Know Your Judge

Colorado Ballot Initiatives to “Clean Up The Courts?”

Colorado courts have been touted by the usual cheerleaders – the Colorado Bar Association (CBA), the Denver-based Institute for the Advancement of the American Legal System (IAALS), and of course in the Colorado Supreme Court Chief Justice’s “State of the Judiciary” speeches before the state legislature – as a shining example of juridical excellence and an “ideal” Colorado judiciary.

The truth – the actual “state of the Colorado judiciary” – falls a bit short of these lofty pronouncements.

In fact, some national organizations have gone so far as to label Colorado a “judicial hellhole.”

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Although the Colorado judiciary has certainly seen some improvement since “achieving” the “judicial hellhole” status in 2010/2011 (most notably, the departure of former Chief Justice Mary Mullarkey, who quit the bench in 2010 rather than face the votersJustice Alex Martinez, who left after receiving the lowest retention vote approval for any incumbent supreme court justice in state history, and most recently Chief Justice Michael Bender, who left upon reaching mandatory retirement age), our court system has retained several systemic deficiencies (starting with a lack of transparency in the so-called “merit selection” process for nominating and appointing judges, through the completely rubber-stamp nature of the “official” judicial performance “review” process, and the notoriously toothless “judicial discipline commission” responsible for sanctioning judicial misconduct).

A pair of ballot initiatives are seeking to address the last two of these systemic deficiencies on the November 2014 ballot.

The most recently filed and approved initiative (based on clearing the title board), listed as Proposed Initiative #94 and called by the initiative proponent the “Honest Judge Amendment“, seeks to transfer oversight and responsibility for investigating and sanctioning judicial misconduct from the current “Judicial Discipline Commission” – which operates under guidelines set by the Colorado Supreme Court, a classic “foxes watching the henhouse” situation – to an Independent Ethics Commission (which would at least have the benefit of not being “of the lawyers & judges, for the lawyers & judges”).

The initiative proponent, an issue committee named “Clean Up The Courts“, lists the following arguments in favor of the initiative:

Why this amendment is needed:

  • The constitution currently states judges may be disciplined for any violation of the Code of Judicial Conduct.
  • But the Supreme Court currently issues judicial discipline rules.
  • There is a conflict of interest in judges issuing rules about judicial discipline.
  • The Supreme Court acted on that conflict and issued an unconstitutional rule that means judges cannot be disciplined for anything that can be appealed.
  • The rule eliminated the “any violation” standard in the constitution.
  • Over the last 10 years, 89.5% of complaints against judges have been dismissed due to the rule.
  • There has not been a published case of judicial discipline since 1986.
  • You are not protected by the Code of Judicial Conduct when judges issue rulings.
  • The Supreme Court is completely above the law.
  • The only way out of this unlawful and unethical situation is to amend the constitution so there is no longer a conflict of interest in judicial discipline.

How this amendment solves the problem:

  • The constitutional “any violation” standard is revived.
  • Discipline is transferred to the Independent Ethics Commission, so there is no longer a conflict of interest in judicial discipline.
  • The constitution is amended to specifically state that if a judge violates the Code of Judicial Conduct in an appealable order, the judge can be disciplined.
  • If there is a finding of probable cause, discipline proceedings are public.
  • Judges do a better job because they know they will be held accountable.
  • You are protected from judicial misconduct.
  • You can have more confidence in judges.

In numeric order, the first of these initiatives, Proposed Initiative #79, seeks to increase the threshold of votes required for a judge to stay in office in Colorado’s uncontested judicial retention elections from the current simple majority (50% +1 of total votes cast, including undervotes) to a two-thirds majority:

Shall there be an amendment to the Colorado constitution increasing the number of “Yes” votes required for a justice or judge to be retained in office from a simple majority to a two-thirds majority in the November 4, 2014, general election, and in every election thereafter?

The initiative proponent, an issue committee named “Clean Up The Courts“, lists the following arguments in favor of the initiative:

Why this amendment is needed:

  • The unethical situation related above has gone unnoticed for almost 30 years because people don’t pay enough attention to judicial retention elections.
  • Judges run in uncontested retention elections.
  • Judges currently only have to get a majority vote even though there is no opposition.
  • Judges easily get retained due to a lack of information.
  • Judges easily get retained due to voter apathy.
  • A majority vote is what is used when we want a politician to be partial or biased.
  • A majority vote is what is used if we want a certain policy adopted.
  • We want judges to be the exact opposite of partial or biased.
  • We want judges to be fair and impartial.
  • So a different measurement should be used.

How this amendment solves the problem:

  • Requiring a two-thirds majority vote brings greater scrutiny to judges.
  • A flawed process is corrected without turning to contested political elections.
  • Judges approved by two-thirds of voters are more likely to be fair and impartial.
  • You will have more confidence in judges approved by a two-thirds majority.
  • You have the right to expect quality judges who receive a two-thirds majority vote.
  • Judges will be more accountable and more likely to follow the rule of law.
  • Judges will respect you and the law.
  • You deserve to have this much confidence in the judiciary.

It’s noteworthy that the opposition to these initiatives through the title-setting process has come from the Colorado Bar Association, previously engaged in unethical actions opposing judicial reform and accountability efforts through illegal funding of campaigns supporting incumbent judges in the 2010 election cycle.  The CBA hired attorney Marc Grueskin, also active behind the scenes in opposing judicial accountability efforts, to challenge the initiatives before the title board (unsuccessfully, as it turns out).

As noted in a press release from the Clean Up The Courts organization, hiring Grueskin’s firm to oppose the initiatives is itself of dubious ethicality – since the law firm “is managed by a current member of the State Commission on Judicial Performance” – Heather Hanneman.

“The conflict of interest in Heather Hanneman’s actions is glaring,” said Chris Forsyth, an attorney who has practiced for 20 years and who is a proponent of the initiatives.

Hanneman is on the state performance commission which is charged with evaluating the performance of statewide judges and recommending to the public whether the judges should be retained. The judges at issue include Court of Appeals judges and Supreme Court justices.

“All appearances are that Hanneman’s firm is assisting those judges with covering up judicial misconduct and keeping the truth from the public. The public has the right to expect her to disclose judicial misconduct; not cover it up,” Forsyth said.

The Colorado Bar Association’s opposition to the initiatives highlights the far-too-cozy relationship of the bar association with the judiciary, and indicates a potentially corrupt relationship among the legal establishment that is not apparent to the average voter – and, perhaps, underscores the need for precisely the types of reform sought by these initiatives and other efforts.

The initiatives, irrespective of merit, face an uphill climb before even being placed before the voters; under the Laws governing the initiative process in Colorado, 86105 valid signatures are needed to qualify for the ballot, which is a significant (although not insurmountable) number for a grassroots initiative lacking major special-interest funding.  (At this time, the  ”Clean Up The Courts” organization is relying on volunteer petition circulators – solicited on the organization’s “Pitch In!” page)

The ”Clean Up The Courts” organization is not affiliated with Clear The Bench Colorado; however,

 Our View: Citizen participation is vital in restoring Accountability and Transparency to Colorado Courts

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

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 unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance. However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.

Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

Clear The Bench Colorado marks 5th anniversary as CO’s premier judicial accountability organization, may expand

“Time flies when you’re having fun…”

Hard to believe, but it has already (only?) been 5 years since the founding of our state’s only effective judicial accountability organization, Clear The Bench Colorado.

Starting as nothing more than an idea – knowing that Colorado judges are accountable to the people, that Colorado voters deserve more information on our state’s powerful 3rd branch of government - Clear The Bench Colorado has effected a much-needed (and long-overdue) awakening about the role and importance of Colorado’s judiciary.

Clear The Bench Colorado played a role in “encouraging” the self-removal of two of the worst state supreme court justices in Colorado history (Chief Justice Mary Mullarkey quit the bench in 2010 rather than face the voters, and Justice Alex Martinez quit the bench after receiving the lowest voter approval of any supreme court justice in state history some time after the 2010 elections) – resulting in a much-improved composition of our state’s highest court.

In fact, over the last couple of years, court challenges have achieved the ONLY significant victories for freedom in Colorado – since CTBC’s founding, overturning the Amazon Tax, overturning the CU Gun Banupholding the Douglas County school choice programoverturning unconstitutional legislation restricting petition-gathering for ballot initiatives, and (most strikingly) overturning a lower court to uphold the constitutionality of Colorado’s school funding system (the Lobato  statewide school funding case, called the “SuperBowl of school funding litigation”) saving the state’s taxpayers over $1 BILLION annually (as predicted by CTBC’s analysis of the case) – a tremendously impactful win credited in large part to Clear The Bench Colorado‘s efforts to increase judicial accountability.

Clear The Bench Colorado helped Colorado voters to “Know Your Judge” with substantive evaluations of judicial performance prior to the November 2012 and 2010 elections – the ONLY source of reliable, substantive information on judges appearing on the ballot.

Statewide legislative elections in 2012 were significantly impacted (if not effectively pre-determined outright) by results of the Colorado Supreme Court’s December 2011 rulings on the reapportionment of state legislative districts – leading to lopsided majorities for Democrats in both chambers of the state legislature, despite actually receiving fewer votes overall (45% to 48.5% of total votes/candidates)

Clear The Bench Colorado‘s successes have been noted not only in Colorado, but in other states as well; on our 5th anniversary, CTBC is finalizing arrangements to expand the brand and reach of judicial accountability to other states sharing the “judicial retention vote” model, as well as expanding our reviews of judicial performance to the county & district court level here at home.

BOTTOM LINE:

Few, if any, grassroots organizations have had as much impact on the political and civic arena as has Clear The Bench Colorado over the last five years.

Will Clear The Bench Colorado continue to help reform Colorado’s judiciary by promoting transparency and accountability, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts, over the next few years?

Will Colorado be able to count on CTBC’s useful and substantive evaluations of judicial performance in coming elections?

The choice is yours, Colorado.

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.

Contested School Board Election “Win” by Disqualified Candidate Argued Before Colorado Supreme Court

Challengers and supporters of a lower court order awarding a “win” to a disqualified candidate for School Board in Colorado’s Adams-12 school district argued their respective cases last week before the Colorado Supreme Court.

Candidate Amy Speers was discovered to be ineligible only days before election day (although many ballots had already been cast in the mail-ballot-only election) because she did not reside in the district. Although declared ineligible, Ms. Speers declined to officially withdraw from the race, leading to an Election-day ruling by the Office of Secretary of State that votes for the ineligible candidate should not be counted.  Supporters of the disqualified candidate filed suit a week after the election, claiming that votes for Speers should be counted (although she was ineligible and cannot take office) in order to trigger a vacancy appointment.  A lower court agreed, and awarded the “win” to the disqualified candidate, triggering the appeal and review by the Colorado Supreme Court.

Much of the argument presented before the court revolved around jurisdictional and procedural technicalities, including the appropriate type and statutory grounds for filing a challenge.  The authority of the Secretary of State to order an emergency rule to resolve the controversy was also at issue. Other points were made, however, that have bearing on future elections in more general terms.

Key Arguments:

  • Can Ineligible Candidates be “Duly Elected” to Public Office?

Attorneys for the state argued that “a person cannot be a “duly nominated” candidate or a “duly elected” officer if the individual does not meet the qualifications for office. ”
This argument is important not only because it would eliminate the election controversy “ab initio” – since
“a run for office by an unqualified individual is void rather than voidable. It should be considered “a nullity, invalid ab initio, or from the beginning, for any purpose.” Delsas v. Centex Home Equity Co., 186 P.3d 141, 144 (Colo. App. 2008).  (SOS Appeal for Review at 28)
It is also important because it would “prevent use of sham candidates” – popular figures ineligible to actually run for office serving as stand-in vote-getters.

  • Can a vacancy committee appoint a successor to someone never eligible or elected to take office?

Plaintiffs in the lawsuit seeking to count votes cast for the ineligible candidate (Speers) did not intend that she actually take office, but that she count as “duly elected” for the purpose of allowing the incumbent school board (not the district’s voters) to select a replacement via vacancy appointment.  However, the applicable statute (C.R.S. 22-31-129) contemplates vacancy replacements for officersnot candidates.  Since unelected candidates are not officers, they cannot have a “successor” appointed to an office they never held.

  •  Can a candidate be removed from the ballot for reasons other than death or withdrawal?

Supporters of the disqualified candidate based their legal argument on statutory language addressing the correction of errors in ballots (C.R.S. 1-5-412) which lists only death or withdrawal as grounds for not counting votes:

if the ballots are already printed, the votes cast for the withdrawn or deceased candidate are invalid and shall not be counted.

This argument generated the most questions from the bench, and appeared to trouble several of the justices, particularly in light of the fact that the disqualified candidate was notified of ineligibility and requested to withdraw, but refused to do so.  One justice questioned what might happen were a dog to get certified on the ballot, then neither die nor withdraw its (canine?) candidacy; another noted that an unqualified candidate could thus be placed in position to determine the outcome of an election – remaining on the ballot simply by refusing to withdraw.  Attorneys argued back and forth about whether there was a “gap” in the law that necessitated the Secretary of State issuing an emergency rule, or whether “death or withdrawal” was exhaustive and exclusive.

 Quo Vadis?

The Colorado Supreme Court is likely to issue a decision within the month; based on arguments presented and questions asked at the hearing, it appears likely that neither side will come away entirely satisfied; a split decision is likely, both in terms of votes and resolution of issues.

In any event, even a definitive ruling by the court may not produce a final outcome in the school board election, since a separate election contest has been filed and will move forward once this court rules (the election contest is only partially contingent on the Colorado Supreme Court ruling in this case).

Welcome to the age of court-contested elections – at ALL levels.

Read more about the Adams-12 School Board Candidate Eligibility case:

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 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.

 

Friday Funnies: …and a Leftist Judiciary! (reprise, once again)

Welcome to the 2013 Holiday edition of the Clear The Bench Colorado Friday Funnies!

Another tumultuous year has come and gone for the Colorado judiciary – and although Colorado Citizens and taxpayers have again been hammered by the gavels of Colorado judges pounding their personal preferences over the will of the people – and the rule of law – this last year has also seen some striking victories in the Colorado Courts.

After the Colorado courts decided the boundaries for Congressional districts (once the state senate reprised the 2000 playbook of abdicating responsibility to send it to the courts) and state legislative districts (when the Colorado Supreme Court approved the legislative maps drawn by the Colorado Reapportionment Commission in 2011), Colorado’s electoral destiny in 2012 was almost a foregone conclusion.

Colorado Courts (specifically, Denver District Court Judge Michael Martinez) also rejected a constitutional challenge to the ‘FASTER’ Colorado Car Tax (on the basis of violations of Article X, Section 20 – Taxpayer’s Bill of Rights, TABOR) although that ruling is being appealed (and Judge Martinez is among the most-overturned judges on the Denver District Court).

Ironically, the Colorado Supreme Court and Court of Appeals started 2013 by moving into the palatial new ‘Colorado Judicial Center’ (at significant taxpayer expense and incurring massive new “non-debt” debt) in violation of the TABOR requirement to seek voter approval before incurring debt – a monument to an imperial, unaccountable state judiciary.

On the positive side, 2013 saw some tremendously impactful rulings in Colorado courts:

All of these issues were comprehensively covered by Clear The Bench Colorado over the last year – while the “mass media” and most of the state’s “news” organizations gave them short shrift.

Three years ago, the outcomes of those cases would have been different.  Three years ago, thanks to the help of thousands of Colorado voters, Clear The Bench Colorado sent a loud and clear message to the judiciary: rule based on the constitution and the law, not political whims.  That’s all we want.  Oh, and BTW: we’re watching.

On a lighter note: 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 finally (this last April) paid what they have owed us for years.  Not that we laughed our way to the bank – all of the money went to pay our lawyers – but the last laugh was on CEW.  The following video (even if focused on the national level) also elicits a hearty laugh:

…and a Leftist Judiciary!

While still afflicted with the (black-robed) ghosts of Christmas past in our Christmas present, we can still act to save our Christmas future. Continue to support Clear The Bench Colorado with your comments (Sound Off!) and contributions.

Freedom isn’t free – nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

Merry Christmas from Clear The Bench Colorado!

Merry Christmas from Clear The Bench Colorado!

In the spirit of the season today, no commentary or analysis on Colorado Supreme Court rulings that have taken money out of your pocketeroded your constitutional rights, or usurped the powers of other branches of government.

Not even any reminiscing on the courtroom victories Colorado citizens have achieved over the past year (thanks, in large part, to the ongoing efforts of Clear The Bench Colorado – see, “Activist saves Colorado from massive tax hike) such as the court ruling upholding the Douglas County School Choice program, another court ruling overturning the Lobato school funding lawsuit, and the court battles key in the Colorado Recall Election victories - victories that would NOT have been possible a mere few years ago, before the advent of Clear The Bench Colorado.

Just a simple message and best wishes for a Merry Christmas and Happy New Year!

Enjoy your Christmas present, but please act to save your Christmas future -

Continue to support Clear The Bench Colorado with comments (Sound Off!) and 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 issues written opinion on challenge to constitutionality of Recall voting rules

The Colorado Supreme Court issued a written opinion expounding on the court’s earlier bench ruling on In re Interrogatory Propounded by Governor Hickenlooper, 13-SA-214 (when the court struck down Colorado’s constitutional requirement that a voter who fails to vote on whether to recall an official may not vote on who should fill the vacancy as a violation of the U.S. Constitution’s 1st & 14th Amendments)

The ruling was decided on a 5-2 vote, with Justices Coats and Marquez dissenting (a somewhat unusual pairing).

The Court’s Order (issued on 27 August 2013) was short and to the point:

The provision in Article XXI, Section 3, of the Constitution of the State of Colorado stating that “no vote cast shall be counted for any candidate for such office, unless the voter also voted for or against the recall of such person sought to be recalled from said office,” conflicts with the First and Fourteenth Amendments to the United States Constitution. We therefore answer the Interrogatory in the negative. [Emphasis added] (Order 13SA214, p.2)

Analysis:

At issue was the constitutional requirement (Article XXI Section 3) that “an elector who wishes to vote for a successor candidate in a recall election to also cast a ballot on the recall issue.”

The court ruled that requiring a vote on the recall question in order to vote on successor candidates amounted to an unconstitutional precondition (“prior participation requirement”) on the exercise of free speech (as expressed via voting) – in essence, “unconstitutionally compelling voters to speak on the recall question.” (Opinion at 9)

 The prior participation requirement in Colorado’s Constitution thus improperly burdens voters’ associational rights by compelling speech and therefore violates the First Amendment to the United States Constitution.  (Opinion at 11)

The court also held that the prior participation requirement “also effectuates a severe restriction on citizens’ fundamental right to vote”  (Opinion at 11) and “unconstitutionally compels voters to express a view on the question of whether to recall an elected official.” (Opinion at 12)

 Given that “any restrictions on [the right to vote] strike at the heart of representative government,” Reynolds, 377 U.S. at 555, the prior participation requirement at issue conflicts with voters’ fundamental right to vote under the Fourteenth Amendment. (Opinion at 13)

Dissenting Opinion

The dissent by Justice Marquez (joined by Justice Coats) raises some interesting issues, hinging on both the propriety of the court taking up the interrogatory in order to issue an advisory ruling, and on the interpretation of the federal constitutional language in this case.

Justice Marquez cautions against the exercise of judicial review to address a hypothetical situation -

(“Axiomatic to the exercise of judicial authority is the principle that a court should not decide a constitutional issue unless . . . the necessity for such a decision is clear and inescapable.”).  (Dissent at 8)

Justice Marquez also noted that overturning legislative or constitutional provisions “requires a showing of unconstitutionality beyond a reasonable doubt” and notes that

the U.S. Supreme Court has never addressed, let alone resolved, the constitutionality of a conditional vote requirement such as Colorado’s. We have no binding precedent on point that compels the conclusion that the language in article XXI, section 3 is unconstitutional beyond a reasonable doubt. (Dissent at 11)

Justice Marquez noted that the history of the adoption of Colorado’s Recall provision showed the intent of combining the question of Recall and successor candidate selection:

Here, the voters of Colorado decided, through citizen initiative, to establish a recall process that combines the recall question and the choice of a successor into a single election. In so doing, the citizenry decided that an incumbent shall be recalled only where a majority of those voting favor removal of the incumbent. Id. Accordingly, votes for a successor are tallied only where the incumbent is actually recalled. In this sense, the choice of a successor is derivative of the recall issue.  Thus, I disagree that these issues are in fact “wholly distinct,” maj. op. ¶ 26, at least where, as here, the voters of Colorado decided to combine them into a single election process. By requiring a voter to vote on the recall question as a condition to voting for a successor, this provision ensures that the citizens seeking to elect a particular successor are the same group of citizens who decided, by majority vote, to have the incumbent removed. (Dissent at 16-17; emphasis added)

Bottom Line:

The Colorado Supreme Court’s ruling did not substantially alter the conduct or timeline for the Recalls in September, nor will future Recall elections be substantially affected by the ruling, since (as actual election results have borne out) the number of votes to which the hypothetical raised in the governor’s Interrogatory applied was vanishingly small.  However, as Justice Marquez noted in her dissent, the court’s ruling may have set a precedent for expansion of the court’s power to preemptively decide future legal hypotheticals and “write out” constitutional language without benefit of trial.

Read more about the Colorado Recall Voting Rules case:

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 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 seeks dismissal of anti-TABOR lawsuit in 10th Circuit Court of Appeals

Colorado state attorneys asked a 3-judge panel of the 10th Circuit Court of Appeals in oral arguments Monday to dismiss the frivolous, groundless, and vexatious politically-motivated lawsuit attempting to overturn a Colorado Constitutional Amendment (the Taxpayer’s Bill of Rights, known as “TABOR”) filed in Federal court in May 2011 – (which, after several rounds of motions and counter-motions, was allowed to proceed to trial in July 2012 (despite clear constitutional precedent disallowing challenges on the basis of the “Guarantee Clause”).

In arguments Monday, state Solicitor General Daniel Domenico told a three-judge panel of the 10th U.S. Circuit Court of Appeals that lawmakers still have the ability to ask voters to approve a tax increase if they think one is needed under the Taxpayer’s Bill of Rights.

“Just because it’s a little bit harder doesn’t make it unrepublican,” he said of the referendum needed to raise taxes under TABOR. (See, “Appeals Court Panel Considers TABOR Challenge,” CBS News 23 Sep 2013)

State attorneys were supported in their Motion to Dismiss by an amicus brief filed earlier this year by the Colorado Union of Taxpayers (CUT) underlining the fact that the lawsuit’s claims present a “nonjusticiable political question” and highlighting the importance of preserving the separation of powers that could be jeopardized by a court ruling striking down the TABOR constitutional amendment.

Some key points:

  • The General Assembly’s power to propose taxes has always been subject to numerous constitutional limitations, qualifications, and exemptions.
  • And the people retain ultimate veto authority over all acts of the General Assembly, including taxation and spending.

Id. art. V, § 1 (“The legislative power of the state shall be vested in the general assembly . . . but the people reserve to themselves the power . . . at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.”).

  • TABOR’s primary restraint on the legislature is procedural, not substantive. … It is this element of democratic accountability and constitutional restraint that Plaintiffs challenge in this litigation.

 

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

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

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

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

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

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

Ultimately, though – it’s worth the effort.

Court Battles key in Colorado Recall Election victories

The unprecedented ouster of two incumbent state legislators in this month’s Colorado Recall Elections (state senators John Morse, SD-11 Colorado Springs lost 51%-49% and Angela Giron, SD-3 Pueblo lost 56%-44%, respectively) was historic not only in the outcome, but in the resources poured into the electoral fight.  Supporters of the incumbents spent over $3 Million (mostly coming from out-of-state special interests) while supporters of the Recall spent nearly $500,000 – flooding the airwaves and filling mailboxes with campaign advertisements and flyers, attempting to persuade those few voters who had yet to make up their minds about how (or even whether) to vote.

Yet despite the massive spending on the advertisements and volunteer-intensive “get out the vote” efforts, the electoral outcome was shaped far more by less-noticed, but ultimately MUCH more impactful, battles in our state courts.

Even the composition of the districts now held by Morse and Giron were determined, very much to the advantage of the Democrat incumbents, by court battles over the legislative district reapportionment process back in 2011.  (See the many contemporaneous articles on the Clear The Bench Colorado website, search keyword “reapportionment” for details – www.clearthebenchcolorado.org).

Those court battles left the Democrat incumbents in those districts with a sizable registration and voter “performance” advantage (see, “Myths and Reality about the Colorado Recall Elections” for details).

The next round of court battles were fought over whether the Recall elections could go forward at all – as Democrat attorneys attempted to get the petitions for the Recall vote thrown out on a technicality.  This time, the Democrats lost – and lost resoundingly.  The Recalls (and mail ballots) were on the way.

However, just as the first mailing of ballots (to overseas voters) was starting, yet another court challenge was filed, seeking to uphold the constitutional provisions (and timelines) for candidate ballot access (which were incompatible with the recently-passed “all-mail-ballot-elections” legislation, HB13-1303).  This time around, the challenge (and the primacy of the Colorado Constitution over statute) won – forcing the elections to be held primarily as polling-place elections, since the candidate certification deadline of 15 days before the election date made “all-mail-ballot” voting practically impossible.

This case may have been the most important in shaping the ultimate outcome of the Recall elections – possibly even saving the Recall effort, since “all-mail-ballot” voting favors the (Democrat) incumbents (admitted by the Left in attacking the ruling, saying):

“With a recall election that voters have to attend in person, lower turnout is likely, which is historically not beneficial to the Democratic incumbents in off-year elections.”

(Note: Losing incumbent state senate president John Morse blamed his loss on the lack of an “all-mail-ballot” election; ironically, Colorado Republican state chair Ryan Call had opposed the lawsuit and criticized the court ruling which set aside the “all-mail-ballot” provisions of the recently-enacted election law for the Recall vote).

The same case empowered the Colorado Secretary of State to issue new rules for the Recall elections, including some intended to reduce the opportunity for voter fraud by tightening the definition of “residency” requirements under the vague (and allegedly vote-fraud enabling) provisions of the Morse-Giron sponsored new elections law (HB13-1303).

Yet even those court-authorized rules changes were subjected to yet another round of legal challenges. Several of the new rules (including the clarified residency requirements and provisions expanding the use of E-mail ballot delivery) were struck down as exceeding the court’s mandate to allow new rules only in those areas needed to ensure compliance with the constitution’s Recall elections language.

last-minute challenge attempting to force Pueblo County Clerk & Recorder Gilbert “Bo” Ortiz to allow poll-watchers full access to observe the process (as required under state elections law) after reported voting irregularities was denied a hearing by a Denver judge, raising fears of vote fraud.

(For more on all of the Recall-related court challenges, search keyword “recall” on the Clear The Bench Colorado website).

Finally, the court case that didn’t happen (but probably should have) – allowing the out-of-state money machine to funnel massive contributions to the anti-Recall forces while skirting campaign finance laws. Challenging the multiple anti-Recall committees before an administrative law judge (ALJ) would have not only highlighted how money was shifted around by various special-interest groups to avoid campaign contribution limits and reporting requirements, but also (if successful) could have resulted in fines and penalties to the Bloomberg-backed machine in excess of $1M (yes, that’s one MILLION dollars).

Not to take anything away from the magnificent grassroots effort to get the Recall campaigns rolling, the various individuals and organizations joining in to help the effort, and the countless volunteer hours put in to gather petitions and “get out the vote” – but ultimately, these court cases may prove to have been the deciding factor in Colorado’s historic recall elections.

We continue to ignore these lessons at our peril.

Read more about the Colorado Recall Election court battles:

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 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 strikes down Recall voting rules as unconstitutional, forcing changes in Colorado Recall Elections

The Colorado Supreme Court ruled that Colorado’s constitutional provisions governing the process for casting votes in Recall elections violate the First and Fourteenth Amendments to the U.S. Constitution, forcing last-minute changes to ballots and voting instructions in Colorado’s legislative Recall elections.

The Colorado Supreme Court’s Order (to be followed by a full written Opinion at a later date) was issued in response to an  interrogatory (request for judicial clarification) filed late last Friday by Colorado Governor Hickenlooper, seeking the court’s guidance on whether the requirements of the Colorado Constitution (Article XXI Section 3) for voting on the Recall question and possible successor candidates are consistent with the the First and Fourteenth Amendments to the U.S. Constitution:

Colo. Const. art. XXI, § 3 requires an elector who wishes to vote for a successor candidate in a recall election to also cast a ballot on the recall issue.  Is this requirement consistent with the First and Fourteenth Amendments to the United States Constitution?

The Court’s Order was short and to the point:

The provision in Article XXI, Section 3, of the Constitution of the State of Colorado stating that “no vote cast shall be counted for any candidate for such office, unless the voter also voted for or against the recall of such person sought to be recalled from said office,” conflicts with the First and Fourteenth Amendments to the United States Constitution. We therefore answer the Interrogatory in the negative. [Emphasis added] (Order 13SA214, p.2)

Since the Order does not provide the reasoning behind the decision, it is difficult to analyze the basis for the court’s ruling.  It is interesting to note, however, that the court’s decision was apparently reached on a 5-2 vote, with Justices Coats and Marquez dissenting (a somewhat unusual pairing).

Clear The Bench Colorado will follow up with analysis of the court’s ruling once it is published.

Quo Vadis?

The Colorado Supreme Court’s order will not substantially alter the conduct or timeline for the Recalls; ballots will have to be printed with new instructions on voting the two separate questions (Part 1, Recall; Part 2, Successor Candidates) and ballot-counting rules will be changed to reflect the court’s ruling that “prior participation” on the Recall vote is not a prerequisite for casting a vote for successor candidates.

There is a remote possibility that the court’s ruling could lay the groundwork for a subsequent challenge by the incumbents against the current constitutional language barring them (the incumbents) from consideration as a “successor” candidate (on the grounds that “voters are deprived of their choice of candidate”); although that would certainly do great violence to the intent of conducting a Recall election in the first place, it is (sadly) not too far of a logical leap from the court’s ruling today.

Read more about legal challenges in the Colorado Recall elections:

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 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 once again asked to weigh in on Colorado Recall elections as Governor files interrogatory

The fate of Colorado’s historic legislative Recall elections has once again been thrown into the courts, as Colorado Governor John Hickenlooper filed an interrogatory (request for judicial clarification) with the Colorado Supreme Court seeking a ruling on whether the requirements of the Colorado Constitution (Article XXI Section 3) for voting on the Recall question and possible successor candidates are consistent with the U.S. Constitution (specifically, the First and Fourteenth Amendments):

Colo. Const. art. XXI, § 3 requires an elector who wishes to vote for a successor candidate in a recall election to also cast a ballot on the recall issue.  Is this requirement consistent with the First and Fourteenth Amendments to the United States Constitution?

The question arises from the 2-part nature of the ballot question in Recall elections under Colorado’s Constitution.  Part 1 (the Recall question) is phrased as a Yes/No question on whether the incumbent subject to Recall should be removed from office; Part 2 (successor candidates) lists candidates who filed to succeed the incumbent IF (and only if) the Recall question succeeds (Note: the incumbent CANNOT be among the list of potential successors):

There shall be printed on the official ballot, as to every officer whose recall is to be voted on, the words, “Shall (name of person against whom the recall petition is filed) be recalled from the office of (title of the office)?” Following such question shall be the words, “Yes” and “No”, on separate lines, with a blank space at the right of each, in which the voter shall indicate, by marking a cross (X), his vote for or against such recall.

On such ballots, under each question, there shall also be printed the names of those persons who have been nominated as candidates to succeed the person sought to be recalled; but no vote cast shall be counted for any candidate for such office, unless the voter also voted for or against the recall of such person sought to be recalled from said office. The name of the person against whom the petition is filed shall not appear on the ballot as a candidate for the office. [Emphasis added] (Colorado Constitution Article XXI Section 3)

The request for interrogatory arises from the (apparently recently-discovered fact) that similar language in the California Constitution related to Recalls was ruled unconstitutional by the United States District Court for the Southern District of California in a 2003 case (Partnoy v. Shelley, Interrogatory Exhibit A) involving the Recall of California governor Gray Davis.

In that ruling, the (CA) court held that the similarly-worded requirement to count votes for successor candidates only when votes were also cast on the Recall question violated the First and Fourteenth Amendments to the U.S. Constitution.

 Analysis:

The Colorado Supreme Court ruling is unlikely to substantially alter the course or conduct of the Recall election, since the Interrogatory does not call into question the 2-part form of the Recall ballot itself, merely the issue of whether a vote in Part 1 (Recall) is a necessary precondition (“prior participation”) for counting any votes cast in Part 2 (successor candidates).

At most, an affirmative ruling would impact the accompanying instructions for voting the ballot, and would obviously modify the process for counting votes cast for successor candidates if Recall succeeds.

A Colorado Supreme Court decision to strike down Colorado’s constitutional language on Recall ballots is far from a sure thing, however; the case law precedent is weak (a single ruling by a single District Court judge in another state and federal court circuit – the Ninth – NOT a ruling by the Ninth Circuit Court of Appeals, as erroneously reported elsewhere).  Moreover, as correctly noted elsewhere, because the ruling occurred in a different federal judicial circuit (California is in the Ninth Circuit, Colorado is in the Tenth) it is NOT binding judicial precedent (although the Colorado Supreme Court will certainly take judicial notice of, and consider, the California Recall ruling in its deliberations).

In any case, having the Colorado Supreme Court issue a ruling on this potential issue BEFORE the elections take place is prudent, as any challenge on this basis filed AFTER the election would certainly result in a (costly) recount, and could possibly lead to “the invalidation of the entire election based on the distribution of faulty ballots” – a “hanging chaos” best avoided. (Interrogatory at p.4)

Quo Vadis?

The Colorado Supreme Court has set a deadline for all interested parties to file briefs by tomorrow morning, Tuesday, August 27. A ruling could occur as early as Tuesday afternoon, but at least by Friday August 30th (when the ballot is due to be certified) at the latest.


(Photo originally published in Denver Post media gallery)

Read more about legal challenges in the Colorado Recall elections:

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 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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