Mary Mullarkey

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

Published May 26, 2013 | By CTBC Director

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

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

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

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

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

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

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

 At Stake?

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

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

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

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

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

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

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

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

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

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

Bottom Line:

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

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

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

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

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

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

The Colorado Car Tax – er, ‘FASTER’ “vehicle registration fee” increase – challenged in court as violation of state Constitution

Published May 21, 2012 | By CTBC Director

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

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

Despite being a central issue in the 2010 elections (Democrat Governor Bill Ritter chose not to seek re-election in large part because of the tax increase’s unpopularity; Senate sponsor Dan Gibbs also chose not to seek re-election; and House Sponsor Joe Rice was defeated by now-Representative Kathleen Conti largely on the strength of her campaigning on the Car Tax issue), the legislature has failed to overturn the clearly unconstitutional tax (or address other unconstitutional aspects of the legislation, including establishment of unaccountable “government-owned enterprises” to administer the tax – er, “fee” – collections and revenues).

It has long been clear that the proper venue for overturning this highly unpopular, regressive, and unconstitutional tax increase is NOT via the legislature (which is unwilling or unable to act) but via a court challenge.  Unfortunately, as long as the actively anti-TABOR “Mullarkey Majority” (and its successors) ruled the Colorado Supreme Court, prospects for a reasonable hearing on the merits (and interpretation actually based on the Colorado Constitution, as written) have been bleak.

However, due to recent changes in the composition of the state’s highest court (blatantly partisan and anti-TABOR Chief Justice Mary Mullarkey quit rather than face voters in 2010 and Mullarkey ally Justice Alex Martinez quit the court to take a Denver city job last Fall), along with the impending retirement of Mullarkey’s heir as Chief Justice (Michael Bender), a lawsuit challenging the ‘FASTER’ Colorado Car Tax (er, “vehicle registration fee”) increase might now have a chance.

Apparently judging the time to be ripe, the TABOR Foundation – represented by the Mountain States Legal Foundation – filed suit today (21 May 2012) challenging the constitutionality of the 2009 ‘FASTER’ Colorado Car Tax.  From the organization’s press release:

“In clear violation of TABOR, the General Assembly enacted and CDOT implemented a scheme to levy taxes and raise revenues without a vote of the people of Colorado,” William Perry Pendley of the Mountain States Legal Foundation, said in a statement.

The lawsuit targets not only the over $100 Million in (unconstitutionally-imposed) new taxes levied, but also the $300 million in new government bonds imposed by the Colorado Bridge Enterprise (one of the constitutionally dubious quasi-government “enterprises” established under the ‘FASTER’ law).

The Foundation seeks declaratory and injunctive relief and an order requiring refund of all revenues collected, along with the payment of interest, as required by TABOR.

The TABOR Foundation’s lawsuit highlights the fact that legislative action alone is frequently inadequate in preserving rights and freedoms – bad laws can (and should) be struck down by citizens (working alone or in groups) defending their rights in court.  The fact that it took years before the conditions were conducive to a court challenge also highlights the fact that elections to legislative or executive office are not the only votes that matter – underlining the critical importance of the judicial accountability movement spearheaded beginning in 2009 by Clear The Bench Colorado.

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 called it (back in 2010): Federal court strikes down Colorado’s unconstitutional ‘Amazon Tax’

Published April 4, 2012 | By CTBC Director

Clear The Bench Colorado called it (back in 2010): as reported in the Denver Post (“Federal court tosses Colorado’s Amazon tax“), the Denver Business Journal (“Colorado’s ‘Amazon tax’ struck down“) and ably analyzed on the View from a Height blog (“Amazon Tax Bites The Dust“) – the unconstitutional, and never-collected, Colorado ‘Amazon Tax’ was overturned in federal court.

Clear The Bench Colorado was at the forefront of the opposition to the unconstitutional “Dirty Dozen” tax increases passed by the Colorado Legislature in 2010 – testifying before the House and Senate Finance Committees that the tax increases were violations of the rights of Colorado citizens under the Colorado Constitution (Article X, Section 20: Taxpayers Bill of Rights) to be consulted (by vote) before being subjected to more or higher taxes, despite an interpretation of the Colorado Supreme Court ruling in the “Mill Levy Tax Freeze” case that the requirement to ask first could be ignored.

The 2010 internet sales tax (or “Amazon Tax”) House Bill 10-1193: Sales Tax Out of State Retailers (Pommer/Heath) was among the worst of the “Dirty Dozen” tax increases from both a constitutional and policy perspective, since previous court rulings had already held that a state’s attempts to regulate commerce in other states (as this tax attempted to do) ran afoul of the U.S. Constitution.

Clear The Bench Colorado Director Matt Arnold testified before both the state House and Senate Finance committees that the Amazon Tax was a violation of both the Colorado Constitution (TABOR – Article X, Section 20) and the US Constitution before the law was passed back in 2010 and boldly predicted that the law would be challenged – and be struck down – in federal court.

Instead of heeding the warning, the Democrat-controlled legislature passed what was clearly an unconstitutional law (depending, no doubt, on a then reliably anti-constitutional Colorado Supreme Court to uphold the law) which not only failed to collect any tax revenue, but wound up costing the state tens if not hundreds of thousands of taxpayer dollars to defend the indefensible in federal court when the law was (predictably) challenged – and (predictably) overturned.

It’s worth noting that the challenge was filed in Federal court, not in the state courts, because the plaintiffs clearly understand that the Colorado Supreme Court has established a pattern of failing to uphold the law (as written) and that the current majority on the court would have a vested interest in striking down any challenge to the tax increase law since it relied explicitly on an interpretation of their ruling in the “Mill Levy Tax Freeze” case.  It’s a sad state of affairs when businesses and consumers cannot count on the courts in our state to uphold the rule of law – part of why Colorado is regarded as a “judicial hellhole.”

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 upholds Denver District Court Judge Robert Hyatt’s ruling on Colorado Congressional Redistricting

Published December 5, 2011 | By CTBC Director

In a surprisingly rapid decision following last Thursday’s oral arguments in challenges to a Democrat-drawn Congressional Redistricting map previously approved by Denver District Court Judge Robert Hyatt, the Colorado Supreme Court announced in a court order issued Monday morning (5 December) that it affirmed Hyatt’s ruling in the lower court and the ‘Moreno South Map’ establishes the boundaries of Colorado’s Congressional districts for the next decade.

(Link for Colorado Supreme Court order affirming the Denver court’s ruling and Moreno Map)

democrat-statewide-20111031-crop

(New Democrat redistricting map – statewide)

(UPDATE: the Denver Post has created a “find your congressional district” application)

The Colorado Supreme Court’s ruling, although disappointing to Colorado Republicans (particularly the residents of Douglas and Larimer counties) hardly comes as a surprise – Colorado Democrats carefully prepared the conditions for their victory on Congressional Redistricting as part of a long-standing strategy of sending the decision to the courts, where they have traditionally enjoyed a friendly venue.

Even before reprising the 2000 legislative session playbook by blocking passage of (constitutionally required) Congressional Redistricting legislation in the Colorado state senate, the more strategically-savvy Democrat leadership set the conditions for their eventual court victory by enabling judicial consideration of “non-neutral” political factors (and removing guidelines establishing a hierarchy of neutral criteria) in the  “Mary-mandering” legislation passed at the close of the 2010 legislative session – allowing Denver District Court Judge Robert Hyatt room for extensive discretion (i.e. exercising his own personal preferences) in ruling for the ‘Moreno Map’:

The General Assembly amended this statute in 2010 to repeal the statutory prohibition, adopted in 2004, against the use of political data such as party registration and so-called “political performance” data. (Ruling at 43)

Despite having copious advance notice of Democrat intentions in regard to Congressional Redistricting strategy, Republican “leadership” was caught flat-footed and “steamrollered” in the courts:

Republicans may not even be able to decry the Colorado Supreme Court’s ruling as purely partisan (contrasting with the situation in the 2003 Salazar v. Davidson congressional redistricting case) or an example of unmitigated judicial activism, since the statutory changes (enabling consideration of purely political factors by the courts) and selective use of testimony may have provided sufficient legal “cover” for the court’s ruling majority to affirm the lower court’s ruling – aside from that pesky constitutional provision (Article V, Section 44) mandating Congressional Redistricting as a legislative, not judicial, responsibility in the first place.

Final judgment on the legal merits of the Colorado Supreme Court’s decision in this case (along with knowing the vote count) will have to wait, pending release and review of the actual written ruling (expected in the coming weeks).

In any event, the boundaries of Colorado’s Congressional districts are now set for the next decade – there is no further appeal from the Colorado Supreme Court’s ruling in this case.

Irrespective of one’s preferences on the congressional district maps, the negative repercussions of manipulating the redistricting process to impose an outcome via the courts are severely damaging to public confidence in our institutions of state government – both legislative and judicial.  Legislative abdication of constitutionally-mandated responsibilities reinforces public perception of politicians as feckless and irresponsible (not without reason).

Perhaps more importantly, the intentional politicization of the judiciary – increasingly seen as acting as just another category of politician, distinguished from the other branches only by a unique mode of dress (black robes) – is corrosive to our institutions, and undermines the sanctity of 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.

CTBC Analysis of Oral Arguments in Congressional Redistricting appeal before Colorado Supreme Court

Published December 2, 2011 | By CTBC Director

The Colorado Supreme Court held oral arguments yesterday (Thursday, 1 December) on a challenge to Denver District Court Judge Robert Hyatt’s ruling in the Colorado Congressional redistricting trial.  The appeal, led by Douglas County and joined by the Republican petitioners (one from each of the state’s seven congressional districts) in the original case, was held in the Old Supreme Court Chambers of the Colorado Capitol, 200 E. Colfax Avenue, Denver 80203

Thursday’s oral arguments before the Colorado Supreme Court, in which each side had 30 minutes to make their case, were recorded and posted online shortly after the hearing.

Unlike the challenges to the state legislative district maps (which resulted in the maps being rejected by the Colorado Supreme Court and remanded back to the Colorado Reapportionment Commission), which revolved around clear and straightforward constitutional criteria, the arguments in the Congressional Redistricting case dealt with much more esoteric issues of case precedent & standards of legal review, making a prediction of the outcome much less certain.

democrat-statewide-20111031-crop

(New Democrat redistricting map – statewide)

Opponents (challenging the “Moreno Map” approved by Judge Hyatt) went first.

Attorney Richard Westfall (representing the Hall plaintiffs – the Republican parties to the original case) opened by stating “the crux of this appeal is whether the trial court is free to disregard decades of precedent in amending congressional districts this cycle.”  He outlined the basis for the appeal on two main points:

  1. It was ‘manifestly unreasonable’ for the trial court to ignore existing ‘communities of interest’ regarding Douglas and Larimer counties
  2. When a court draws congressional districts, there are judicial standards that should be followed – and when they are not, a ‘de novo review’ of the record is required

Westfall then addressed the disparate application of “agricultural communities of interest” in the case of Douglas and Larimer counties – held by the trial court to be paramount in tying Douglas, yet negligible in linking Larimer, to the Eastern Plains congressional district, CD4 (long established in case law as the “Eastern agricultural” district for the state).  He highlighted Larimer’s status as an agricultural production center (the 10th largest in the state, with $128M in agricultural production, contrasted with Douglas County’s mere $16M) and close ties with ‘similar’ neighboring Weld County as strong evidence for Larimer’s continuing “community of interest” with CD4.  Westfall also raised the “absolute inconsistency in application” of the standard of oil & gas exploration as a “community of interest” binding Douglas County (with “zero” oil & gas permits issued in 2010) to CD4 while ignoring existing oil & gas exploration efforts in Larimer County.

Questions put to Westfall by the Colorado Supreme Court justices raised the issue of competing ‘communities of interest’ (Chief Justice Bender asked,”why is it so unreasonable that beetlekill, and the universities” don’t establish a “community of interest” between Boulder and Larimer counties?)

Other questions addressed the ‘standard of review’ for the Colorado Supreme Court to apply in reviewing the lower court’s ruling (Justice Monica Marquez asked regarding standards of review, “was the trial court decision supported by the record?” and raised the issue of how to apply judicial standards vs. statutory standards, and discretion in applying standards).

Attorney Kelly Dunnaway, representing the Douglas County plaintiffs, added more information about the “communities of interest” applying to Douglas County – as perceived by the county government and majority of county residents.  He highlighted the fact that transportation, jobs, water compacts, membership in regional government organizations (including RTD, the stadium district and DRCOG, the Denver Regional Council of Governments) and tax-sharing agreements all tied Douglas County to the Denver metro suburban area and NOT to the Eastern Plains.  He pointed out the “manifestly arbitrary” nature of the trial court’s selection of evidence to put Douglas County in CD4 – noting that the trial court “invented communities of interest that don’t really exist in order to support the order.”

Questions to Dunnaway also addressed the issues of standards of review and findings of fact in the trial court’s order.  Justice Rice asked if the standard of review is to “look for absence of information in the court order;” Chief Justice Bender asked if there was “insufficient data to support findings of fact” in the trial court ruling (Dunnaway: “absolutely”) or if there was “sufficient evidence to support the conclusion” reached by the trial court (Dunnaway: it was arbitrary to not consider Douglas County’s evidence and testimony, “ignoring wishes of residents in both [Douglas and Larimer] counties”).  Justice Marquez noted that “we need to look at this map as a whole… there are always competing interests” (Dunnaway: the standard is whether the decision was “manifestly unreasonable” – noting that not only were Douglas and Larimer counties impacted but “1.4 Million people in Colorado were reassigned to different congressional districts under the ‘Moreno Map’ – over a third of Colorado residents, without ‘compelling reason,’ concluding that it is “manifestly unreasonable to disenfranchise 1.4 Million people”).

Proponents for the ‘Moreno Map’ were represented by Democrat Party attorney Mark Grueskin (astute observers of Clear The Bench Colorado (or of Colorado politics in general) may recall Mark Grueskin from his role in establishing a shadowy and well-funded special-interest group to counter the Clear The Bench Colorado judicial accountability efforts during the 2010 judicial retention vote).

Grueskin opened by noting that the Colorado General Assembly had failed to pass congressional redistricting legislation 4 times in the past 30 years – resulting in 3 judicial redistricting decisions.  He asserted that the Moreno Map created “appropriate districts to ensure fair representation.”

Grueskin’s opening statement drew an immediate question from Justice Marquez – noting that “part of this notion of effective representation hinges in some part on stability of districts, in part to establish that identity over time.”  Each congressional district “conjures in my mind a certain image…”

Is it really appropriate every 10 years to just completely wipe the slate clean? How does your map honor minimizing disruption of districts?

Grueskin responded that although it’s appropriate to “recognize stability”… it doesn’t trump other criteria.  He asserted that issues and “communities of interest” do change, and that the judicial process is an appropriate venue for assessing what is “put into evidence” in order to establish congressional districts, and argued that it is “counterintuitive… that districts are set in stone.”

Chief Justice Bender then asked Grueskin to address the main points of the opponents’ argument (1. disagreement on standard of review, and 2. taking Douglas and Larimer counties out of current districts was ‘unfair’) – “what are the facts supporting [Hyatt's] decision?”

Grueskin argued that “evidence linking Boulder and Larimer counties is strong” – citing “expert testimony” that the demographics of Boulder and Larimer counties are “virtually identical” while the demographics of Larimer and the Eastern Plains are “exceedingly different.”  He noted many common employment industries in both counties, while noting that the percentage of residents actually employed in agriculture in Larimer is not large.

Grueskin noted that the “standard of review” issue is important, while maintaining that the issue of what is open to ‘de novo review’ is very limited.

Finally, the attorney for Aurora expressed support for the ‘Moreno Map’ in keeping Aurora wholly within a single congressional district, citing previous case law supporting keeping the city intact as a “community of interest” that had previously been trumped by other factors.  He did note, however, the close ties of Aurora to Douglas and Elbert counties as a provider of water resources (which one might think would be an argument for maintaining Aurora in a “community of interest” with those counties).

Interestingly, neither side brought up the disputed notion of “competitiveness” as a basis for defining congressional district boundaries, cited by Judge Hyatt in support of his decision to split some counties (Douglas, Adams, Arapahoe, and Eagle) and not others. (Ruling at 43)

Bottom Line:

The Colorado Supreme Court’s decision in the appeal of the trial court’s congressional redistricting ruling is likely to come down to the ‘standards of review’ issue: was the trial court “manifestly unreasonable” in defining districts and did it “inconsistently apply” standards for ‘communities of interest’ in assigning counties to congressional districts?

The extent of judicial discretion exercised by Denver District Court Judge Robert Hyatt (in selecting evidence and applying statutory criteria) is also likely to factor in the court’s ruling.  Thanks to the “Mary-Mandering” bill passed in the waning days of the 2010 legislative session, the judge could pick & choose criteria including “non-neutral” political factors according to his personal preference.

The General Assembly amended this statute in 2010 to repeal the statutory prohibition, adopted in 2004, against the use of political data such as party registration and so-called “political performance” data. (Ruling at 43)

Quo Vadis?

Although “reading the tea leaves” in such a complex and highly political case is fraught with danger, based on the arguments presented, questions posed by the Colorado Supreme Court justices, and in light of relevant case law precedent and Colorado statutory requirements (see below), Clear The Bench Colorado can discern some indicators on the eventual outcome:

  • Justices Bender and Rice (the remaining members of the “Mullarkey Majority”) will almost certainly vote to uphold the Moreno map (based on past ‘performance’ and questions asked)
  • Justices Eid and Boatright (the Colorado Supreme Court’s newest member) appeared skeptical that the trial court consistently applied standards and considered existing “communities of interest” and relevant case law; they appear disposed to reject the map
  • Justice Coats asked no questions during oral argument; he trends “conservative” and dissented in the judicial usurpation of legislative redistricting authority in the 2003 redistricting case (Salazar v. Davidson), and tends to support case law precedent (which would support maintaining traditional “communities of interest” & minimizing disruption).  Leans reject.
  • Justice Hobbs appeared to accept proponents’ arguments that competing “communities of interest” had been considered by the trial court, and that on balance the evidence was sufficient to support Hyatt’s ruling; leans uphold.
  • Justice Marquez asked the most incisive and relevant questions at oral argument.  Although it’s not clear how she might eventually decide, it is clear that she is possessed of a sharp legal mind and appears disposed to rule on the merits of the evidence and legal criteria applicable to the case.
  • CTBC predicts that the Colorado Supreme Court will almost certainly issue a split decision, most probably ending on a 4-3 vote (with Justice Marquez the most likely deciding vote). Based on available evidence, it’s impossible to predict which way it will go – but given the urgency of reaching a decision, we’ll see a ruling from the court next week.


Congressional District Google Earth maps (requires Google Earth download): Moreno/South Map (Google Earth)

Statutory Criteria governing Congressional Redistricting:

2-1-102. Neutral criteria for judicial determinations of congressional districts.
(1) In determining whether one or more of the congressional districts established in section 2-1-101 are lawful and in adopting or enforcing any change to any such district, courts:

(a) Shall utilize the following factors:

(I) A good faith effort to achieve precise mathematical population equality between districts, justifying each variance, no matter how small, as required by the constitution of the United States. Each district shall consist of contiguous whole general election precincts. Districts shall not overlap.
(II) Compliance with the federal “Voting Rights Act of 1965″, in particular 42 U.S.C. sec. 1973; and

(b) May, without weight to any factor, utilize factors including but not limited to:

(I) The preservation of political subdivisions such as counties, cities, and towns. When county, city, or town boundaries are changed, adjustments, if any, in districts shall be as prescribed by law.
(II) The preservation of communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors;
(III) The compactness of each congressional district; and
(IV) The minimization of disruption of prior district lines.


Additional references:

  • Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)
  • Redistricting in Colorado (Ballotpedia site – although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site – contributions come from a variety of sources and are frequently edited – proceed with some skepticism)

Colorado Supreme Court holds oral arguments on appeal of Denver District Court ruling on Congressional Redistricting

Published December 1, 2011 | By CTBC Director

The Colorado Supreme Court holds oral arguments today (Thursday, 1 December) on a challenge to Denver District Court Judge Robert Hyatt’s ruling on Colorado Congressional redistricting.  The appeal, led by Douglas County and joined by the Republican petitioners (one from each of the state’s seven congressional districts) in the original case, is proceeding on an accelerated schedule starting at 11:15 AM in the Old Supreme Court Chambers of the Colorado Capitol, 200 E. Colfax Avenue, Second Floor, Denver 80203

Today’s oral arguments before the Colorado Supreme Court, in which each side will have 30 minutes to make their case, will be recorded and posted online shortly after the hearing.

Arguments in the case are likely to revolve around the issue of whether the lower court properly adhered to Colorado constitutional and statutory guidelines governing redistricting, in particular the requirement to maintain county integrity where possible

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts. Article V, Section 47(2)

and “preservation of political subdivisions such as counties, cities, and towns.” [C.R.S. 2-1-102(1)(b)]

Douglas County is also challenging Judge Hyatt’s assertion that Douglas County is more properly within a “community of interest” with the Eastern Plains (putting Castle Rock and Park Meadows shopping mall in the same district as Wray, Burlington, and Lamar).  [Ed. an observer wryly noted that Douglas County doesn't even have a Burlington Coat Factory location, much less strong 'agricultural' ties to the plains]

Finally, petitioners are likely to challenge the notion of “competitiveness” as a basis for defining congressional district boundaries, cited by Judge Hyatt in support of his decision to split some counties (Douglas, Adams, Arapahoe, and Eagle) and not others. (Ruling at 43)

It must be noted that ”competitiveness” is a political argument, NOT a legal or constitutional argument (since there is neither a clear definition, nor constitutional requirement, for “competitiveness”), and as such has no place in a court ruling on the constitutional or legal merits of the maps.

Given the Colorado Supreme Court’s rejection of “competitiveness” as a factor taking precedent over clear constitutional and statutory guidelines in remanding state legislative district maps back to the Colorado Reapportionment Commission for corrections and revisions, it would be utterly inconsistent of the court to reject “competitiveness” as a primary factor in state legislative redistricting while upholding the notion for Colorado’s Congressional districts.

Sadly, the entire spectacle of judicial imposition of a political solution to Colorado’s Congressional District representation could have been prevented had the state legislature carried out their constitutionally-mandated responsibility to pass redistricting legislation instead of sending it to the courts last Spring.

Congressional District Google Earth maps (requires Google Earth download): Moreno/South Map (Google Earth)

Additional references:

  • Constitutional Provisions Controlling Reapportionment/Redistricting (official Colorado state website, which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)
  • Redistricting in Colorado (Ballotpedia site – although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site – contributions come from a variety of sources and are frequently edited – proceed with some skepticism)

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

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

Ultimately, though – it’s worth the effort.

Colorado Supreme Court considers appeal of Denver District Court ruling on Congressional Redistricting

Published November 21, 2011 | By CTBC Director

The Colorado Supreme Court granted certioriari Thursday, 17 November (agreed to hear the appeal) on a challenge to Denver District Court Judge Robert Hyatt’s ruling on Colorado Congressional redistricting.  The appeal, led by Douglas County and joined by the Republican petitioners (one from each of the state’s seven congressional districts) in the original case, is proceeding on an accelerated schedule culminating in oral arguments (open to the public) on 1 December starting at 11:15 AM in the Old Supreme Court Chambers of the Colorado Capitol, 200 E. Colfax Avenue, Second Floor, Denver 80203)

Opening briefs from the petitioners (appellants) are due to the Colorado Supreme Court on Wednesday, 23 November; response briefs are due to the court on Monday, 28 November (so much for a happy Thanksgiving weekend for the lawyers).

Next Thursday’s (1 December) oral arguments before the Colorado Supreme Court, in which each side will have 30 minutes to make their case, will be recorded and posted online shortly after the hearing.

Arguments in the case are likely to revolve around the issue of whether the lower court properly adhered to Colorado constitutional and statutory guidelines governing redistricting, in particular the requirement to maintain county integrity where possible

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts. Article V, Section 47(2)

and “preservation of political subdivisions such as counties, cities, and towns.” [C.R.S. 2-1-102(1)(b)]

Douglas County is also challenging Judge Hyatt’s assertion that Douglas County is more properly within a “community of interest” with the Eastern Plains (putting Castle Rock and Park Meadows shopping mall in the same district as Wray, Burlington, and Lamar).  [Ed. an observer wryly noted that Douglas County doesn't even have a Burlington Coat Factory location, much less strong 'agricultural' ties to the plains]

Finally, petitioners are likely to challenge the notion of “competitiveness” as a basis for defining congressional district boundaries, cited by Judge Hyatt in support of his decision to split some counties (Douglas, Adams, Arapahoe, and Eagle) and not others. (Ruling at 43)

It must be noted that ”competitiveness” is a political argument, NOT a legal or constitutional argument (since there is neither a clear definition, nor constitutional requirement, for “competitiveness”), and as such has no place in a court ruling on the constitutional or legal merits of the maps.

Given the Colorado Supreme Court’s rejection of “competitiveness” as a factor taking precedent over clear constitutional and statutory guidelines in remanding state legislative district maps back to the Colorado Reapportionment Commission for corrections and revisions, it would be utterly inconsistent of the court to reject “competitiveness” as a primary factor in state legislative redistricting while upholding the notion for Colorado’s Congressional districts.

Sadly, the entire spectacle of judicial imposition of a political solution to Colorado’s Congressional District representation could have been prevented had the state legislature carried out their constitutionally-mandated responsibility to pass redistricting legislation instead of sending it to the courts last Spring.

Congressional District Google Earth maps (requires Google Earth download): Moreno/South Map (Google Earth)

Additional references:

  • Constitutional Provisions Controlling Reapportionment/Redistricting (official Colorado state website, which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)
  • Redistricting in Colorado (Ballotpedia site – although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site – contributions come from a variety of sources and are frequently edited – proceed with some skepticism)

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

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

Ultimately, though – it’s worth the effort.

Colorado Congressional Redistricting Decision goes to the Dems: Denver District Court Judge Robert Hyatt approves ‘Moreno map’

Published November 11, 2011 | By CTBC Director

In a surprise move announced at the close of Thursday’s business day, Denver District Court Judge Robert Hyatt approved the Democrat “Moreno Map” for Colorado’s Congressional districts – “a blow to Colorado Republicans that could affect election outcomes for the next decade.”

On the macro (statewide) level, the most noticeable changes:

  • 2nd Congressional District: adds Larimer County, southern Jefferson County, drops half of Eagle County
  • 3rd Congressional District: adds Lake County, most of Eagle County; drops Las Animas and Otero counties
  • 4th Congressional District: loses Larimer County (to 2nd), gains Las Animas and Otero counties (from 3rd) and Douglas & Elbert counties (from 6th) along with most (the non-urban areas) of Arapahoe and Adams counties
  • 5th Congressional District: drops Lake County (to 3rd CD)
Moreno Map statewide

Moreno Map statewide

Some of the greatest changes were made to Denver metro-area districts:

  • 1st Congressional District: picks up chunks of Arapahoe and Jefferson counties along the southern edge of the current district
  • 6th Congressional District: loses Elbert County, Douglas County (except Highlands Ranch) and the non-urban majority of Adams and Arapahoe counties to 4th CD; gains all of Aurora, northern Adams County suburbs (from 7th CD)
  • 7th Congressional District: loses all of Aurora & northern Denver-metro (Adams County) suburbs to 6th CD; gains parts of Jefferson County
Moreno Map metro magnified

Moreno Map metro magnified

(UPDATE: the Denver Post has created a “find your proposed district” application)

Judge Hyatt’s ruling relies heavily on the “competitiveness” trope advanced by the Democrat plaintiffs as a consistent theme in both legal arguments and in the public-relations “framing” of the case in the media and public discussions.
(H/T Law Week Colorado for posting the court’s ruling online)

However, it must be noted that reliance on ”competitiveness” is a political argument, NOT a legal or constitutional argument (since there is neither a clear definition, nor constitutional requirement, for “competitiveness”), and as such has no place in a court ruling on the constitutional or legal merits of the maps.

Nevertheless, despite the fact that the Colorado Supreme Court consistently critiqued the notion of “competitiveness” as a basis for legal rulings during hearings on state legislative district maps, Denver District Court Judge Hyatt repeatedly cited “competitiveness” as a basis for ruling in favor of the ‘Moreno Map’, based on party registration numbers, not voting performance:

“the court gave no weight to information from prior elections” (Ruling at 43)

Judge Hyatt also relied heavily on the “discretionary factors” facilitated by the “Mary-mandering” legislation passed at the close of the 2010 legislative session in what has been confirmed by events as a preparatory move in the plan to send the issue of redistricting to the courts all along:

The General Assembly amended this statute in 2010 to repeal the statutory prohibition, adopted in 2004, against the use of political data such as party registration and so-called “political performance” data. (Ruling at 43)

The 2010 legislative changes not only added “political” or “non-neutral” data to the list of factors which could be considered by the courts, but also removed legal guidance on prioritizing other factors, allowing the judge to pick and choose the remaining “discretionary” factors according to his personal preference – which he did:

Of the discretionary factors specifically listed in the statute, the court finds that no factor is more important than a district’s communities of interest. (Ruling at 43)

Why should the factor of “community of interest” – subject to shifting and subjective definition – trump any of the other more objective and quantifiable factors set forth in Colorado statute?

Statutory Criteria for Congressional Redistricting

Colorado law [C.R.S. 2-1-102(1)(b)] also sets forth a number of discretionary criteria that this Court may consider.  In Congressional redistricting litigation, a court:

May, without weight to any factor, utilize factors that include but (are) not limited to:

(I) The preservation of political subdivisions such as counties, cities, and towns.  When county, city or town boundaries are changed, adjustments, if any, in districts shall be preserved by law.
(II) The preservation of communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors;
(III) The compactness of each congressional district; and
(IV) The minimization of disruption of prior district lines

Judge Hyatt was also selective in choosing which testimony he cited to define “communities of interest”,  further moving the ruling from the realm of legal review based on consistent standards (rule of law) into the area of arbitrary decisions by a single individual (rule by caprice) – the very antithesis of “what makes a good judge.”

(Until court transcripts are available, Clear The Bench Colorado has the most comprehensive review and summary of the congressional redistricting trial arguments and testimony available).

Although the ultimate decision on Colorado’s Congressional District maps will be made by the Colorado Supreme Court (following the inevitable appeal), the district court’s decision has at a minimum framed the terms of the debate and set the conditions for the eventual outcome.

Sadly, the entire spectacle of judicial imposition of a political solution to Colorado’s Congressional District representation could have been prevented had the state legislature carried out their constitutionally-mandated responsibility to pass redistricting legislation instead of sending it to the courts last Spring – an outcome pursued by yesterday’s winners fully expecting a “friendly” set of judges.

Additional references:

  • Constitutional Provisions Controlling Reapportionment/Redistricting (official Colorado state website, which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)
  • Redistricting in Colorado (Ballotpedia site – although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site – contributions come from a variety of sources and are frequently edited – proceed with some skepticism)

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

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

Ultimately, though – it’s worth the effort.

Colorado Supreme Court approves 40% tax increase

Published November 4, 2011 | By CTBC Director

Although Colorado voters decisively repudiated a recent attempt to raise taxes at the ballot box this week (the “Proposition 103″ tax increase initiative, which at least did seek “voter approval in advance” as required by the Colorado Constitution, Article X, Section 20 – the ‘Taxpayer’s Bill of Rights’), on the day before votes were tallied, the Colorado Supreme Court approved what may have been the largest (percentage) tax increase in the history of Colorado – increasing a severance tax (on energy production) by over 40%.

Sadly, this latest ruling only continues a pattern of judicial assault on the rights of Colorado taxpayers that is both politically motivated (the court’s majority has frequently expressed antipathy towards the Colorado Constitution’s Article X, Section 20 – the ‘Taxpayer’s Bill of Rights’ – despite their oath to support and uphold the entire Constitution, not just the parts they like) and entirely predictable.  (Indeed, Clear The Bench Colorado forecast the court’s decision over a year ago in this article):
Colorado Supreme Court prepares additional assault on taxpayer rights, hearing another stealth tax increase case (31 August 2010)

The Colorado Supreme Court’s ‘Mullarkey Majority’ has now gone 0-16 in upholding TABOR, a “perfect season” establishing them as the 2008 Detroit Lions of jurisprudence
(Mullarkey’s replacement, Monica Marquez, recused herself from the decision due to her role as a former Deputy Attorney General arguing the case for violating taxpayer’s rights before the Court of Appeals)

Some of the most prominent examples of the court’s “perfect” record:

Following the pattern of earlier anti-TABOR decisions, the majority opinion tortures statutory language to extract a tenuous justification for a constitutional end-run in favor of tax increases, overturning a Colorado Court of Appeals ruling that was a model of clarity and conciseness in legal language:
so simple, even a caveman could understand it:

We hold that TABOR precludes the challenged coal severance tax adjustments. Our holding is based on a simple syllogism:

(1) TABOR prohibits increasing tax rates without voter approval. Colo. Const. art. X, § 20(4)(a); Nicholl v. E-470 Public Highway Auth., 896 P.2d 859, 867 (Colo. 1995).

(2) Applying the statutory formula increased the coal severance tax rate (initially from $0.54 to $0.76 per ton) without voter approval.

(3) Therefore, TABOR was violated.

So how did the Colorado Supreme Court get around this clear, concise language?

The ruling majority declared that the tax increase was merely an “adjustment” to the “tax rate formula” that the statutory language “required” the Department of Revenue to increase – a “non-discretionary” mechanism (despite the undisputed fact that the Department of Revenue did exercise discretion – and complied with the Constitution by not raising the rate – for 15 years previously).  The majority likewise ignored the well-established legal principle that constitutional language trumps statutory language, as Justice Coats pointed out in his dissent:

Not only is TABOR a constitutional provision to which legislative acts are subservient, rather than merely another statute itself, but its intent to limit the legislative taxing power by subjecting it directly to popular approval, see Bickel v. City of Boulder,885 P.2d 215, 226 (Colo. 1994), and to ‘s upersede” all conflicting state statutes could not be more clear, see Colo. Const. Art X, sec. 20 (1) (“All provisions are self-executing and severable and supersede conflicting state constitutional, state statutory, charter, or other state or local provisions.”). Starting November 4, 1992, the state is expressly required to have voter approval in advance for any tax rate increase that does not fall within a TABOR exception.

Colo. Const. Art X, sec. 20(4)(a). The language of TABOR simply does not admit of any construction permitting future tax rate increases without the constitutionally required voter approval, whether or not they were mandated by statutes enacted before the constitutional amendment, and this court has never suggested otherwise.

Despite the clearly-expressed intent of the voters, both in decisively repudiating a tax increase at the polls (in 2011) and in establishing constraints of the power of government to arbitrarily and without asking raise taxes (or “increase revenue” by any “tax policy changes”) by adopting a constitutional amendment (the “Taxpayers Bill of Rights” in 1992), the Colorado Supreme Court continues its unbroken streak of raising taxes by judicial decree, usurping the power and authority both of the legislature and of “We The People” – the ultimate sovereigns.

As Justice Coats made clear in his dissent:

It simply strains credulity beyond the breaking point to assert, as does the majority, that raising the tax on every ton of extracted coal from fifty-four to seventy-six cents is not a tax rate increase.

A tax increase by any other name (be it “elimination of existing exemption“, “fee“, or now “adjustment“) still smells as foul.

A violation of your right to have a say before having your money taken from you is just as bad (arguably, much worse) coming from the courts as coming from the executive or legislative branches  - your wallet can’t tell the difference.

Know your rights – as a Citizen – and defend them.

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.

In Review: Colorado Congressional Redistricting Trial

Published October 31, 2011 | By CTBC Director

The legal battle to re-draw the boundaries of Colorado’s Congressional Districts - sent to the courts for the fourth consecutive decade at the end of the legislative session in May 2011 after the legislature (specifically the state senate) failed to do its job by passing redistricting legislation as required by the Colorado Constitution – concluded trial proceedings in Denver District Court today (Monday, Halloween Day) with closing statements and the introduction of new and revised Congressional District maps.

democrat-statewide-20111031-crop

(New Democrat redistricting map – statewide)

Sitting through the hearings and witness statements is admittedly dry stuff, with topics ranging from pine beetles and educational funding (which Democrat attorney Mark Grueskin claimed is what ties Boulder and Larimer counties together into a common “community of interest”) to water and agriculture issues (which Democrat attorney Mark Grueskin claimed were issues tying Douglas County and the Eastern Plains together into a common “community of interest”), and transportation funding (which witnesses from Douglas County – including County Commissioner Jill Repella and county lobbyist Ken Butler – advanced as evidence of common ties between Douglas and the other Denver Metro counties).

Witnesses at the Congressional Redistricting trial included a “Who’s Who” of the Colorado political scene – including over half of Colorado’s Congressional Delegation (CD2 Congressman Jared Polis, CD3 Congressman Scott Tipton, CD6 Representative Mike Coffman, and CD7 Representative Ed Perlmutter) along with other political luminaries such as CU Regent Michael Carrigan (D-Denver/CD1) (just re-elected in 2010) and former director of the Department of Higher Education Rico Munn (for the Democrats) and former Deputy Treasurer Dick Murphy and former state representative candidate (and current Denver County GOP Chair) Danny Stroud (for the Republicans).

As might be expected with so much at stake, the attorneys participating in the trial were also a “Who’s Who” of the state’s legal profession: Democrats were represented by a team headed by perennial political litigator Mark Grueskin (astute observers of Clear The Bench Colorado (or of Colorado politics in general) may recall Mark Grueskin from his role in establishing a shadowy and well-funded special-interest group to counteract the Clear The Bench Colorado judicial accountability efforts during the 2010 judicial retention elections); Republicans were represented by a team led by former Colorado Solicitor General Richard Westfall (who also contested the constitutionality of the Colorado “Mill Levy Tax Freeze” case, first successfully in Denver District Court in May 2008 before being overturned in a highly political decision by the Colorado Supreme Court in March 2009); the Colorado Latino Forum, which introduced a separate set of maps, was represented by Gina Rodriguez; and the City of Aurora, which intervened in the case in order to carve out an Aurora-centric district (keeping the city, although split between multiple counties, in a single congressional district) was represented by former state senator and CD7 candidate Mike Feeley (apparently taking a break from his participation in the “Fenster’s Folly” anti-TABOR lawsuit pursued against the state of Colorado in federal court).  A wag reportedly opined that the sum of billable hours over the several weeks of the Congressional Redistricting trial could feed, clothe, and bathe the “Occupy Denver” crowd for a year…

Media coverage of the trial ranged from the trivial (Denver Post Lynn Bartels tweeting about former Congressman Bob Beauprez having the zipper down on his jeans) to the mildly humorous (comments on repeatedly spilled water and “a huge, industrial-size roll of paper towels” along with Democrat attorney Mark Grueskin’s characterization of the GOP “Minimum Disruption” map as a “light-jazz band”) to the occasionally informative (a background piece on presiding Denver District Court Judge Robert Hyatt, “Colorado redistricting judge unafraid to issue controverial decisions“).

An interesting sideline to the overall Colorado Congressional Redistricting narrative was provided by the shifting fortunes of state senator Brandon Shaffer, running for Congress in CD4 in 2012, as district maps submitted by his own party first drew him out of, then later back within, the boundaries of the district (prompting him to submit his own map) – as chronicled in a series of article in the Colorado Peak Politics political website:

(NOTE: although residency within the district is not a requirement to run for Congress, it is certainly a political disadvantage to live outside the district one is seeking to represent)

The main themes of the Congressional Redistricting trial, however, were attempts by all parties to argue the constitutionality of the various map proposals.  All parties acknowledged the federal and state constitutional requirements in general terms, but sought to emphasize different aspects in making their case.  All sides attempted to define “communities of interest” via witness testimony (or refute the commonality of interests claimed by the other side during cross-examination).

For example, Democrat witnesses Michael Carrigan and Rico Munn advocated for combining Boulder and Larimer counties as a single “community of interest” based on the presence of Colorado’s two largest institutions of higher education in each (CU in Boulder, CSU in Fort Collins).  GOP witness Dick Murphy countered that the cultural differences between the two schools – to say nothing of the two counties – diverged sharply between “liberal” CU/Boulder and more traditionally rural/conservative CSU/Fort Collins.  (Ed.: Plus, how could a combined district deal with a candidate unable to take a stand on football matchups between the two universities, or alienating half the district?)  GOP attorney Westfall also pointed out that both CU and CSU have multiple campuses around the state, and that multiple institutions of higher education exist around the state in different congressional districts, eliminating any unique claim to a “Higher Ed” community of interest centered around Boulder and Larimer counties.

Bottom Line?

The GOP argument (as well as the title of the map proposal) centered around the theme that voters should suffer “minimal disruption” to their current congressional representation.  GOP attorneys emphasized the “clear legal guidelines” and precedents (including the rightly-maligned 2003 Salazar v. Davidson case when the Mullarkey Court usurped the legislative role in redistricting – a responsibility willingly abdicated by the legislature this year) binding upon the court.

The City of Aurora sought to be contained whole within a single congressional district (despite being split between counties, which enjoy a higher constitutional precedence for remaining intact than municipalities).  Interestingly, both the modified Democrat and Republican maps appear to have accepted this premise.

The Colorado Latino Forum maps were roundly panned by all sides – the original maps (which paired Scott Tipton and Ed Perlmutter in a single district, ranging from Cortez to Lakewood) were criticized both by Republicans:

“When I saw that I thought, ‘They can’t possibly be serious,’ ” said state Sen. Greg Brophy, R-Wray. “We had public testimony earlier this year against this kind of proposal.”

as well as by Democrats (even after modifications to the original maps):

“When a map is driven by the issue of race, whatever the race, it becomes suspect.” (Democrat attorney Mark Grueskin)

(The Latino Forum’s lawyer returned the favor, “ripping” both Republican and Democrat maps)

The Democrat argument sought to create or define new “communities of interest” but most prominently promoted the principle of “competitiveness” as a basis for determining district boundaries.  However, it must be noted that reliance on ”competitiveness” is a political argument, NOT a legal or constitutional argument (since there is neither a clear definition, nor constitutional requirement, for “competitiveness”) – even notwithstanding the “Mary-mandering” legislation passed at the close of the 2010 legislative session in what has been confirmed by events as a preparatory move in the plan to send the question of redistricting to the courts all along (instead of being resolved in the legislature, as mandated by the Colorado Constitution, Article V Section 44,

Text of Section 44:Representatives in Congress.
The general assembly shall divide the state into as many congressional districts as there are representatives in congress apportioned to the state by the congress of United States for the election of one representative to congress for each district. When a new apportionment shall be made by congress, the general assembly shall divide the state into congressional districts accordingly.

Judge Hyatt, who has a reputation as being hardworking, independent-minded and well-versed in the law, is not expected to take long to reach a decision – and may have already reached some conclusions on the merits of the arguments advanced during trial, as indicated by an aside uttered casually during the second week of the trial, stating (and this may be more a paraphrase than a precise quote)
“Is there anything being presented here as testimony that is likely to influence my decision?”

In any event, all parties have indicated that whatever the outcome, the case is almost certain to be appealed to – and ultimately decided by – the Colorado Supreme Court.

Additional references:

  • Constitutional Provisions Controlling Reapportionment/Redistricting (official Colorado state website, which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)
  • Redistricting in Colorado (Ballotpedia site – although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site – contributions come from a variety of sources and are frequently edited – proceed with some skepticism)

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

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

Ultimately, though – it’s worth the effort.

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