Know Your Judge
Colorado Legislators, CUT (Colorado Union of Taxpayers) file Amicus Brief opposing “Fenster’s Folly” frivolous anti-TABOR lawsuit
The frivolous, groundless, and vexatious politically-motivated lawsuit attempting to overturn a Colorado Constitutional Amendment (the Taxpayer’s Bill of Rights, colloquially known as “TABOR”) filed in Federal court in May 2011 – and, after several rounds of motions and counter-motions, allowed to proceed to trial in July 2012 (despite clear constitutional precedent disallowing challenges on the basis of the “Guarantee Clause”) – entered a new phase today with the filing of an Amicus (“friend of court”) brief in the state’s interlocutory appeal to the 10th Circuit Court of Appeals.
The Amicus Brief, filed by Colorado legislators and the Colorado Union of Taxpayers (CUT) in opposition to the frivolous Fenster lawsuit, challenges the plaintiffs’ (several anti-TABOR current and former state legislators) lack of standing to file, underlines the fact that the lawsuit’s claims present a “nonjusticiable political question” and highlights 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.4
- The district court erred by determining that the claims here, all based on the Guarantee Clause, do not present a nonjusticiable political question.8
Where the Guarantee Clause is concerned, the Supreme Court has twice unequivocally shut the courthouse doors, in order to prevent “the inconceivable expansion of the judicial power and the ruinous destruction of legislative authority in matters purely political which would necessarily be occasioned by giving sanction to” Guarantee Clause claims in federal court. Pacific States Telephone & Telegraph Co. v. State of Oregon, 223 U.S. 118, 141 (1912); see also Luther v. Borden, 48 U.S. 1, 42 1849).9 The district court brushed aside these precedents because it considered them fact-bound. Neither opinion supports such a conclusion.10
- If the district court were to conclude that TABOR renders the Colorado Constitution unrepublican, that judgment “would necessarily affect the validity, not only of the particular statute which is before us, but of every other statute passed in [Colorado] since the adoption of [TABOR].” Pacific States, 223 U.S. at 141. The Constitution vests Congress with the sole authority to judge whether the Guarantee Clause has been satisfied in order to avoid the constitutional crisis that would result from enlisting the federal courts.
- The concept of justiciability, whether embodied in the standing or political question doctrines, is intended to preserve the separation of powers. … This fundamental concern about the “the proper—and properly limited—role of the courts in a democratic society,” Allen, 468 U.S. at 751, makes swift dismissal of the instant case critically important.
- The doctrine of separation of powers applies particularly to the judicial branch, preventing it from involving itself in potentially political disputes.
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.
2012 Year in Review: Colorado Courts Continue to Play Politics
Colorado Courts Continue to Play Politics in 2012…
Another tumultuous year has come and gone for the Colorado judiciary – and once again, Colorado Citizens and taxpayers have been hammered by the gavels of Colorado judges pounding their personal preferences over the will of the people – and the rule of law.
2012 saw the advancement of a frivolous, groundless, and vexatious politically-motivated lawsuit attempting to overturn a Colorado Constitutional Amendment (the Taxpayer’s Bill of Rights, colloquially known as “TABOR”) through the Federal courts (with oral arguments on a Motion to Dismiss in February, and proceeding to trial on a ruling in July). The District Court judge still has not issued a ruling in the case, but whatever the ruling, the case is almost certain to be appealed, and may ultimately end up before the U.S. Supreme Court.
Some good news came from the Colorado judiciary in March, as the Colorado Supreme Court upheld the Colorado Court of Appeals in striking down the CU Gun Ban. Unfortunately, the University of Colorado administration introduced policies designed to circumvent the ruling shortly thereafter, and the self-defense rights of Colorado citizens within the CU demesne continue to be threatened with the backing of many (if not most) of the CU Regents.
More good news in April, as a (Federal) court struck down Colorado’s unconstitutional “Amazon Tax” (as predicted by Clear The Bench Colorado Director Matt Arnold in testimony before its passage in 2010).
In May, the Colorado Car Tax (a.k.a. FASTER vehicle registration “fee”) was challenged in court as a violation of the state Constitution (the case is still winding its way through the courts).
In September, the Colorado Supreme Court rejected Ward Churchill’s attempt to force the University of Colorado to reinstate him (Churchill recently announced his intent to appeal all the way to the U.S. Supreme Court).
Clear The Bench Colorado helped Colorado voters to “Know Your Judge” with substantive evaluations of judicial performance prior to the November elections – the ONLY source of reliable, substantive information on judges appearing on the ballot.
Remaining statewide elections were significantly impacted (if not effectively pre-determined outright) by the 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.
Colorado courts continued to be a central battlefield for Education policy, as the ‘Lobato’ case advanced to the Colorado Supreme Court in the “Super Bowl of school funding litigation” and the Douglas County school choice voucher program case advanced to the Colorado Court of Appeals. (Interestingly, the Denver District Court judges involved in each case – Judge Sheila Rappaport in the ‘Lobato’ case, and Judge Michael Martinez in the Douglas County school choice case – are both scheduled to appear on the 2014 ballot).
Cases such as Lobato (particularly Rappaport’s biased ruling) and the politicized nature of the court’s involvement in the congressional redistricting and state legislative reapportionment cases – 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. Deciding issues of policy – instead of fairly and impartially upholding the law – is not it.
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.
CTBC Analysis of Oral Arguments in Douglas County School Choice Voucher Program at Colorado Court of Appeals
The Colorado Court of Appeals held oral arguments yesterday (Monday, 19 November) on a challenge to Denver District Court Judge Michael Martinez’ ruling in the Douglas County Choice Scholarship Program trial. The appeal, led by the Douglas County School Board and joined by the state of Colorado and several affected families, was held at the Colorado Supreme Court/Colorado Court of Appeals hearing room at 100 W. Colfax Avenue, Denver 80202 (the Denver Post building).
In that ruling, Judge Martinez decreed that the Douglas County Choice Scholarship Program violated multiple sections of the Colorado Constitution (Article IX, Section 7 Aid to Private Schools, Churches, Sectarian Purpose, Forbidden, Article IX, Section 8 Religious Test and Race Discrimination Forbidden Sectarian Tenets, and Article II, Section 4, Religious Freedom) as well as the state school financing act.
Monday’s oral arguments before the Colorado Court of Appeals, in which each side had 30 minutes to make their case, were recorded and posted online shortly after the hearing.
Attorney for the appellants (Douglas County School Board) Eric Hall opened with a description of the school choice scholarship program that touched upon the key legal issues at the heart of the appeal:
The program offers an additional educational choice to students who have been enrolled in Douglas County Public Schools for at least a year. No family must participate in it; and it in no way hurts the opportunity of any student to receive a free public education.
Key points:
- additional educational choice (not replacing constitutionally mandated “free public education”)
- no family must participate (program participation is non-compulsory)
- no harm to or diversion of resources from existing system of free public education
Hall continued:
Through the Choice program, the district offers aid to parents, on a neutral basis, without regard to religion. As a neutral program, it neither favors nor disfavors any private school, religious or non-religious.
Key Point:
The test of constitutionality established in the 2002 U.S. Supreme Court Zelman case allows education vouchers to be used for schools including religious schools IF the overall program is neutral towards religion and IF the choice to attend religious schools is entirely left up to the parent:
This Court’s jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice. See, e.g., Mueller v. Allen, 463 U. S. 388. Under such a program, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients not the government, whose role ends with the disbursement of benefits.
The fact that the program disburses funds directly to the parent, to use towards any school they choose, also addresses the Colorado constitutional prohibition on “direct aid” to religious institutions (Article IX, Section 7 Aid to Private Schools, Churches, Sectarian Purpose, Forbidden) since the aid is to the parent/student, not directly to the school.
Hall then addressed the provisions of Colorado’s School Finance Act, highlighting the aspect of local control (Section 104(1)(a)):
Finance Act funds flow to local districts… the amounts and purposes for which such Finance Act means are budgeted and expended shall be in the discretion of the district.
Key Point:
The Douglas County School Board has the statutory authority to decide on how to allocate school funding dollars within the district.
[At this point, Judge Jones asked if the School Finance Act provided for standing of individuals to bring suit under the provisions of the Act; Hall responded that the Act does not provide such standing (indeed, explicitly rejects it) and noted that Denver District Court Judge Michael Martinez had erred in allowing individuals standing to bring a Finance Act claim.]
Hall then characterized opposition to the School Choice Scholarship program as being based on objections to the fact that
private and religious schools can participate… they assert public funds can’t be spent in this way.
Hall noted that a 1982 Colorado Supreme Court case (Americans United) held that “public funds can be spent at private and religious schools by means of a neutral program of private choice.”
[Judge Jones then brought up a question (based on a number of cases, including Lemon, Weaver, and Mitchell) concerning the "influence of overtly religious education on younger kids... being inconsistent with what we want to do with public monies."
Hall responded that, based on the Weaver case, "any sort of indoctrination doctrine is not only discarded, but unconstitutional" (as a 1st Amendment violation)]
Hall concluded by noting that the court “should apply the Zelman test” – with “genuine private choice” as the key criterion, recognizing that any incidental benefits to institutions with a religious character are attributable to parent choice, not impermissibly mandated by the program itself, and noted the existence of several state programs providing funds to schools with a religious component:
“Public funds can and do flow to institutions with a religious component” under current state practice and law.
Plaintiffs attorneys divided their time in oral arguments between addressing constitutional/religious issues and School Finance Act issues.
Attorney Matt Douglas first addressed the constitutional/religious objections to the Douglas County School Choice Scholarship program.
Douglas began by asserting that the program violates several specific articles of the Colorado Constitution with respect to the establishment of religion. He further asserted that the appellants “must prove that the trial court was wrong on ALL of the constitutional provisions” to overturn that court’s judgment.
Douglas stated that the Colorado Constitution “specifically prohibits state funding of religious education” (under Article IX, Section 7 Aid to Private Schools, Churches, Sectarian Purpose, Forbidden and Article II, Section 4, Religious Freedom).
Douglas characterized the routing of educational aid through a charter school construct and via direct disbursement to the parents as a “sham” designed to “get around the plain language of the Colorado Constitution.”
[Judge Graham at this point asked, "Isn’t this program facially neutral?" (When told "no" he followed with "can the court inquire as to nature of religious beliefs if the program is facially neutral? Isn't that exactly what the trial court did?") . Graham questioned whether the trial court's reliance on “pervasiveness of indoctrination” for judgment was constitutionally permissible.]
Douglas argued that the court “can & should” render judgment on this basis, that the trial court viewed “whether sectarian tenets are being taught, period” which he said is allowed under federal case law.
Douglas noted that the trial court found that funds for tuition does constitute “aid to schools” (impermissible under the Colorado Constitution, Article IX Section 7).
[Judge Jones interjected at this point that the same kind of program was found NOT to constitute "aid to schools" in the Zelman ruling.]
Douglas countered that if ANY of the schools in the program don’t “admit all” regardless of religion, then the entire program is discriminatory.
Attorney Michael McCarthy addressed the public school finance issues and School Finance Act for the Plaintiffs
McCarthy opened by asserting that the purpose and intent of constitutional and statutory provisions for public school finance is to “prevent depletion of public school finance resources” – arguing that the Douglas County School Choice Scholarship program “will gut public school finance in Colorado” and, if allowed to proceed, would grow beyond the initial limited scope and “operate to materially deplete financing available to public schools” not only in Douglas County, but throughout the state.
Judge Graham again raised the issue of standing, noting the absence of explicit language allowing individual standing in the School Finance Act and asking
if we allow standing in private citizens, aren’t we really allowing them to be substitute Boards of Education?”
McCarthy responded that “no express cause of action is needed – other avenues exist” and that ultimately, standing was predicated on the test established by Justice Rovira,
“did plaintiff incur injury in fact, related to a constitutional right?”
The majority of the remainder of McCarthy’s time was taken up with a discussion on whether or not funding was diverted to or from other school districts, and whether students leaving the Douglas County public schools constituted a net loss (in funding) to the district. (Judges Graham and Jones, in particular, seemed skeptical).
McCarthy concluded by proclaiming,
Choice isn’t the preeminent constitutional value in this case – or in this state.
He argued that the School Finance Act requires a specific spending formula, and that a transfer of 75% of the per-pupil funding to students attending private schools constitutes an “illegal transfer” since the private schools are ‘not public, not free & uniform, not subject to local control.”
Oral arguments concluded with rebuttal by appellants’ attorney Eric Hall.
Hall noted that the trial court had ruled in favor of plaintiffs on Article IX Sections 2 and 15; however, Article IX Section 3 creates a “trust obligation” to school districts – which can spend funds as they like (within discretion).
Hall highlighted the absurdity of insisting that “public funds can ONLY be spent on public schools” -
if true, then NO expenditures to private entities (including contracting services on everything from janitorial to legal services) would be allowable. School districts, he continued, “can and do buy services from private entities.”
Analysis:
Based on the body of evidence and argument presented at yesterday’s hearings and throughout the appeals process, the trial court’s ruling appears likely to be overturned, in whole or in part. On the (admittedly esoteric) issue of standing to bring claims under the School Finance Act, it was clear that a majority (if not all) of the judges were skeptical at best, making it likely that those claims will be disallowed (rendering the trial court’s judgment in those areas moot).
On the core constitutional issues (respecting religious freedom and prohibiting public funds for support or sustaining of sectarian institutions), governing case law (from the 2002 U.S. Supreme Court Zelman case to the 1982 Colorado Supreme Court Americans United case and several others touched upon in filings and at argument) is clear that so long as the overall program is facially neutral (containing neither preferences for or against either secular or religious schools) and that school funds are spent in pursuit of education meeting secular criteria under local district control, the choice of individual students (parents) to attend schools with a religious component does NOT constitute “support” of the institution (nor, since the choice to attend a given school is left to individual program participants, does it “compel” sectarian attendance).
Moreover, since the program merely provides an additional choice among several options as an expansion to (not replacement of) the existing constitutionally mandated system of “free public education” and does not result in a net loss to the public system’s funding (indeed, it results in a 25% per-pupil surplus to the district), claims of damage under the School Finance Act lack justification.
The court’s ruling (to be issued “in due course”) will most likely be published in February or March of next year.
Since both sides in the case have signaled their intent to appeal if not satisfied with the verdict, the ultimate resolution of the case will fall to the Colorado Supreme Court – most likely (the wheels of justice grind slowly) in another year or more.
Additional References:
For another analysis of yesterday’s oral arguments (with more emphasis on policy implications over legal issues), read Education Policy Analyst Ben DeGrow’s superb summary.
Click here for a comprehensive review of the Douglas County Choice Scholarship Program (including program information, video and audio interview and news clips, news and commentary highlights and links to many legal documents in the case)
Colorado Court of Appeals to hear oral arguments in Douglas County school voucher program case Monday (19 Nov 2012)
The Colorado Court of Appeals will hear oral arguments Monday afternoon (19 November 2012) on the Douglas County school voucher program that was stopped (via permanent injunction) by Denver District Court Judge Michael Martinez in a controversial ruling (Larue v. Douglas County) in August 2011.
In that ruling, Judge Martinez decreed that the Douglas County Choice Scholarship Program violated multiple sections of the Colorado Constitution (Article IX, Section 7 Aid to Private Schools, Churches, Sectarian Purpose, Forbidden, Article IX, Section 8 Religious Test and Race Discrimination Forbidden Sectarian Tenets, and Article II, Section 4, Religious Freedom) as well as the state school financing act.
Martinez appears to have disregarded governing constitutional precedent established in the 2002 Zelman v. Simmons-Harris case, which established the constitutionality of school vouchers even for schools with a religious component if the choice is up to the parent:
This Court’s jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice. See, e.g., Mueller v. Allen, 463 U. S. 388. Under such a program, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients not the government, whose role ends with the disbursement of benefits.
A contemporaneous Colorado Springs Gazette editorial (“Backward voucher ruling favors oppression“) was a scathing indictment of Denver District judge Michael Martinez’ ruling to stop the Douglas County school choice program via permanent injunction, calling it “a decision to segregate and oppress,” also noting that voucher programs do NOT violate the U.S. Constitution’s Establishment Clause:
In Colorado, education money attaches to children. With each child who enrolls, a public school gets more than $6,000 for the year.
Vouchers issue the money to parents. At that point, the money belongs to the parent and child. They are free to spend it at almost any accredited school, religious or otherwise.
The key point – that educational choice belongs to the parent, not to the government (especially, not to the courts) – bears repeating:
Once state money is converted to a voucher and given to a child, it’s no longer the government’s. It belongs to the child, who is subject to the will of a parent or guardian. Parents and guardians have the right to choose whether their children are schooled in secular or religious settings.
Bottom Line:
The Douglas County case also touches upon important constitutional issues such the separation of powers between branches and levels of government, establishment of religion, and collection and allocation of tax dollars, but ultimately comes down to a very basic and fundamental issue:
who decides how to educate Colorado’s children?
Clear The Bench Colorado believes that the decision should be in the hands of parents – NOT in the hands of the courts.
Cases such as this 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.
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.
Districting, not Demographic Shifts, Determines Colorado’s Electoral Destiny
The influence of district boundaries on electoral results has long been recognized (adding new words to the political lexicon) – making the fight for control of the decennial redistricting process (for both state legislative and Congressional districts) both bitterly partisan and hard-fought.
In Colorado, the process for determining both Congressional and state legislative district boundaries has, for decades, been dominated by the courts – specifically, the perennially and predictably partisan Colorado Supreme Court.
Ultimately, no other factor better explains the relative electoral successes of both parties in Colorado over the last decade (or longer) in gaining legislative seats than the (re)districting process, nor more strikingly highlights the role of Colorado’s courts in “playing” (instead of refereeing) electoral politics.
The following article was published as a guest commentary in the Colorado Springs Gazette on Wednesday, 14 November 2012.
Colorado’s Election Outcome Was Determined Years Ago
(By Matt & Sarah Arnold)
A veritable plethora of pundits, former state party and elected officials, and other political operatives have been weighing in on the (to them, surprising) results of the 2012 elections in Colorado – which not only saw GOP losses in the two statewide races (President and CU Regent At-Large) but also ended the tenuous Republican majority in the State House, maintained the Democrat numbers in the State Senate, giving Democrats control of all branches of state government.
Many of them have “explained” the outcome (and their failure to predict election results) in Colorado as resulting from demographic shifts, gender gaps, or superior technology and tactics.
They are all wrong.
While the statewide candidates failed due to their inability to inspire support beyond straight party-line voters, the outcome of state legislative races was largely determined years ago. The seeds of the 2012 Republican defeat were planted in 2010, germinated in December 2011, and were only harvested in November 2012 – all due to how district lines were drawn. (For more information on this topic, search “reapportionment” on www.clearthebenchcolorado.org).
State legislative district reapportionment set the stage for Democrats to pick up seats in the State House, and hold their majority in the State Senate. If anything can be said to have “determined” the outcome of the 2012 state legislative elections, this was it.
In fact, the state legislative election results were not only predictable – they were actually predicted. Sarah Arnold, in her Elections 2012 forecast (published on 15 October 2012), correctly predicted the outcome of 91 out of 94 Colorado races (an additional 4 races were rated as “tossups”) based on a combination of numbers-crunching, knowledge of the candidates/campaigns, and political intuition (see PolitiGuru Elections 2012 on http://politigurugop.blogspot.com/p/2012-election.html).
As far back as 2009, Matt Arnold (Director of Clear The Bench Colorado) noted the importance of the former Chief Justice Mary Mullarkey’s appointments to the 2001 commission in setting the stage for the Democrat takeover of both legislative chambers through most of last decade; although in 2010, Republicans got more votes in all state House/Senate races combined (58% and 54%, respectively), those votes did not translate to actual seats (33/65 and 15/35, respectively). Unfortunately for GOP electoral fortunes in Colorado, Republican Party “leadership” failed to grasp the strategic implications of this fact in 2010.
State legislative election results this year demonstrate the same trend. In the 2012 state Senate races, GOP candidates garnered 43.5% of the total votes cast; proportional to the number of seats contested, this would have equaled 8.7 seats. Instead, Republicans won only 7 seats (of 20). In the House, GOP candidates received 48.5% of total votes cast; proportional to the number of seats contested, this would have equaled 32 seats: instead, Republicans won only 27 seats (of 65).
(Based on 8 Nov SOS numbers).
Clearly, there are other factors involved in the GOP’s performance (or lack thereof) in Colorado this year (ranging from individual candidate appeal to general messaging to media bias to technology lag to party organizational & leadership deficiencies, etc); however, demographic shifts (such as the growing percentage of Hispanic voters in Colorado) fail to explain the consistently abysmal GOP performance at the state level (total GOP vote % in state legislative races has consistently hovered at the 48%/44% level for several electoral cycles, with the notable exception of the 10% spike to 58%/54% in the “Tea Party surge” of 2010).
If 2010 was an anomalous year, basing reapportionment on the numbers achieved that year would skew results, making districts appear more “Republican” than they have performed historically.
Bottom Line: even WITH the stars aligning for the GOP in 2010, due to state legislative (re)districting, seats won has lagged the percentage of votes received. Because of the way the district lines are drawn, even “good-performance voting” years are bad (in seats won), and “bad-performance” years are worse. The 2012 state legislative electoral results are simply a reflection of, and return to, that reality.
Lack of leadership, and a dearth of strategic vision, has enabled the creation of an uneven playing field and led to a decade-long minority status in a state with more registered Republicans than Democrats, and a fairly right-of-center leaning block of unaffiliated voters – not impersonal (and inexorable) “demographic” changes.
(Matt Arnold is the founder and executive director of Clear The Bench Colorado, the state’s premier judicial accountability organization; Sarah Arnold is a political strategist and campaign consultant.)
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Clear The Bench Colorado helps Colorado voters “Know Your Judges” with substantive evaluations of judicial performance
[Clear The Bench Colorado Director Matt Arnold's article, below, was published Friday 26 October as a Guest Commentary by the Denver Post ("Evaluate the performance of Colorado judges before voting" in the Idea Log online opinion section, and in the Colorado Springs Gazette, in the Sunday 28 October print edition]
“Know Your Judges” with substantive evaluations of judicial performance
We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.
— Abraham Lincoln
As Coloradans prepare to cast their ballots in the 2012 elections, despite being bombarded with political ads, MOST voters have little to no information on up to a third of the people asking for their vote: our state’s 3rd Branch of government, the judges.
The official, government-sanctioned incumbent-protection “reviews” produced by the state’s Commissions on Judicial Performance (published and disseminated, at taxpayer expense, in the “Blue Book”) fail to provide much (if any) substance behind the published “recommendations” (almost uniformly in favor of “retaining” judicial incumbents in office). In that respect, the Blue Book “reviews” are little more than (taxpayer-funded) political ads for incumbents.
The Commissions on Judicial Performance (groups of political appointees charged with evaluating and reporting on the job performance of judicial incumbents) routinely fail to actually evaluate judicial job performance or provide adequate information sufficient for voters to base a decision. Summarizing an incumbent’s resume and tabulating the results of surveys sent out to a select group of lawyers and other judges fails to answer the question posed to voters, “do they deserve another term – and why?”
A Denver Post guest commentary by a former Judicial Performance commissioner (February 2010) noted,
There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters.
If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do. Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations. Some commentators and observers have denigrated the narratives as a “rubber stamp” exercise for retaining judges.
Why do we have political appointees (commissioners are appointed by the governor, attorney general, state legislators and the Chief Justice of the Colorado Supreme Court – the latter seeming to have a conflict of interest) telling Coloradans how to vote?
Colorado voters deserve better information on these unelected officials, who (usually with little notice) exert enormous influence over their lives. For the second straight election cycle, Clear The Bench Colorado has researched and evaluated the performance of the appellate court (statewide) judges appearing on the 2012 ballot (1 Supreme Court justice, 6 Court of Appeals judges), collected inputs on district and county judges from around the state, and published this information in an easy-to-read “scorecard” format as a resource for Colorado voters.
Our courts rule on important issues that seriously impact all Colorado citizens, including:
- Tax increases without constitutionally-required voter approval (property taxes, vehicle registration taxes – er, “fees”, energy taxes, and the so-called “Dirty Dozen” tax increases on everything from candy to doggy bags)
- Free Speech issues (including both academic and political speech rights)
- School funding and school choice issues
- Self-protection or “gun” rights (including overturning an illegal ban on concealed-carry by the University of Colorado)
- Healthcare issues (including insurance coverage, medical records privacy and liability for malpractice resulting in death)
- Congressional and state legislative redistricting and reapportionment, setting Colorado’s district boundaries for a decade
View Clear The Bench Colorado’s Evaluations of Judicial Performance 2012 for substantive evaluations of judicial performance – to better “know your judges” before casting your vote this year. (http://www.clearthebenchcolorado.org/evaluations-2012/)
Hickenlooper appoints Navarro to Colorado Court of Appeals
The second time was the charm for Anthony Navarro, who was just appointed to the Colorado Court of Appeals by Governor John Hickenlooper to replace outgoing Judge Robert Russel, a former contender for Colorado Supreme Court justice (Navarro had previously applied for consideration to join the state’s frontline appellate court in 2008, with the endorsement of the Colorado Hispanic Bar Association).
Governor Hickenlooper selected Navarro from a pool of 3 nominees (Robert T. Fishman of Denver, Russell H. Granger of Georgetown, and Anthony Navarro of Denver) picked by the State Judicial Nominating Commission last month.
Mr. Navarro (effective 3 November, Judge Navarro) will serve as one of 22 judges on the Colorado Court of Appeals (who rule on cases in 3-judge panels). His first term (considered a “provisional” term under the Colorado Constitution, Article VI Section 20) “expires” in 2014, when he will appear on the ballot for a “retention” vote:
A justice or judge appointed under the provisions of this section shall hold office for a provisional term of two years and then until the second Tuesday in January following the next general election.
Citizen participation in the judicial review and retention election process (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – hold judicial office, instead of more politicians in black robes.
This is particularly important in reviewing the performance of statewide appellate court judges – many of whom all too frequently have exercised unrestrained power, in violation of constitutional limits on their authority, in order to advance a personal and/or political agenda.
Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our judges are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Clear The Bench Colorado helps Colorado voters to “know your judges” with substantive evaluations of judicial performance
As Coloradoans prepare to cast their ballots in the 2012 elections, despite being bombarded with political ads, MOST voters have little to no information on up to a third of the people asking for their vote: the 3rd Branch of government in our state, the judges.
Clear The Bench Colorado has researched and evaluated the performance of the appellate court (statewide) judges appearing on the 2012 ballot (1 Supreme Court justice, 6 Court of Appeals judges), collected inputs on district & county judges from around the state, and published this information in an easy-to-read “scorecard” format (with linked case references) as an informational resource for Colorado voters.
View Clear The Bench Colorado’s Evaluations of Judicial Performance 2012 for substantive evaluations of judicial performance – to better “know your judges” before casting your vote this year.
UPDATE:
listen to Clear The Bench Colorado‘s “Know Your Judges: The Good, The Bad, and The Ugly” radio spot
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Colorado Supreme Court asked by Federal judge to clarify state campaign finance laws
The Colorado Supreme Court has been asked to clarify the “scope and meaning” of Colorado campaign finance laws, in an order issued by a Federal judge earlier this week. According to a statement issued 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 this year.
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 Supreme Court Judicial Nominating Commission names finalists for Colorado Court of Appeals vacancy
The Colorado Supreme Court Judicial Nominating Commission has named the three finalists to fill a pending vacancy on the Colorado Court of Appeals, due to the resignation of Judge Robert Russel (effective 3 Nov 2012), as reported by Clear The Bench Colorado last month.
The three finalists (from whom Governor John Hickenlooper will select one) are:
Robert T. Fishman of Denver, Russell H. Granger of Georgetown, and Anthony Navarro of Denver.
- Fishman is an appeals attorney at Ridley McGreevy & Winocur in Denver; his experience includes having clerked for (former) Colorado Supreme Court Chief Justice Luis D. Rovira
- Granger is a currently district judge in the 5th Judicial District (formerly a Clear Creek County judge), and was most recently reviewed (and retained) in 2008.
- Navarro currently works in the office of general counsel at the Social Security Administration; he previously applied for the Colorado Court of Appeals in 2008 (endorsed at the time by the Colorado Hispanic Bar Association).
The governor has 15 days from Wednesday to select one of the three. Comments regarding any of the nominees may be sent via e-mail to the governor at judicial.appointments@state.co.us
Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to judicial office, instead of more politicians in black robes.
This is particularly important in selecting the next statewide appellate court judges – many of whom all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.
Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our judges are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.
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.