Nancy Rice

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

Published May 21, 2012 | By CTBC Director

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

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

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

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

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

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

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

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

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

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

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

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

Ultimately, though – it’s worth the effort.

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

Published April 4, 2012 | By CTBC Director

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

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

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

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

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

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

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

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

Ultimately, though – it’s worth the effort.

Colorado Supreme Court upholds Colorado Court of Appeals rejection of CU Gun Ban

Published March 6, 2012 | By CTBC Director

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ultimately, though – it’s worth the effort.

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

Published December 22, 2011 | By CTBC Director

Colorado Governor John Hickenlooper officially announced Wednesday* that the state would appeal Denver District Court Judge Sheila Rappaport’s ruling that the state’s education funding is not “thorough and uniform” as referenced in constitutional language (Colorado Constitution, Article IX, Section 2). Rappaport’s 183-page ruling also paved the way for court-ordered tax increases, stating:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ultimately, though – it’s worth the effort.

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

Published December 12, 2011 | By CTBC Director

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

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

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

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

BOTTOM LINE:

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

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

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

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

Additional references:

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

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

Ultimately, though – it’s worth the effort.

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

Published December 9, 2011 | By CTBC Director

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

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

UPDATE:

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

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

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

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

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

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

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

BOTTOM LINE:

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

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

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

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

Additional references:

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

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

Ultimately, though – it’s worth the effort.

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

Published December 8, 2011 | By CTBC Director

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

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

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

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

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

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

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

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

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

BOTTOM LINE:

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

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

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

Additional references:

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

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

Ultimately, though – it’s worth the effort.

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

Published December 6, 2011 | By CTBC Director

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

The Colorado Supreme Court, upon receiving the commission’s resubmitted maps, quickly announced 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.

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

Published November 16, 2011 | By CTBC Director

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.

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

Published November 9, 2011 | By CTBC Director

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.

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