Michael Bender

Colorado Supreme Court Chief Justice Bender delivers final ‘State of the Judiciary’ address before Colorado legislature

Published January 13, 2013 | By CTBC Director

Colorado Supreme Court Chief Justice Michael Bender delivered his final ‘State of the Judiciary’ address before the Colorado legislature on Friday (11 January 2013).
[Justice Bender faces mandatory retirement as he reaches the age of 72 next year]

Justice Bender’s speech [read full text here] addressed 3 major themes:

  1. the importance of citizen’s trust in the rule of law in our democracy.
  2. the way in which the judicial branch in Colorado furthers the rule of law for our citizens.
  3. the importance for the courts and the legal community to understand the needs of the public they serve and to collaborate to create programs that address those needs.

Justice Bender’s opening remarks are notable for his nod to principle:

Trust in the rule of law distinguishes our society from many others around the world. When the blind Chinese lawyer and activist, Chen Guangcheng, was allowed to leave China to study in the United States, he noted that China does not lack laws, but it lacks the rule of law. The legitimacy of government depends on the fair, impartial, and reliable administration of the laws.

Courts serve the people of the state by resolving disputes, protecting individual rights, and delivering justice in criminal and civil cases. To ensure a just society Courts must tailor the fair, effective, and efficient delivery of justice to fit each individual case. This mission requires us not only to reach a fair and just outcome but also to do so in a way that is perceived as being fair to all sides. The perception of fairness is as important as the fairness of the outcome.

Clear The Bench Colorado not only embraces, but actively advances the principle of “rule of law” – but notes that Chen Guangcheng’s description of China (as a nation that “does not lack laws, but it lacks the rule of law”) might be taken to apply equally to what’s becoming of the United States.

Justice Bender claims that the Colorado judiciary “reflects [Daniel] Webster’s ideal” – that

“justice is the great interest of man on earth. It is the ligament which binds civilized beings and civilized nations together.”

As evidence, he cites “[T]hree features [that] distinguish our judiciary”

    1. strong bipartisan support from the General Assembly
    2. central financing of courts and probation systems
    3. non-partisan merit-based selection process and “rigorous” evaluation of judicial performance by “independent” commissions.

However, Bender presents a flimsy case for an “ideal” Colorado judiciary.

“Bipartisan” support and central financing are irrelevant to whether (or not) the judiciary achieves the standard of “fairness” and upholds the rule of law.

Moreover, Colorado’s “merit-based” judicial selection process falls short of achieving the standards of transparency and accountability we should expect from our vitally important 3rd branch of government, and remains controlled by legal-establishment special interests out of public view.

Even worse, Colorado’s official system of evaluating judicial performance is anything but “rigorous” – the evaluation commissions, having no requirement for partisan balance (in contrast to the judicial selection commissions) are not infrequently dominated by one party and/or by special-interest groups, giving rise to charges of bias, and more broadly panned for failure to provide substantive evaluations of judicial performance, as noted in this commentary by a former performance review commissioner:

There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters.  If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do.  Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations.  Some commentators and observers have denigrated the narratives as a “rubber stamp” exercise for retaining judges.

Chief Justice Bender wrapped up his address by listing a number of initiatives that “tap into existing community resources and sometimes private dollars to leverage public funding,” including an increase of “problem-solving courts” (from 61 to 72), a “civil action pilot program” for resolution of business disputes, along with some personnel and administrative efficiencies achieved statewide  (including a court-run civil e-filing system).  He closed with effusive praise for the legislature’s “bipartisan support” for the new Colorado Judicial Center – funded by taxpayers to the tune of $258M by a combination of debt (er, “non-debt”) and new “fees” to access the courts.

Actions speak louder than words; and although Bender’s speech gives lip service to the primacy of the rule of law, his actions on the bench have demonstrated the opposite.  Indeed, Bender has been one of the most egregious perpetrators of putting personal views (his own) above the letter of the law.

The contrast between rhetoric and reality is the true “State of the Judiciary” in 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.

Colorado Supreme Court Nominating Commission seeks applicants for pending Colorado Court of Appeals vacancy

Published August 2, 2012 | By CTBC Director

The Colorado Supreme Court Nominating Commission is soliciting applicants to fill a pending vacancy on the Colorado Court of Appeals, due to the resignation of Judge Robert Russel (effective 3 Nov 2012).

Any qualified elector of the state of Colorado who is not a convicted felon and has been licensed to practice law in the state for 5 years may apply to become a judge (Colorado Constitution, Article VI Section 8, Qualifications of Judges).

From the vacancy announcement, as reported by Law Week Colorado:

Application forms are available from the office of the ex-officio chair of the nominating commission, Chief Justice Michael L. Bender, 101 W. Colfax, Suite 800, Denver, CO 80202; and the office of the district administrator of any of the 22 judicial districts. Applications also are available at www.courts.state.co.us/Careers/Judge.cfm.
One original, signed application form, along with an identical copy of the application stored as a PDF file must be received by the ex-officio chair by 4 p.m. Tuesday, Aug. 28. Late applications will not be considered.
Any person wishing to suggest a candidate to fill the vacancy may do so by letter to be submitted to any member of the nominating commission, with a copy to the ex-officio chair, no later than Aug. 21.
Applications will be kept confidential, except that the nominating commission shall disclose the names, work addresses, and work telephone numbers of the three nominees submitted to the governor.

The Colorado Supreme Court Nominating Commission will convene 24-25 September 2012 to review all applications, interview selected applicants, then vote to select 3 nominees who will be submitted to the governor for appointment to the Court of Appeals.  Once the 3 nominees have been selected, a public review and comment period is typically observed.  (Current example: Montrose County Court vacancy)

Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to judicial office, instead of more politicians in black robes.

This is particularly important in selecting the next statewide appellate court judges – many of whom all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.

Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our judges are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.

Our view: an informed citizenry and active citizen participation is vital in restoring accountability and transparency to the 3rd branch of state government, the judicial branch – most particularly for the Colorado 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.

Colorado Supreme Court Nominating Commission position open for 3rd Congressional District (attorneys only need apply)

Published July 27, 2012 | By CTBC Director

The Colorado Judicial Branch, “[o]n behalf of Gov. John Hickenlooper, Attorney General John Suthers and Chief Justice Michael L. Bender,” recently announced

opening of the application period for a vacancy on the Supreme Court Nominating Commission.
Applications for the volunteer position, which must be filled by an attorney residing in the 3rd Congressional District, will be accepted until Aug. 3, 2012. There is no political party affiliation requirement for this vacancy.

Under Colorado’s “merit selection and retention” system of filling judicial offices, the judicial nominating commissions – at either the district level, or statewide – represent one of the few opportunities for Colorado citizens to have a say in the composition of our courts.  In essence, the commissions are the means by which Citizens can become involved in choosing our judges.

At the district level (Colorado is divided into 22 judicial districts),

Each judicial district nominating commission consists of seven citizens residing in that judicial district. No more than four members can be from the same political party, and there must be at least one voting member from each county in the district. [Source: Colorado State Courts,  Judicial Nominating Commissions]

At the statewide level (including both the Colorado Supreme Court and Court of Appeals),

The Supreme Court Nominating Commission recommends candidates to serve as judges for the Supreme Court and the Court of Appeals. The chief justice of the Supreme Court chairs the commission and is a non-voting member. This commission includes one citizen admitted to practice law in Colorado and one citizen not admitted to practice law residing in each of the state’s seven congressional districts, and one additional citizen not admitted to practice law in Colorado.  [Total of 15 commissioners] (Source: Judicial Nominating Commissions)

From the press release:

Article VI, Section 24 of the Colorado Constitution requires that for any nominating commission, “no more than one-half of the commission members plus one, exclusive of the Supreme Court justice serving as ex officio chair, shall be members of the same political party.” The Constitution also requires that at least one commissioner reside in each of the counties of the district. Applicants must reside in the judicial district – or, for the Supreme Court Nominating Commission, the Congressional District – to which they are applying for appointment.

Application forms may be found on the Colorado Judicial Department web site at http://www.courts.state.co.us/Courts/Supreme_Court/Nominating.cfm. Completed application forms may be mailed to Cheryl Stevens, Colorado Supreme Court, 101 W. Colfax, Suite 800, Denver, CO 80202. They also may be sent via email to cheryl.stevens@judicial.state.co.us.

Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to judicial office, instead of more politicians in black robes.

This is particularly important in selecting the next Colorado Supreme Court justices – who all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.

Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our supreme court justices are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.

Our view: an informed citizenry and active citizen participation is vital in restoring accountability and transparency to the 3rd branch of state government, the judicial branch – most particularly for the Colorado 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 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 Colorado Court of Appeals rejection of CU Gun Ban

Published March 6, 2012 | By CTBC Director

The Colorado Supreme Court rightly rejected the specious argument advanced by the attorney for the CU Board of Regents (which voted 5-4 to appeal the Colorado Court of Appeals rejection of CU Gun Ban), who argued that the CU Board has “constitutional authority” to “enact legislation governing the campus” – essentially, putting the CU Board of Regents “above the law” of the state of Colorado.

The supreme court holds that the Concealed Carry Act’s comprehensive statewide purpose, broad language, and narrow exclusions show that the General Assembly intended to divest the Board of Regents of its authority to regulate concealed handgun possession on campus.  Accordingly, the supreme court agrees with the court of appeals that, by alleging the Policy violates the CCA, the Students for Concealed Carry on Campus have stated a claim for relief. Because the supreme court affirms on statutory grounds, it does not consider the Students’ constitutional claim.

The court upheld the Colorado Court of Appeals April 2010 ruling that the CU gun ban policy violates “the clear letter and intent of the statute authorizing statewide standards and universal application for concealed-carry permits:”

18-12-214. Authority granted by permit – carrying restrictions.

(1) (a) A permit to carry a concealed handgun authorizes the permittee to carry a concealed handgun in all areas of the state, except as specifically limited in this section.

The Colorado Court of Appeals could not have been more clear in upholding that view, and went further in upholding the constitutional right of Colorado citizens to bear arms in self-defense:

Because the statute expressly applies to “all areas of the state,” we conclude that plaintiffs have stated a claim for relief under the CCA. We further conclude that plaintiffs have stated a claim for relief under Colorado Constitution article II, section 13, which affords individuals the right to bear arms in self-defense.

Interestingly, the Colorado Supreme Court chose not to address the claims for relief under Colorado Constitution article II, section 13, (which affirms an individual right to bear arms in self-defense) – leaving the Court of Appeals ruling on the constitutional right intact while avoiding giving that language the imprimatur of a Colorado Supreme Court ruling.

The courts – both the Colorado Supreme Court in Monday’s ruling, and the Colorado Court of Appeals in its more sweeping April 2010 ruling were right on the law, and reinforced the right policy, too.

There is NO compelling state interest to bar responsible adults (Colorado CCW permits can only be obtained by people 21 years or older, with a clean criminal and mental health background check passed, who obtain training in both physical and legal aspects of using firearms) the exercise of a fundamental right.

From a “safety” standpoint, barring guns from college campuses places students, staff, faculty, and visitors at greater risk of criminal predation, as  ”gun free zone” equals “target-rich environment” for criminals.

Further, there has been NO documented instance of a concealed-carry permit holder misusing firearms on any Colorado college campus, as noted in the amicus brief filed by the Colorado sheriffs opposing the CU Gun Ban.

Allowing responsible adults to exercise a fundamental constitutional right – affirming the right of licensed concealed-carry permit holders to responsibly exercise their inherent right of self-defense – is not only good law, it is good policy.

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 Governor Hickenlooper announces state will appeal Denver judge’s ruling on Lobato school-funding lawsuit

Published December 22, 2011 | By CTBC Director

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:

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.

Colorado Supreme Court approves state legislative district maps resubmitted by Colorado Reapportionment Commission

Published December 12, 2011 | By CTBC Director

The Colorado Supreme Court today approved the state legislative district maps re-submitted by the Colorado Reapportionment Commission last week (adopted in a procedurally suspect manner on a 6-5 party-line vote, with “unaffiliated” Chairman Mario Carrera joining the commission’s other Democrats).

The Colorado Supreme Court’s decision is surprising, since the court had previously rejected the commission’s earlier maps for constitutional deficiencies less stark than those exhibited by the commission’s re-submitted maps.

Given the constitutional deficiencies remaining in the Colorado Reapportionment Commission’s re-submitted maps, the procedural travesty by which the maps were adopted, and the availability of a more constitutionally-consistent alternative set of maps submitted as part of the ‘Minority Report’ appeal (which the majority commissioners had attempted to suppress), rejection of the commission’s maps – particularly given the court’s rejection of the commission’s previous set of constitutionally-deficient maps – appeared to be the only outcome consistent with constitutional and statutory criteria.

It will be interesting to analyze the reasoning by which a majority on the Colorado Supreme Court reached the conclusion that these maps were constitutionally valid once the court issues its full written opinion, which should follow within a week or so.

BOTTOM LINE:

The resubmitted maps retain a veritable plethora of constitutional deficiencies (in particular, failing to achieve the minimal splits in county lines, which was the primary rationale for the court’s rejection of the commission’s previous maps).  Municipal (city) splits were also multiplied, districts were not drawn to be as “compact and contiguous” as possible, and communities of interest were ignored or broken up. Additionally, the pairing of multiple incumbents into the same district raises additional constitutional issues – and one just-discovered “glitch” (”Glitch in new Colorado legislative map could unseat senator“) in the maps would result in “essentially airbrushing [State Senator Tim Neville] from the Senate after he serves next session.”

The ‘Minority Report’ challenge ably deconstructs the constitutional deficiencies of the commission’s re-submitted maps, and presents an alternative set of maps which better meet constitutional criteria (urging the adoption of the alternate maps by court order, per precedent established under similar circumstances several decades ago, as the best and most timely option).

The court’s decision is all the more surprising given the more centrist makeup of the current Colorado Supreme Court (following the departure of former Chief Justice Mary Mullarkey and the more recent resignation of Justice Alex Martinez, replaced with Justices Monica Marquez and Brian Boatright, who just assumed his seat last week), and in the face of a set of legislative maps that were seemingly designed “out of spite” and apparently “calculated to antagonize the court.”

Unfortunately, it is possible that politics trumped law in this highly-charged case.

Additional references:

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 Reapportionment Commission ‘Minority Report’ filed as challenge to legislative district maps in Colorado Supreme Court

Published December 9, 2011 | By CTBC Director

The Colorado Reapportionment Commission (charged with drawing our state legislative districts) officially submitted state legislative district maps rammed through on a party-line vote last week (6-5, with technically unaffiliated Chairman Mario Carrera joining the commission’s other Democrats) to the Colorado Supreme Court for review late Monday (6 December).

The Colorado Supreme Court, upon receiving the commission’s resubmitted maps, quickly announced accelerated filing deadlines for the inevitable legal challenges to the maps, putting appeals on a very tight timeline.  A total of eighteen groups filed briefs by the 5:00PM Thursday deadline (exceeding the dozen briefs, including eleven challenges, filed against the commission’s previously submitted maps - maps ultimately rejected by the Colorado Supreme Court for failure to meet Colorado’s constitutional requirements).

UPDATE:

The “minority” commissioners on the Colorado Reapportionment Commission – denied a fair procedural hearing and opportunity to discuss changes, submit amendments, or even file a dissenting ‘Minority Report’ (per standard practice in past commissions) as part of the commission’s official resubmission of state legislative district maps – filed their ‘Minority Report’ as a separate legal challenge to the “official” commission maps just prior to the filing deadline yesterday.

The fact that the commission’s minority was actually forced by the Democrat majority (including officially unaffiliated chairman Mario Carrera) to file their Statement of Opposition to the re-submitted maps as a legal challenge highlights the procedurally deficient path by which the maps were rammed through the commission, as well as remaining constitutional deficiencies in the re-submitted maps:

The intentional actions of the six-member majority created an irrevocably flawed process that led to adoption of unconstitutional maps

The commissioners’ ‘Minority Report’ filing also presents alternate maps for both House and Senate that better meet constitutional criteria and non-constitutional factors, including:

  • fewer county splits
  • fewer city splits
  • better preservation of communities of interest
  • better “competitiveness” (as a whole, and by district)
  • avoiding incumbent same-district pairings
  • avoiding unconstitutional sequencing of senate district elections

As a remedy to both the procedural failings of the commission’s adoption of the re-submitted maps, and the constitutional deficiencies of the maps themselves, the ‘Minority Report’ challenge urges the Colorado Supreme Court to adopt the alternate maps submitted as the most appropriate and timely remedy – for which there is precedent (“In re Reapportionment 1982, 647 P.2d 209, 213 (Colo. 1982).”)

Because the Court is not presented with plans that are “each consistent with the constitutional requirements,” it is not faced with a choice between alternative, competing maps.  Instead, because it is left with only one set of maps consistent with the constitutional criteria, a set drawn by members of the Commission, it is appropriate for the Court to [order] adoption of those alternate maps.

BOTTOM LINE:

The resubmitted maps retain a veritable plethora of constitutional deficiencies (in particular, failing to achieve the minimal splits in county lines, which was the primary rationale for the court’s rejection of the commission’s previous maps).  Municipal (city) splits were also multiplied, districts were not drawn to be as “compact and contiguous” as possible, and communities of interest were ignored or broken up. Additionally, the pairing of multiple incumbents into the same district raises additional constitutional issues – and one just-discovered “glitch” (”Glitch in new Colorado legislative map could unseat senator“) in the maps would result in “essentially airbrushing [State Senator Tim Neville] from the Senate after he serves next session.”

The ‘Minority Report’ challenge ably deconstructs the constitutional deficiencies of the commission’s re-submitted maps, and presents an alternative set of maps which better meet constitutional criteria (urging the adoption of the alternate maps by court order, per precedent established under similar circumstances several decades ago, as the best and most timely option).

Particularly given the more centrist makeup of the current Colorado Supreme Court (following the departure of former Chief Justice Mary Mullarkey & the more recent resignation of Justice Alex Martinez, replaced with Justices Monica Marquez and Brian Boatright, who just assumed his seat last week), the court would seem likely to order the adoption of the more constitutionally-consistent ‘Minority Report’ map over the ratification of a set of legislative maps seemingly designed “out of spite” and apparently “calculated to antagonize the court.”

In any event – we expect that the Colorado Supreme Court’s reply will not be long in waiting.

Additional references:

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 Reapportionment Commission legislative district maps draw challenges, supporters before Colorado Supreme Court

Published December 8, 2011 | By CTBC Director

The Colorado Reapportionment Commission (charged with drawing our state legislative districts) officially submitted state legislative district maps rammed through on a party-line vote last week (6-5, with technically unaffiliated Chairman Mario Carrera joining the commission’s other Democrats) to the Colorado Supreme Court for review late Monday.

The Colorado Supreme Court, upon receiving the commission’s resubmitted maps, quickly announced accelerated filing deadlines for the inevitable legal challenges to the maps, putting appeals on a very tight timeline.  A total of eighteen groups filed briefs by the 5:00PM Thursday deadline (exceeding the dozen briefs, including eleven challenges, filed against the commission’s previously submitted maps – maps ultimately rejected by the Colorado Supreme Court for failure to meet Colorado’s constitutional requirements).

Many of the same county and municipal governments that had challenged the commission’s previous maps did so again, on much the same grounds – emphasizing the repeated failure of the maps to meet the Colorado constitutional criteria of minimizing county and municipal splits, maintaining compact & contiguous districts, and preserving communities of interest. (Article V, Section 47)

Interestingly, a number of non-governmental special interest groups filed amicus curiae briefs in support of the commission’s maps – including representatives of the AFL-CIO, NARAL Pro-Choice Colorado, Planned Parenthood, Mi Familia Vota & “New Era Colorado” (a Boulder-based “progressive” group).

No county or city governments filed amicus curiae briefs in favor of the commission’s maps (one county, Garfield County, filed a “does not oppose” brief)

Briefs filed in Response to 12/5/11 Plan Resubmission (Opposing):

Briefs filed in Response to 12/5/11 Plan Resubmission (Does Not Oppose):

Briefs filed in Response to 12/5/11 Plan Resubmission (Supporting):

Once receiving written briefs, the Colorado Supreme Court would normally schedule oral arguments; however, due to the extremely constrained timeline (by statute, final state legislative district maps are due to the Secretary of State for certification no later than next Wednesday, 14 December), the court could conceivably issue a decision based on the written briefs alone as early as Friday (9 December) or even over the weekend, in order to allow time for any necessary adjustments.

BOTTOM LINE:

The resubmitted maps retain a veritable plethora of constitutional deficiencies (in particular, failing to achieve the minimal splits in county lines, which was the primary rationale for the court’s rejection of the commission’s previous maps).  Municipal (city) splits were also multiplied, districts were not drawn to be as “compact and contiguous” as possible, and communities of interest were ignored or broken up. Additionally, the pairing of multiple incumbents into the same district raises additional constitutional issues – and one just-discovered “glitch” (”Glitch in new Colorado legislative map could unseat senator“) in the maps would result in “essentially airbrushing [State Senator Tim Neville] from the Senate after he serves next session.”

It would be absolutely inconsistent of a majority on the Colorado Supreme Court to approve the commission’s most recently resubmitted state legislative maps in light of these glaring constitutional deficiencies (not to mention the procedural farce by which these maps were rammed through the commission absent discussion, opportunity for amendments, public transparency, or even the inclusion of an official ‘Minority Report’ as has happened in the past).

Particularly given the more centrist makeup of the current Colorado Supreme Court (following the departure of former Chief Justice Mary Mullarkey & the more recent resignation of Justice Alex Martinez, replaced with Justices Monica Marquez and Brian Boatright, who just assumed his seat last week), the commission’s approval of a set of legislative maps seemingly designed “out of spite” and apparently “calculated to antagonize the court” may succeed in making history.

Additional references:

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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