Attorney Fees and Costs‘ confirmed the complete lack of legal merit in CEW’s original complaint against Clear The Bench Colorado:

Because CEW’s claim was not supported by the undisputed evidence or by the plain language of the law, the ALJ found CEW’s complaint substantially groundless and frivolous.  The ALJ therefore granted CTBC’s request for attorney fees and costs…

Confirmation of the award of legal fees and costs  - and more importantly, confirmation of the “frivolous, groundless, and vexatious” nature of CEW’s original complaint – comes as both victory and vindication for Clear The Bench Colorado.  As noted previously by CTBC and knowledgeable observers of the legal and political scenes, the award of legal fees to the defendant is an extreme rarity.

CEW’s attacks against Clear The Bench Colorado fit an ongoing pattern of politically motivated “ethics” complaints designed to distract, disorient, and sling mud in the (vain) hope that something might stick.  Ultimately, they don’t care if they win or lose the case (their lopsided loss-win ratio bears this out), since their priorities are (1) smear, (2) frame the media debate and gain attention, (3) divert resources and attention, (4) intimidate, and (5) maybe (if they get lucky) occasionally win a case.  As many publications noted at the time, CEW’s attack was just another cheap political stunt.  Even the Secretary of State’s office called CEW Director Toro’s statements “disingenuous” (which is a polite way of saying, ‘lying through your teeth’).

Groups like CEW – with the massive amounts of funding they receive from their parent organization (Washington, DC based CREW) and from local leftist funders Tim Gill, Pat Stryker, Jared Polis, and Rutt Bridges right here in Colorado, can continue to draw upon deep reservoirs of cash in support of attacks and legal harassment of their ideological foes – abusing the legal system as a political weapon.

Unless and until meaningful sanctions against such abuse of the legal system as a political weapon are implemented and consistently enforced, citizens engaging in civic activity (along with political campaigns at all levels) can expect to continue to be subject to these kinds of harassing attacks.

Clear The Bench Colorado‘s victory against the unethical ‘Colorado Ethics Watch’ – holding them accountable for their abuse of the legal system – is one small step in the direction of restoring some measure of sanity (and accountability) to the courts.

Once in a while – the Underdog wins.

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

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

Ultimately, though – it’s worth the effort.

Colorado Supreme Court overturns Public Utilities Commission ban on new taxi licenses (denying Mile High Cab market entry)

The Colorado Supreme Court issued a unanimous ruling in favor of a company (Mile High Cab) earlier denied entry into the taxi market by the state’s Public Utilities Commission.

As a Denver Post article (“Mile High Cab withs [sic] Supreme Court case against public utilities“) notes:

The state’s Public Utilities Commission in July 2010 refused to grant Mile High’s request for 150 cab licenses based on the commission’s belief that the city did not need more taxis. Monday’s Supreme Court decision reverses a 2011 Denver District Court ruling that upheld the PUC’s license denial.

(Interestingly, the Public Utilities Commission shortly thereafter granted existing taxicab companies an additional 300 licenses).

The Colorado Supreme Court’s ruling overturned both an Administrative Law Judge (ALJ) and Denver District Court ruling upholding the PUC decision.

“The people of Denver don’t need a government agency deciding whether they have too many transportation options any more than they need a government agency deciding whether the city has too many restaurants or shoe stores,” said Robert McNamara, a senior attorney with the Institute for Justice, which represented Mile High, in a statement.

Although the Colorado Supreme Court’s ruling on this case is certainly both welcome and correct, one cautions against reading too much into the outcome.

The case was (albeit correctly) decided on a fairly narrow reading of the applicable statute (although, one might argue, that is precisely what one should expect from a court of law – vs. a court of opinion or judicial activism).  (See: What makes a good judge?)

The key finding in the case:

“Whatever might be the precise limits and applicability of the doctrine of regulated competition, as well as the precise meanings of and relationships among the terms “public interest,” “public need,” and “public convenience and necessity,” there is no dispute that once an applicant for service in Denver had proved its fitness, the Commission was statutorily obligated to issue a certificate unless those opposing the application were able to prove both that the public convenience and necessity did not require its issuance and that issuance of the certificate would be detrimental to the public interest.”

A rare win for both common sense and a clear interpretation and application of the law – as written.

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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