Mill Levy Tax Colorado

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

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

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

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

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

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’

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.

In Review: Colorado Congressional Redistricting Trial

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.

Colorado Supreme Court Justice Alex Martinez announces impending resignation, takes city job in Denver

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

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

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

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

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

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

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

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

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

Ultimately, though – it’s worth the effort.

Midweek Update: Governor Hickenlooper, AG Suthers seek dismissal of ‘political’ anti-TABOR lawsuit (Fenster’s Folly)

Predictably (indeed, Clear The Bench Colorado predicted both motion and grounds almost three months ago), Governor Hickenlooper and Attorney General John Suthers filed a Motion to Dismiss the anti-TABOR lawsuit (“Fenster’s Folly“) this week, noting that the lawsuit raises a ”political question” rather than a legal issue and is therefore (as the U. S. Supreme Court has previously ruled, several times) “non-justiciable” (meaning, a policy issue not to be decided by the courts).

The state’s Motion to Dismiss Plaintiffs’ Substitute Complaint echoes the same points and references raised in Clear The Bench Colorado‘s review of the lawsuit when it was filed back in May of this year (“TABOR, citizen initiatives targeted by frivolous Fenster lawsuit“):

I. All the claims asserted by Plaintiffs present political questions that the U.S. Supreme Court has long held to be nonjusticiable. The Plaintiffs ask this Court to do something the Supreme Court has consistently refused to do: overthrow a state law for being too democratic.  Not only has the Court never done such a thing, it has repeatedly held that claims of this sort may not be entertained by federal courts. [Motion to Dismiss, p.5-6]

The Motion proceeds to highlight the danger of judicial activism that would inevitably result:

Beyond the “lack of judicially discoverable and manageable standards,” the claims presented here would entangle the Court in policy determinations it must avoid. [Motion at 8]

Noting further the hypocrisy of the plaintiffs’ argument that “ some direct democracy should be upheld, so long as it results in their preferred policy” [Motion at p.8] the state concludes

It would be difficult to imagine a more glaring example of “a policy determination of a kind clearly for non-judicial discretion.”  Baker, 369 U.S. at 216.

Noting the “narrow and limited authority” of judges, the Motion cites an earlier Federal court ruling:

Our entire System of Government would suffer incalculable mischief should judges attempt to interpose the judicial will above that of the [coordinate branches], even were we so bold as to assume that we can make better decisions.”) [ Pauling v. McNamara, 331 F.2d 796, 799 (D.C. Cir. 1963)]

Now where have we heard that before?

In fact, as the Motion further elucidates,

B. The Supreme Court has specifically held that claims like Plaintiffs’, based on citizen initiative power to tax, are nonjusticiable political questions [Motion at 11]

In a deliciously ironic twist, the Motion even cites the Colorado Supreme Court’s arrogation of legislative authority to the judicial branch in the Salazar v. Davidson redistricting case:

In Salazar, the court extended this rationale to include the courts.  79 P.3d at 1232-33, 1236-37.  Neither of these decisions has been disturbed.  See Colorado General Assembly v. Salazar, 541 U.S. 1093 (2004); Lance v Coffman, 549 U.S. 437 (2007) (refusing to address challenges to Salazar).  So even if Plaintiffs were correct that only a state’s “legislature” can enact laws, these cases require inclusion of the people (not to mention the judiciary) within that concept.

The remainder of the Motion addresses issues of Standing (in brief, the Plaintiffs don’t have any) to bring the case – which, while important, will most likely induce acute MEGO (“My Eyes Glaze Over”) in the typical (lay) reader and will not be recounted here.

Clear The Bench Colorado‘s sole critique of the state’s Motion to Dismiss is that the state did not seek attorney’s fees from the plaintiffs under C.R.S. 13-17-101 (to offset costs to taxpayers) for filing what is clearly a ”frivolous, groundless, and vexatious” lawsuit.

Although an award of attorneys’ fees is rare (Clear The Bench Colorado won just such an award against “Colorado Ethics Watch” – CEW, pronounced “sue”, it’s what they do – one of only a few in the last decade) it can be done (although actually collecting on the judgement may take months, or years), when opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.

Such abuse of the courts for political posturing can and should be discouraged…

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

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

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

Ultimately, though – it’s worth the effort.

Life in the FASTER lane – updates on the Colorado Car Tax

Surely make you lose your mind…

The Colorado Car Tax (er, “fee”) increase – ironically dubbed ‘FASTER’ – passed in the 2009 legislative session made another lap in media coverage this past week with a broadcast on the ‘Devil’s Advocate‘ television program and publication of a pair of “Issue Backgrounder” papers.

The “Issue Backgrounder” papers each address a specific aspect of the FASTER legislation, focusing in on the “Bridge Enterprise” (a ‘government-owned business’ within the Colorado Department of Transportation, or CDOT).  One paper addresses how the “Bridge Enterprise” has raised $300M in debt without (constitutionally-required) voter approval (and the long-term implications for Colorado’s fiscal stability); the other more generally addresses how the Colorado Bridge Enterprise contravenes the Colorado Constitution.

Both papers are well worth reading, and provide additional detail on just how bad even this single aspect of the FASTER Colorado Car Tax (er, “fee”) is for Colorado citizens.

However, both papers together only tell half of the story (almost literally).  The ‘Colorado Bridge Enterprise’ is only one of two new ‘government-owed businesses’ established by the FASTER legislation (the other being the ‘Colorado Transportation Enterprise’ charged with collecting and spending the ‘road safety surcharge’ tax – er, “fee”) .  Both “enterprises” are overseen by an 11-member appointed (ergo, unaccountable to the public) board (coincidentally, the same 11 people who make up the Colorado Transportation Commission).  Significantly (although unfortunately unremarked in both papers), both ‘enterprises’ are also authorized to use eminent domain to seize private property.

The television broadcast is informative and entertaining as well, but unfortunately also misses significant parts of the story.

The Colorado Car Tax – It’s Worse Than You Think

Also unremarked in both papers – and on the television broadcast as well – is the fact that FASTER actually comprises multiple tax increases (er, “fees”) in a single piece of legislation, blatantly violating the constitutional requirements to “receive voter approval in advance” for “any new tax, mill levy above that for the prior year, valuation for assessment ratio increase for a property class, or extension of an expiring tax, or a tax policy change directly causing a net tax revenue gain to any district.” (Colorado Constitution, Article X, Section 20 – the ‘Taxpayer’s Bill of Rights’).  The “bridge fund fee” and the “road safety surcharge fee” increase each year for three years (yep, that’s 3 tax increases in one!), in addition to imposing an entirely separate “fee” on car rentals as well.  Oh, and don’t forget the “late fees” too…

But all of this is necessary “to preserve our crumbling transportation infrastructure,” right?  That was the justification for passing the bill – along with claims that any and all “fees” collected “shall be used exclusively for the construction, maintenance, and supervision of the public highways of the state.”   Says so right in the legislative language (43-4-810), so it must be true, correct?

Not so much.  The dirty little secret of the FASTER bill is that many of the taxes (er, “fees”) collected don’t go towards the construction or maintenance of roads or bridges at all, but for “multi-modal and demand-side transportation solutions” – such as the desire of certain state Senators for streetcars in Denver – justified by other language in a following section (43-4-812):

43-4-812. Use of user fees for transit – legislative declaration.
(2) THE GENERAL ASSEMBLY HEREBY FINDS AND DECLARES THAT THE FUNDING OF TRANSIT-RELATED PROJECTS AUTHORIZED BY SUBSECTION (1) OF THIS SECTION CONSTITUTES MAINTENANCE AND SUPERVISION OF STATE HIGHWAYS BECAUSE IT WILL HELP TO REDUCE TRAFFIC ON STATE HIGHWAYS AND THEREBY REDUCE WEAR AND TEAR ON STATE HIGHWAYS AND BRIDGES AND INCREASE THEIR RELIABILITY, SAFETY, AND EXPECTED USEFUL LIFE.

In fact, the bill MANDATES state spending of $10 Million per year on “transit-related projects.”

It’s an outrageous semantic shell game – and a blatant violation of your constitutional rights.

To sum up: the “FASTER” car tax increase raised vehicle registration fees by $22.50-55 per vehicle, including a “road safety surcharge fee” of $16-$39 per vehicle, PLUS a “bridge fund fee” of $13-$32 per vehicle (phased in at 50%/75%/100% each of the first 3 years ).  Plus mandatory “late fees” of $25/month (capped at $100) – for all “vehicles” (including trailers barely even worth that much).

All while creating two new ‘government-owned’ bureaucracies with power to spend, borrow, & seize private property unconstrained by the Taxpayer’s Bill of Rights and not accountable to the people.

Oh, and increasing mandatory spending by over $10 Million per year on purposes other than roads, bridges, or other transportation infrastructure used by those paying the “fees.”

Most of the politicians who did this to you – including Governor Bill RitterSenate sponsor Dan Gibbs, and House sponsor Joe Rice – have paid the political price, either quitting office or being defeated at the ballot box; however, the real culprits, without whom none of this would have been possible (thanks to a Nov. 2008 court ruling to allow “fees” to act like taxes, in violation of your constitutional rights) escaped justice (except for Chief Justice Mary Mullarkey, who quit rather than face the voters, the remaining members of the Colorado Supreme Court who aided and abetted FASTER were retained in office for another 10-year term).

Unfortunately, these politicians in black robes remain ‘at large’ and able to continue to assault your constitutional rights for years to come.

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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