Colorado Courts Continue to Play Politics in 2011…

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.

Last year closed with Colorado being declared a “judicial hellhole” by a national judicial evaluation organization (one of only three state supreme courts nationwide to qualify for the “honor”, joining Michigan and perennial favorite West Virginia in being so recognized).  The 2011 legislative session failed in repealing all but two of 2010’s unconstitutional “Dirty Dozen” tax increases (facilitated by the Colorado Supreme Court) or the even more onerous 2009 “FASTER” Colorado Car Tax legislation (aided and abetted by yet another anti-constitutional ruling by the Colorado Supreme Court’s “Mullarkey Majority” enabling taxes to masquerade as “fees”), and even almost passed another tax increase (the “movie-ticket tax“) attempting to exploit the court’s creation of anti-TABOR “loopholes.”

Spring and Summer was dominated by legislative battles over congressional redistricting (sadly, the state senate reprised the 2000 playbook of abdicating responsibility to send it to the courts) and the Colorado Reapportionment Commission’s public hearings on re-setting the boundaries of our state legislative districts.  Both issues came to a head in court battles during the Fall, with the Colorado Supreme Court’s ultimate decision in both cases (determining the political shape of Colorado for the next decade) coming in early December (December 5th & December 12th, respectively).

Colorado courts were also a central battlefield for Education policy, as one Denver District judge threw out Douglas County’s attempts to enable greater school choice, and another Denver District judge declared the state system of funding schools “unconscionable” while advancing the power of the courts to determine “proper” levels of school funding (despite the Constitution’s delegation of that power to the legislative branch) - although that decision is likely to be overturned after an expensive (and long) appeal to the Colorado Supreme Court.

In fact, 3 out of 4 “Top Colorado Political Stories of 2011” directly involve Colorado’s politicized judiciary (and the remainder, the voter rejection of tax increases at the ballot box, is juxtaposed against yet another court-approved tax increase the day before the vote):

1. Redistricting/Reapportionment
2. Failure of Prop 103
3. Lobato decision
4. Douglas County school vouchers

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.

Colorado’s State Board of Education voted 4-3 Tuesday morning to appeal Denver District Court Judge Sheila Rappaport’s ruling against the state in the Lobato school funding lawsuit.  Colorado Governor John Hickenlooper had officially announced last Wednesday* that the state would appeal Denver District Court Judge Sheila Rappaport’s ruling that the state’s education funding is not “thorough and uniform” as referenced in constitutional language (Colorado Constitution, Article IX, Section 2).  Rappaport’s 183-page ruling also paved the way for court-ordered tax increases, stating:

“It is also apparent that increased funding will be required.”

The state education board’s decision to appeal the Lobato ruling is significant because although the board’s vote to appeal Rappaport’s ruling was decided on a party-line basis (Education News Colorado)

(SBE’s four Republicans, Bob Schaffer, Marcia Neal, Paul Lundeen and Deb Scheffel, voted for appeal while Democrats Elaine Gantz Berman, Jane Goff and Angelika Schroader voted no)

the board joins Democrat Governor John Hickenlooper and Republican Attorney General John Suthers in a broad, bipartisan coalition of state elected officials seeking to overturn judicial usurpation of executive and legislative authority.

Governor Hickenlooper and Attorney General Suthers had earlier warned of “devastating” consequences for the state if the Lobato plaintiffs were successful in forcing additional school spending.

Although the lawsuit (and Rappaport’s ruling) is likely to be overturned (thanks to the departure of former Chief Justice Mullarkey and the more recent resignation of Justice Alex Martinez, 2 of the original 4 votes keeping the Lobato lawsuit alive in 2009 are now gone), appealing the case will cost Colorado taxpayers plenty:

[Mike] Saccone [spokesman for the attorney general's office] said the legislature has appropriated up to $3.5 million to defend the state against the suit.

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

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

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

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

• “Judicial Overreach” (Pueblo Chieftain editorial, 14 December 2011)
• “Judge Sets Constitution Aside in School Finance Ruling” (Audio, Education Policy Center, 12 December 2011)
• “Victory for Lobato Plaintiffs” (Education News Colorado, 9 December 2011)
• “Lobato case primer” (Education News Colorado, 11 August 2011)
• “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
• “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)
• “Lobato education-funding budget-buster aided & abetted by Colorado Supreme Court” (8 August 2011)

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

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

* Governor Hickenlooper responded to a question at a 13 December 2011 town hall event about Lobato that he was leaning towards an appeal, since the court’s ruling “clearly violated TABOR” and Colorado voters had recently rejected a tax increase purportedly targeted for education funding (Prop. 103).

The Constitution says we can’t raise taxes without a vote of the people - the people just voted specifically on more revenues for education, and the people pretty clearly voted 2-to-1 that this was a bad idea. So how can the courts say that we should do it?

Governor Hickenlooper clearly disagreed with Rappaport’s ruling, and clearly expects to win on appeal, since the alternative would plunge the state into a constitutional crisis:

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

Listen to audio update on the Lobato appeal (playing this week on 560KLZ The Source)

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.

Welcome to the 2011 Christmas edition of the Clear The Bench Colorado Friday Funnies!

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.

Last year closed with Colorado being declared a “judicial hellhole” by a national judicial evaluation organization (one of only three state supreme courts nationwide to qualify for the “honor”, joining Michigan and perennial favorite West Virginia in being so recognized).  The 2011 legislative session failed in repealing all but two of 2010’s unconstitutional “Dirty Dozen” tax increases (facilitated by the Colorado Supreme Court) or the even more onerous 2009 “FASTER” Colorado Car Tax legislation (aided and abetted by yet another anti-constitutional ruling by the Colorado Supreme Court’s “Mullarkey Majority” enabling taxes to masquerade as “fees”), and even almost passed another tax increase (the “movie-ticket tax“) attempting to exploit the court’s creation of anti-TABOR “loopholes.”

Spring and Summer was dominated by legislative battles over congressional redistricting (sadly, the state senate reprised the 2000 playbook of abdicating responsibility to send it to the courts) and the Colorado Reapportionment Commission’s public hearings on re-setting the boundaries of our state legislative districts.  Both issues came to a head in court battles during the Fall, with the Colorado Supreme Court’s ultimate decision in both cases (determining the political shape of Colorado for the next decade) coming in early December (December 5th & December 12th, respectively).

Colorado courts were also a central battlefield for Education policy, as one Denver District judge threw out Douglas County’s attempts to enable greater school choice, and another Denver District judge declared the state system of funding schools “unconscionable” while advancing the power of the courts to determine “proper” levels of school funding (despite the Constitution’s delegation of that power to the legislative branch) - although that decision is likely to be overturned after an expensive - and long - appeal to the Colorado Supreme Court.

Although remaining mindful that what’s at stake - holding our judiciary accountable for serial violations of our constitutional rights (to vote on taxes, even when taxes are called “fees”; defend our property against unjust seizure; bear arms in self-defense; and too many others to list) is serious business, all work and no play makes Matty a dull boy.

Although still awaiting payment a year later after “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) was once again ordered to pay Clear The Bench Colorado thousands of $ in legal fees (owed since the judge’s original ruling in July found their complaint “frivolous, groundless, & vexatious”) brings a rueful chuckle, the following video (even if focused on the national level) elicited 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 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 Governor John Hickenlooper officially announced Wednesday* that the state would appeal Denver District Court Judge Sheila Rappaport’s ruling that the state’s education funding is not “thorough and uniform” as referenced in constitutional language (Colorado Constitution, Article IX, Section 2). Rappaport’s 183-page ruling also paved the way for court-ordered tax increases, stating:

“It is also apparent that increased funding will be required.”

Rappaport’s 183-page opus spends a mere 10 pages even purporting to address issues of law (the remainder is dedicated to a lengthy exposition of the judge’s views on the educational system and her personal opinions on the worthiness of various witnesses) and fails to address how to enforce funding increases in compliance with other constitutional provisions.  As the governor’s statement noted,

“The judge’s decision provided little practical guidance on how the state should fund a ‘thorough and uniform’ system of public education,” said Hickenlooper.  ”Moreover, while the judge focused on the inadequacy of state funding, she did not reconcile this issue with other very relevant provisions of the Constitution, including the Taxpayer’s Bill of Rights, the Gallagher Amendment and Amendment 23.”

A Denver Post article (”Gov. Hickenlooper to appeal Lobato education-funding decision to state Supreme Court; state board of education delays its own decision“) also noted the budgetary implications:

The lawsuit seeks no specific sum of money, but plaintiffs have pointed to studies estimating the state is underfunding education by as much as $4 billion.

The state now spends more than 40 percent, or $3.2 billion in the 2010-11 fiscal year that ended in June, of its almost $7 billion general fund on K-12 schools.

Coloradans in November by a two-to-one margin shot down a $3 billion tax increase measure for schools.

Governor Hickenlooper and Attorney General Suthers had earlier warned of “devastating” consequences for the state if the Lobato plaintiffs were successful in forcing additional school spending.

Although the lawsuit (and Rappaport’s ruling) is likely to be overturned (thanks to the departure of former Chief Justice Mullarkey and the more recent resignation of Justice Alex Martinez, 2 of the original 4 votes keeping the Lobato lawsuit alive in 2009 are now gone), appealing the case will cost Colorado taxpayers plenty:

[Mike] Saccone [spokesman for the attorney general's office] said the legislature has appropriated up to $3.5 million to defend the state against the suit.

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

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

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

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

• “Judicial Overreach” (Pueblo Chieftain editorial, 14 December 2011)
• “Judge Sets Constitution Aside in School Finance Ruling” (Education Policy Center, 12 December 2011)
• “Victory for Lobato Plaintiffs” (Education News Colorado, 9 December 2011)
• “Lobato case primer” (Education News Colorado, 11 August 2011)
• “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
• “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)
• “Lobato education-funding budget-buster aided & abetted by Colorado Supreme Court” (8 August 2011)

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

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

* Governor Hickenlooper responded to a question at a 13 December 2011 town hall event about Lobato that he was leaning towards an appeal, since the court’s ruling “clearly violated TABOR” and Colorado voters had recently rejected a tax increase purportedly targeted for education funding (Prop. 103)

The Constitution says we can’t raise taxes without a vote of the people - the people just voted specifically on more revenues for education, and the people pretty clearly voted 2-to-1 that this was a bad idea. So how can the courts say that we should do it?

Governor Hickenlooper clearly disagreed with Rappaport’s ruling, and clearly expects to win on appeal, since the alternative would plunge the state into a constitutional crisis:

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

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

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

Ultimately, though - it’s worth the effort.

The Lobato v. Colorado school funding lawsuit concluded its fifth and final week in trial court in Denver last Friday - with plaintiffs seeking

billions of dollars of additional funding for schools, though it’s unclear where that extra money would come from. (Denver Post, “Colorado school funding trial enters likely final week“)

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

Plaintiffs scored a major victory when Denver District Judge Sheila Rappaport ruled to exclude evidence on the state’s budget and fiscal situation, as well as evidence on relevant constitutional provisions including the Taxpayer’s Bill of Rights (TABOR) and the Gallagher Amendment (restricting property tax collections).

According to an article in last weekend’s Pueblo Chieftain (”State’s pocketbook won’t figure in schools suit“),

Kathy Gebhardt, a lawyer for plaintiffs in Lobato v. the state of Colorado, told the education collective Colorado School Finance Project on Friday that exclusion of evidence related to the state’s budget condition was a key victory for her side in five-week trial that concluded last week.

Gebhardt said her legal team filed the motion “thinking that we probably had a 5 or 10 percent chance of winning on that, and we won, which pretty much I think gutted a big part of the state’s defense.”

In lawsuits challenging the adequacy of school funding in other states, plaintiffs rarely have sought similar rulings.

Although Judge Rappaport “does not expect to rule on the case for at least another month” the preliminary rulings do not bode well for the state, which “cannot afford to lose.”

A court ruling in favor of the plaintiffs could not only precipitate a constitutional crisis, but lead to a fiscal and budgetary train wreck of epic proportions.  Indeed, as Governor Hickenlooper correctly points out, the consequences for Colorado would be “devastating.”

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

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

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

• “Lobato case primer” (Education News Colorado, 11 August 2011)
• “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
• “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)

These 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.  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.

The Lobato v. Colorado school funding lawsuit enters its fifth and (likely) final week in trial court in Denver this Monday - with plaintiffs seeking

billions of dollars of additional funding for schools, though it’s unclear where that extra money would come from. (Denver Post, “Colorado school funding trial enters likely final week“)

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

Despite the lack of correlation between spending and performance - and despite the failure of court-imposed school funding increases in several states (including Colorado neighbors Kansas and Wyoming) to achieve increased school performance, despite revenue and spending increases -

In Colorado, where per-pupil spending was $8,782 in 2008-09, students often outperformed students in Wyoming, where funding - following a school finance lawsuit - was $14,268 per pupil.

plaintiffs continue to seek additional money that the state simply does not have.  A court ruling in favor of the plaintiffs could not only precipitate a constitutional crisis, but lead to a fiscal and budgetary train wreck of epic proportions.  Indeed, as Governor Hickenlooper correctly points out, the consequences for Colorado would be “devastating.”

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

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

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

• “Lobato case primer” (Education News Colorado, 11 August 2011)
• “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
• “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)

These 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.  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.

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

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

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

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

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

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

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

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

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

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

Ultimately, though - it’s worth the effort.

Continuing coverage of the pair of lawsuits seeking to have the courts decide educational policy in Colorado (the Douglas County school choice case, and the Lobato statewide educational funding case) over the weekend highlights the increasing role of the courts (as opposed to elected school boards, or the state legislature in whom constitutional authority for making education policy & resourcing decisions is vested) in deciding how - and under what conditions -  our children receive an education.

• Lobato v. Colorado school funding lawsuit:

Friday’s Denver Post published a guest commentary (”Lobato case is crucial to education“) that was nothing more than a special-interest plea for more money (that the state does not have) by the same people (a pair of school superintendants) who in one breath admit that “we find ourselves failing” but blame their failure solely on a “lack of resources” (never mind the successful accomplishments of other schools, particularly - but not only - charter and private schools less dependent on state funding).

The guest commentary fails utterly to substantiate a link between educational funding and performance, and fails to make the case for how “Colorado’s school funding system… is constitutionally inadequate” - since the Constitution leaves such questions of policy up to the state legislature, NOT the courts.

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

The authors are correct in one regard:

In terms of the future of public education, Lobato is the most important case ever tried in Colorado.

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

• Douglas County school choice lawsuit:

Saturday’s 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.”

The editorial correctly points out a fatal flaw in Judge Martinez’ ruling, which ignored governing constitutional precedent (Zelman v. Simmons-Harris, No. 00-1751, decided 27 June 2002, U.S. Supreme Court) holding that voucher programs did 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.

The Gazette’s editorial concludes by endorsing an appeal to a higher court: “Let’s hope this ignorant, backward ruling is soon overturned.”

Sunday’s Denver Post editorial (”The latest hurdle for school choice“) chimed in with (surprising!) support for the Douglas County school choice program in principle, but sounded a more cautionary note on the prospects for appellate success:

And while Douglas County officials have said they intend to appeal Denver District Judge Michael A. Martinez’s ruling, the language of his opinion - along with the current makeup of the Colorado Supreme Court - does not leave much room for optimism.

The Post’s editors have a point - they certainly are intimately familiar with the political predilections of the Colorado Supreme Court, as they are the court’s current landlords (a possible factor in the Post’s non-coverage of last year’s judicial retention elections) - but if the DougCo school board first takes their case to the Colorado Court of Appeals, which has largely been a bright spot for actually upholding the law in Colorado - they may have a decent shot at success, and will in any case build up a good record for where the case may ultimately be decided in the U.S. Supreme Court.

Finally, this morning’s (Monday) Parker Chronicle (online) reported on the first step of the appeal process (”Douglas County School District launches appeal process“):

The district announced it filed a stay of the permanent injunction filed against its choice scholarship pilot program, designed to deliver school vouchers to 500 district students. The program was stopped on Aug. 12 with the decision by Denver District Court Judge Michael Martinez, who ruled it unconstitutional in part because it routes public education money to private, religious schools,
In a news release issued Aug. 19, the district calls its motion “the first legal step in a planned appeal” of Martinez’s ruling.

Clearly, the fight for choice - and control - of education in  Colorado’s courts is just beginning.

These 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.  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.

Citizens of Colorado hold elections every year to send representatives to different venues to consider and decide on policy (and allocate resources) for their children’s education: in odd-numbered years, for local school boards; in even-numbered years, for the state legislature, which has the constitutional authority to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.”

Yet ultimately, the decisions about how education is funded, and how schools are run, are being made in neither of these arenas, but in the courts.

News coverage this week has highlighted this fact with two prominent cases:

• Douglas County school choice voucher program
• Lobato v. Colorado education-funding lawsuit

In the Douglas County school voucher program, the issue before the court revolves around whether an elected school district board has “the broad authority to contract with private schools for the provision of a public education to public school students.” [per Education Policy Center]  One might think that making decisions about the provision of public education is precisely why county residents elect a school board, but apparently (at least in the view of the plaintiffs, and the courts in Colorado) those decisions are better made by appointed judges.

The Douglas County case also touches upon important constitutional issues such a separation of powers, establishment of religion, and collection & allocation of tax dollars, but ultimately comes down to a very basic and fundamental issue: who decides how to educate Colorado’s children?

For additional information on this case, read:

• “Judge orders halt to Douglas County voucher program“, Denver Post (12 August 2011)
• “Judge halts voucher pilot for now“, Education News Colorado (12 August 2011)
• Denver District Court ruling, Larue v. Colorado Board of Education & Taxpayers for Public Education v. Douglas County School District

Lobato v. Colorado education-funding lawsuit

The case with far broader implications for public education in Colorado (and the state’s budget) is the Lobato v. Colorado education-funding lawsuit, which just wrapped up the 2nd week (in a trial expected to last 5 weeks total) of testimony and argument, also in Denver District Court.

In this lawsuit, plaintiffs allege (on the basis of a single phrase in the state Constitution, without regard for the actual assignment of decision-making authority and responsibility to the state legislature in that same phrase) that Colorado’s school-funding system is “unconstitutional.”  Plaintiffs seek an additional $3-4 BILLION per year in state spending (plus a near-term increase in school construction of some $18 Billion) to “fix” the alleged constitutional deficit.

One not need look very far (indeed, just across the border to Kansas) to see the potential for a fiscal and budgetary train wreck of epic proportions.  Indeed, as Governor Hickenlooper correctly points out, the consequences for Colorado would be “devastating.”

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

Bottom Line: the lawsuit seeks money the state simply does not have, based on extremely tenuous grounds (a few words in the state Constitution calling for “thorough and uniform” education), and is improperly seeking to achieve these goals via the courts, not through the legislative branch or local school boards where such issues are properly decided.

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

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

• “Lobato case primer” (Education News Colorado, 11 August 2011)
• “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
• “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)

These 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.  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.

The potentially budget-busting Lobato v. Colorado education-funding lawsuit - restored to life in October 2009 by the Colorado Supreme Court after having been rejected as non-justiciable by two lower courts - enters its second week of trial court hearings today.

Numerous analysts and commentators have noted that if the Lobato lawsuit succeeds, it will negatively impact Colorado’s schools and end up hurting - not helping - Colorado’s school-age children.  Shortly before the lawsuit went to trial last Monday, Colorado’s Democrat Governor John Hickenlooper and Republican Attorney General John Suthers took the unusual step of issuing a joint statement opposing the lawsuit, “arguing that it could cost the state billions of dollars if it loses in court.”

Over the weekend, Colorado’s leading newspapers weighed in further on the issue.

Sunday’s Denver Post (”Future uncertain if plaintiffs win education-funding Lobato case“) highlighted the uncertainty around just how deeply the lawsuit could affect Colorado’s budget if successful, calling it “uncharted territory.”  The Post article did note, however:

In other states where such school-funding “adequacy” suits have prevailed, court decisions have forced greater spending on schools. (Emphasis added)

The Pueblo Chieftain’s Sunday editorial, “Billions More,” was less timorous in its conclusions:

HERE WE are trying to dig ourselves out of the Great Recession, with Colorado’s state budget barely balanced with scads of gimmicks, and now a group is seeking a court order for the state to spend umpteen billions more on public schools.

The article further noted the dubious constitutional grounds for the lawsuit:

Attorney General John Suthers argues - correctly, we believe - that discretion in school funding constitutionally rests with voters and lawmakers, not the courts. He said a ruling in favor of the plaintiffs could cost the state up to $4 billion annually.

Worse, the article notes, the plaintiffs have also asked for massive - and immediate - increases in school construction:

Moreover, because the lawsuit asks for massive new school construction, the suit could cost the state an additional $18 billion. (Emphasis added)

Bottom Line: the lawsuit seeks money the state simply does not have, based on extremely tenuous grounds (an expository phrase in the state Constitution calling for “thorough and uniform” education), and is improperly seeking to achieve these goals via the courts, not through the legislative branch where such issues are properly decided.

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

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.