Clear the Bench Colorado » Nancy Rice

Published by CTBC Director on 22 Dec 2011

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

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.

Commentary, PPC

Published by CTBC Director on 12 Dec 2011

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

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.

Commentary, PPC

Published by CTBC Director on 09 Dec 2011

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

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.

Commentary, PPC

Published by CTBC Director on 08 Dec 2011

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

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.

Commentary, PPC

Published by CTBC Director on 06 Dec 2011

Colorado Reapportionment Commission files new state legislative maps with Colorado Supreme Court; appeals on tight timeline

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 filing deadlines for the inevitable legal challenges to the maps, proceeding this week on a very tight timeline (briefs are due to the court by this Thursday at 5PM):

Counsel and Parties to 11SA282 -  In Re Reapportionment of the Colorado General Assembly

The Reapportionment Commission has filed its Resubmitted Plan for Districts for the Senate and House of Representatives with the Court Today, December 5, 2011, in advance of the deadline set forth in the Court’s Order of November 15, 2011.

Accordingly, the Supreme Court has Ordered that the Simultaneous Briefs are now due from the Proponents and Objectors in this matter no later than Thursday, December 8, 2011 at 5:00 PM.  A copy of the order being mailed out today is attached for your perusal.

The court order was mailed out to each of the attorneys representing the eleven challenges to the commission’s previously submitted state legislative maps (the Colorado Supreme Court rejected the earlier maps and sent them back to the commission for a re-write).  Additional interested parties - either for or against the maps - may also “intervene” by filing briefs before the deadline as well.

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 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.

Commentary, PPC

Published by CTBC Director on 16 Nov 2011

Colorado Supreme Court rejects state legislative district maps, remands to Colorado Reapportionment Commission for corrections

The Colorado Supreme Court rejected the state legislative district maps submitted by the Colorado Reapportionment Commission, remanding the maps back to the commission with instructions for addressing constitutional deficiencies.

The Colorado Supreme Court’s ruling, “ In re Reapportionment of the Colorado General Assembly,” rejected arguments putting “competitiveness” ahead of constitutional criteria for defining the boundaries of Colorado’s state legislative districts:

The supreme court holds that the finalized Reapportionment Plan is not sufficiently attentive to county boundaries to meet the requirements of article V, section 47(2), and the Colorado Reapportionment Commission has not made an adequate showing that a less drastic alternative could not have satisfied the hierarchy of constitutional criteria set forth in In re Reapportionment of the Colo. Gen. Assembly, 45 P.3d 1237 (Colo. 2002). The supreme court returns the plan to the Commission for further consideration, modification, and resubmission by 5:00 p.m. on December 6, 2011.

The court’s decision followed challenges to the commission’s maps submitted by eleven Colorado counties and other interested parties, based primarily on violations of the constitutional requirement to maintain county integrity to the extent possible.

The commission’s maps split counties more than necessary to maintain numerical parity between districts, and failed to apportion a number of “whole” state legislative districts within counties that qualified based on population.

The court also rejected the notion, advanced by Democrat plaintiffs, that “competitiveness” - a concept lacking constitutional or statutory definition -could trump constitutional criteria in drawing state legislative boundaries.

Several plaintiffs also cited the fact that the commission’s maps submitted to the Colorado Supreme Court for constitutional review were introduced at the 11th hour by the commission’s lone unaffiliated member, Chairman Mario Carrera, in substitution for other maps which had been scrutinized in public hearings over the course of the summer (one round of hearings in June, followed by another round of public hearings on maps incorporating public comment and testimony throughout the month of August).  The maps voted out of commission and submitted to the court were not subjected to public comment or testimony, and in many cases contradicted the views expressed by individual citizens and county governments.

Since the maps failed to meet the criteria set forth in the Colorado Constitution, particularly the requirement to maintain county integrity where possible, the eleven challenges filed by county governments around the state were inevitable.

Clear The Bench Colorado had the most complete and accurate coverage of last week’s hearing by the court, and even predicted the outcome (down to the 4-2 margin of decision).

Colorado Constitutional Requirements:

  • Equal population (with no more than 5% deviation;  ideal district size - Senate: 143, 691; House: 77,372) (Colorado Constitution Article V, Section 46)
  • Counties cannot be split unless necessary to achieve equal population between districts

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)

  • Municipalities may not be split unless necessary to achieve equal population between districts (Article V, Section 47(2))
  • Districts must be as compact and contiguous as possible, and consist of whole precincts

(1) Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible. Each district shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap. (Article V, Section 47(1))

  • Finally, communities of interest - ethnic, economic, cultural, demographic, trade area and geographic - are to be preserved whenever possible

(3) Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible. (Article V, Section 47(3))

Note that per a previous Colorado Supreme Court ruling (In re: Reapportionment of the Colorado General Assembly), these criteria are listed in order of priority - i.e. there’s a hierarchy of constitutional criteria which must be satisfied in order for legislative districts to pass constitutional review.

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.

Commentary, PPC

Published by CTBC Director on 09 Nov 2011

Colorado Supreme Court hears oral arguments in challenges to Colorado Reapportionment Commission legislative district maps

The Colorado Supreme Court heard arguments in the case of eleven challenges to the state legislative district maps that were approved by the Colorado Reapportionment Commission and submitted for review in early October this morning in the Old Supreme Court Chambers at the Colorado Capitol.

Many of the challenges (from across the state) arose in response to the eleventh-hour introduction of an entirely new set of maps by the commission’s sole unaffiliated member (and chair) Mario Carrera - the maps that were, in the end, approved - after earlier maps had been subjected to multiple rounds of public comment and scrutiny (beginning with meetings in Denver from 31 May to 25 July, followed by meetings around the state throughout August, and a final commission meeting on 12 September.

Although the specific examples varied somewhat, attorneys for the challengers (a variety of county government officials, from around the state) consistently cited the failure of the Commission maps to meet the constitutional criteria, particularly the requirement to maintain county integrity and allocate “whole” districts within counties Colorado Constitution Article V, Section 47(2), except as necessary to meet the equal population requirements of Colorado Constitution Article V, Section 46.

Some examples:

  • Only 43 single-county districts were formed (out of 47 possible); of the 11 most populous counties, 4 lacked full representation “whole districts.”
  • Colorado Springs, qualifying for 5.38 House seats, was instead split into 8 districts (the total number of districts for which El Paso County qualified as a whole), “fracturing” the city’s representation while failing to minimize municipal splits.
  • Weld County qualified for 3.27 House districts, but was assigned only 2 “whole” districts
  • Arapahoe County qualified for 3.98 senate districts but failed to receive 4 whole districts (while in 2002, the court rejected maps failing to assign 4 “whole” districts to Arapahoe when the county qualified for 3.87)
  • Jefferson County, qualifying for 7 House districts, was assigned only 6 “whole” districts with the remaining 66,000 population placed into 2 ’split’ districts

Attorneys for the various parties also challenged the “ripple effects” of attempting to preserve a “community of interest” for Aurora and creating “competitive” districts forcing further county splits.  The concept of “competitiveness” was frequently criticized, as an “extra finger on the scale” that is “not defined in law or the Constitution” and therefore an “illegitimate non-constitutional criterion put ahead of [actual] constitutional criteria” (particularly Article V, Section 47(2), county integrity).

An additional objection raised against the commission’s maps was the last-minute nature of the introduction and approval of the final maps without any opportunity for public input and/or comment (the commission’s chair, Mario Carrera, introduced “his” maps on Wednesday September 14th before the commission vote on Monday September 19th) citing “competitiveness” as a primary objective.

The Commission’s attorney argued that although county integrity was a high priority, “other factors may be taken into consideration” at the “discretion” of the commission.  He argued that the commission’s “discretion” is sufficient to “allow a break with the mathematical requirement to grant “whole” districts to counties.  In particular, he stressed “implications” of the Voting Rights Act (VRA) as a U.S. constitutional requirement that “supercedes” Colorado state constitutional requirements, even absent a judicial finding or documented evidence that VRA violations had occurred.  (”Supposition” or “good-faith” inference of potential VRA violations was argued to be sufficient).

Several questions asked by the Colorado Supreme Court justices may have been the most interesting indicators of how the court might rule in the case (either accepting the maps as submitted, or remanding the maps back to the commission with instructions for remedying deficiencies).

  • Chief Justice Bender asked only one question of note (Justice Rice asked none at all) - regarding the last-minute introduction & approval of the maps , without public comment.
    • (Answer: “no process mandated to require public testimony after maps adopted.”)
  • Justice Eid followed up on that point - twice noting that the maps received “no public input” and the public was provided “no opportunity for comment”
    • (Answer: “no process called for,” “opportunity to comment throughout total process”)
  • Justice Hobbs asked several questions about where ethnic “community of interest” criteria (Article V, Section 47(3)) fall in order of precedence in relation to other state and federal constitutional criteria (along with a number of short “definition”-type questions)
  • Justice Coats asked several questions about the conditions under which some criteria might be set aside or supercede others - such as
    • Is “where it’s necessary” the only basis to break county integrity?
    • How do we construe the Constitution to allow the commission “discretion” to break county integrity?
    • Is it necessary to have a Voting Rights Act violation in order to split counties?
    • Is a violation of U.S. law necessary to trump the Colorado constitutional requirement for county integrity?  (Noting: “this seems to be fundamental”)
    • Is the commission able to not follow the Colorado Constitution if it ’suspects’ VRA violations?
    • Is there anything in prior decisions (esp. 1992) showing justification for splitting counties that did not have to be split?

Perhaps most interesting, from a court-watcher’s perspective (and because of the lack of prior rulings on which to rely for context) were the questions posed by Justice Marquez, the Colorado Supreme Court’s newest justice (the most-recently appointed justice, Brian Boatright, has not yet fully joined the court, and was absent from today’s hearings).  Justice Marquez asked several astute and penetrating questions, indicating on several occasions that she was “troubled” by the commission’s arguments:

  • “What constitutes an adequate explanation” for violating county integrity?
  • Where in that list [of constitutional criteria] does “competitiveness” play a role?
    • (Answer: Court is entitled to take into account other factors, including “competitiveness” - not arguing that it trumps other criteria)
      • (Marquez): “Competitiveness” can’t trump “less drastic” alternative
  • Do other criteria trump county integrity “if Voting Rights Acts concerns are active?”
    • (Answer: Yes - understanding that this isn’t part of constitutional hierarchy - but the commission membership being “diverse” afforded more “insight”)
  • Questioning the argument that Voting Rights Act concerns take priority (based on 1992 case precedent), Marquez noted that in 1992, those issues were “hotly contested” and that the commission was attempting to resolve disputed issues - but in 2011, “no such disputed issues” exist outside San Luis valley
    • Marquez noted “the only way the commission’s argument stands is if VRA issues exist in order to trump Article V, Section 47(2)” - without such violations, no legal grounds exist to trump that constitutional requirement”

Quo Vadis?

Although “reading the tea leaves” in such a complex and highly political case is fraught with danger, based on the arguments presented (both orally today and in previous written statements by both sides), questions posed by the Colorado Supreme Court justices, and in light of relevant case law precedent and Colorado Constitutional requirements (see below), Clear The Bench Colorado will hazard a guess on the outcome:

  • CTBC predicts that the Colorado Supreme Court will not accept the Colorado Reapportionment Commission’s state legislative district maps as submitted, and will remand the maps back to the commission with instructions to remedy deficiencies (and will do so before Thanksgiving), most likely on a 4-2 vote.

Any takers?

Colorado Constitutional Requirements:

  • Equal population (with no more than 5% deviation;  ideal district size - Senate: 143, 691; House: 77,372) (Colorado Constitution Article V, Section 46)
  • Counties cannot be split unless necessary to achieve equal population between districts

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)

  • Municipalities may not be split unless necessary to achieve equal population between districts (Article V, Section 47(2))
  • Districts must be as compact and contiguous as possible, and consist of whole precincts

(1) Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible. Each district shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap. (Article V, Section 47(1))

  • Finally, communities of interest - ethnic, economic, cultural, demographic, trade area and geographic - are to be preserved whenever possible

(3) Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible. (Article V, Section 47(3))

Note that per a previous Colorado Supreme Court ruling (In re: Reapportionment of the Colorado General Assembly), these criteria are listed in order of priority - i.e. there’s a hierarchy of constitutional criteria which must be satisfied in order for legislative districts to pass constitutional review.

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.

Commentary, PPC

Published by CTBC Director on 04 Nov 2011

Colorado Supreme Court approves 40% tax increase

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

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

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

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

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

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

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

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

(3) Therefore, TABOR was violated.

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

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

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

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

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

As Justice Coats made clear in his dissent:

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

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

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

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

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

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

Ultimately, though - it’s worth the effort.

Commentary, PPC

Published by CTBC Director on 11 Sep 2011

Defending the Constitution - Why 9/11 still matters today (10 years later)

“It is Tuesday morning, the 11th of September… and you will not forget this date.”
(TV reporter, unknown, reporting from NYC as events unfolded on the morning of 9/11…)

10 years ago today, the most horrific attack ever carried out on American soil claimed the lives of thousands of Americans, making clear that “there’ll be no shelter here - front lines are everywhere.”

Looking back, it occurred to me that I’ve since spent most anniversaries of that fateful Tuesday morning - forever burned into the American psyche as, simply, 9/11 - on duty away from home.

2002: Afghanistan; 2003: Fort Benning, Georgia; 2005: Operation Katrina (hurricane disaster relief/recovery operations); 2006: Fort Bragg, North Carolina; 2009: Camp Williams, Utah; and now this year, 2011: Fort Indiantown Gap, Pennsylvania.

My experience in this regard is hardly unique - indeed, I’ve spent less time on duty away from home than many others who proudly wear the uniform - a mere token of service willingly rendered in defense of our nation, and the Constitution we are sworn to support and defend.

Sadly, many of the men and women in uniform serving on that day and since - military, NYC Police & Port Authority, and FDNY - are not “invited” to the 10th anniversary of 9/11 at Ground Zero ’due to “lack of room”. Funny - they weren’t “invited” on that fateful day in 2001 either - they just “showed up” and did what needed to be done.

However, America isn’t about the politicians, officials, and various muckety-mucks who’ll be pontificating at that “official” event and others.

America is about the brave people - often bearing only the proud title of “Citizen” - who just “show up” to do what needs doing.

Defending the Constitution - Why 9/11 still matters today (10 years later)

Clear The Bench Colorado joins millions of Americans across the country in somber remembrance of the 9/11 attacks on our nation.

What does this have to do with holding our Colorado Supreme Court justices accountable to the rule of law and the Colorado Constitution?  Quite a lot, actually…

As a proud veteran of the U.S. military (including service in the Colorado Army National Guard), I take my oath of enlistment - “I will support and defend the Constitution of the United States and the State of Colorado [emphasis added] against all enemies, foreign and domestic”  - seriously; very seriously.

Many of our elected (and unelected) officials seem to have a much more cavalier attitude towards their own oath of office.

Colorado Supreme Court justices also swear a similar oath on taking office, which begins:
“I will support the Constitution of the United States and the Constitution of the State of Colorado.”

Note that the judicial oath of office does not state “I will support only those parts of the Constitution that I like or with which I personally agree or empathize.”

Yet the Mullarkey Court has consistently ruled against the Colorado Constitution’s Article X, Section 20 (TABOR) in every case it has heard - despite the clear intent and letter of the law that “[i]ts preferred interpretation shall reasonably restrain most the growth of government.”

The Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, Chief Justice Mary Mullarkey) are oathbreakers - and dishonor the service of the men and women of the United States military and law enforcement agencies who put their lives on the line to support and defend our Constitution.  They have proven themselves unworthy of the high office they occupy.

Another important lesson of 9/11 is that individuals matter - and fighting to defend your rights, and your lives, is the only way to preserve your rights (and your life, in extremis) when under attack.  The true heroes of that day were not only the firefighters but also the ordinary citizens who acted to save lives - and the brave passengers on Flight 93 who fought back against the hijackers on the 4th plane and died not as victims, but as American heroes.

We can no longer be under any illusion - as the passengers on Flight 93 discovered - that our rights and lives are NOT under attack; we are threatened by enemies both foreign and domestic.   The nature of the threat (and appropriate response) is different, but the need to take action, to defend your rights - remains the same.

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.

Commentary, PPC

Published by CTBC Director on 24 Aug 2011

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.

Commentary, PPC

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