Taxpayer’s Bill of Rights

Colorado Supreme Court approves 40% tax increase

Published November 4, 2011 | By CTBC Director

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

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

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

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

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

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

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

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

(3) Therefore, TABOR was violated.

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

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

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

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

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

As Justice Coats made clear in his dissent:

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

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

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

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

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

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

Ultimately, though – it’s worth the effort.

“Adequate Funding” unrelated to available state funds? Colorado judge rules out relevant evidence

Published September 13, 2011 | By CTBC Director

The Lobato v. Colorado school funding lawsuit concluded its fifth and final week in trial court in Denver last Friday – with plaintiffs seeking

billions of dollars of additional funding for schools, though it’s unclear where that extra money would come from. (Denver Post, “Colorado school funding trial enters likely final week“)

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).

Plaintiffs scored a major victory when Denver District Judge Sheila Rappaport ruled to exclude evidence on the state’s budget and fiscal situation, as well as evidence on relevant constitutional provisions including the Taxpayer’s Bill of Rights (TABOR) and the Gallagher Amendment (restricting property tax collections).

According to an article in last weekend’s Pueblo Chieftain (“State’s pocketbook won’t figure in schools suit“),

Kathy Gebhardt, a lawyer for plaintiffs in Lobato v. the state of Colorado, told the education collective Colorado School Finance Project on Friday that exclusion of evidence related to the state’s budget condition was a key victory for her side in five-week trial that concluded last week.

Gebhardt said her legal team filed the motion “thinking that we probably had a 5 or 10 percent chance of winning on that, and we won, which pretty much I think gutted a big part of the state’s defense.”

In lawsuits challenging the adequacy of school funding in other states, plaintiffs rarely have sought similar rulings.

Although Judge Rappaport “does not expect to rule on the case for at least another month” the preliminary rulings do not bode well for the state, which “cannot afford to lose.”

A court ruling in favor of the plaintiffs could not only precipitate a constitutional crisis, but lead to a fiscal and budgetary train wreck of epic proportions.  Indeed, as Governor Hickenlooper correctly points out, the consequences for Colorado would be “devastating.”

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 recent articles:

These cases 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.

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.

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

Published September 11, 2011 | By CTBC Director

“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.

Last Week in Lobato Trial – will courts decree new school taxes?

Published August 28, 2011 | By CTBC Director

The Lobato v. Colorado school funding lawsuit enters its fifth and (likely) final week in trial court in Denver this Monday – with plaintiffs seeking

billions of dollars of additional funding for schools, though it’s unclear where that extra money would come from. (Denver Post, “Colorado school funding trial enters likely final week“)

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).

Despite the lack of correlation between spending and performance – and despite the failure of court-imposed school funding increases in several states (including Colorado neighbors Kansas and Wyoming) to achieve increased school performance, despite revenue and spending increases -

In Colorado, where per-pupil spending was $8,782 in 2008-09, students often outperformed students in Wyoming, where funding – following a school finance lawsuit – was $14,268 per pupil.

plaintiffs continue to seek additional money that the state simply does not have.  A court ruling in favor of the plaintiffs could not only precipitate a constitutional crisis, but lead to a fiscal and budgetary train wreck of epic proportions.  Indeed, as Governor Hickenlooper correctly points out, the consequences for Colorado would be “devastating.”

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 recent articles:

These cases 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.

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

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

Ultimately, though – it’s worth the effort.

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

Published August 24, 2011 | By CTBC Director

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

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

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

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

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

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

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

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

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

Ultimately, though – it’s worth the effort.

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

Published August 17, 2011 | By CTBC Director

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

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

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

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

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

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

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

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

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

Now where have we heard that before?

In fact, as the Motion further elucidates,

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

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

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

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

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

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

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

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

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

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

Ultimately, though – it’s worth the effort.

Clear The Bench Colorado Director Matt Arnold featured panelist at National Conference on Evaluating Appellate Judges today

Published August 11, 2011 | By CTBC Director

The Denver-based Institute for the Advancement of the American Legal System (IAALS) – “a national, non-partisan organization dedicated to improving the process and culture of the civil justice system” – is hosting a National Conference on Evaluating Appellate Judges on 11-12 August on the campus of the University of Denver (Sturm Hall, 2000 E. Asbury Avenue, Denver CO 80208).

Clear The Bench Colorado Director Matt Arnold is, by special invitation, a featured panelist on the topic of “Evaluating Appellate Judges: Are we doing it right? How can we do it better?”

(Short answers: “NO”, and “view our Evaluations of Judicial Performance page for an idea”).

To the Institute’s credit, they (IAALS) extended the invitation even after being taken to task for their involvement in the “Know Your Judge” campaign which likely violated Colorado campaign finance laws in advocating against Clear The Bench Colorado’s judicial accountability efforts during the state’s 2010 judicial retention elections without ever bothering to register with the Office of Secretary of State, as required by law.  (The case is currently winding its way through the appellate process).

Since being announced last month, the conference has gained attention in the legal profession press, both locally (the Denver Bar Association and Colorado Bar Association featured the event in their respective newsletters, following Law Week Colorado’s coverage) and nationally:

For more on the topic (and for “what promises to be an engaging and thought-provoking” discussion), you’ll have to attend the conference, which is open to the public and free of charge (register online).

From the conference website:

This national conference will consider ways to improve existing processes for evaluating the performance of appellate judges and for informing voters about evaluation results. Chief Justice Mark Cady of the Iowa Supreme Court is the featured speaker. We invite you to join us for what promises to be an engaging and thought-provoking event.

For Colorado attorneys and judges, 9 hours of general CLE credits, including 1.2 hours of ethics, may be earned.

Click here for the conference agenda.

Topics include:

  • The appellate judge: What makes a good appellate judge? Can we capture these qualities in the evaluation process?
  • Evaluating appellate judges: Are we doing it right? How could we do it better?
  • Retention elections, special interests, and voters: Perspectives from a justice, a journalist, and a scholar

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 Director Matt Arnold featured panelist at National Conference on Evaluating Appellate Judges (Aug. 11)

Published July 19, 2011 | By CTBC Director

The Denver-based Institute for the Advancement of the American Legal System (IAALS) – “a national, non-partisan organization dedicated to improving the process and culture of the civil justice system” – is hosting a National Conference on Evaluating Appellate Judges on 11-12 August on the campus of the University of Denver (Sturm Hall, 2000 E. Asbury Avenue, Denver CO 80208).

Clear The Bench Colorado Director Matt Arnold is, by special invitation, a featured panelist on the topic of “Evaluating Appellate Judges: Are we doing it right? How can we do it better?”

(Short answers: “NO”, and “view our Evaluations of Judicial Performance page for an idea”).

To the Institute’s credit, they (IAALS) extended the invitation even after being taken to task for their involvement in the “Know Your Judge” campaign which likely violated Colorado campaign finance laws in advocating against Clear The Bench Colorado’s judicial accountability efforts during the state’s 2010 judicial retention elections without ever bothering to register with the Office of Secretary of State, as required by law.  (The case is currently winding its way through the appellate process).

For more on the topic (and for “what promises to be an engaging and thought-provoking” discussion), you’ll have to attend the conference, which is open to the public (register online).

From the conference website:

This national conference will consider ways to improve existing processes for evaluating the performance of appellate judges and for informing voters about evaluation results. Chief Justice Mark Cady of the Iowa Supreme Court is the featured speaker. We invite you to join us for what promises to be an engaging and thought-provoking event.

For Colorado attorneys and judges, 9 hours of general CLE credits, including 1.2 hours of ethics, may be earned.

Click here for the conference agenda.

Topics include:

  • The appellate judge: What makes a good appellate judge? Can we capture these qualities in the evaluation process?
  • Evaluating appellate judges: Are we doing it right? How could we do it better?
  • Retention elections, special interests, and voters: Perspectives from a justice, a journalist, and a scholar

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.

A Nation of Citizens, not Subjects (reprise)

Published July 4, 2011 | By CTBC Director

As we celebrate the anniversary of our nation’s founding on this 4th of July – our Independence Day - Clear The Bench Colorado salutes the ideals and principles that make the Unites States of America the greatest nation on earth.

Since Clear The Bench Colorado Director Matt Arnold is currently serving a tour of duty out of state, on this Independence Day we reprise an article written this time last year to commemorate the anniversary of our Declaration of Independence (published in the now-defunct Constitutionalist Today monthly).

A Nation of Citizens – Not Subjects

As We The People celebrate the 235th anniversary of our Declaration of Independence this year – entering our 236th year as a nation – it is worth reflecting on that truly groundbreaking document and the unique, truly exceptional experiment in human governance represented by our founding documents, forming the very essence and exceptional character of the United States of America.

For the first time in human history – acknowledging the historical antecedents in Greek democracy and the Roman Republic, but nonetheless a radical departure from all that had come before – a nation was founded based on the principle of individual, unalienable rights, and putting government in its proper place of being the servant, not the master:

“We hold these Truths to be self-evident, that all Men are created equal…”

Equality not of individual skill or ability, not station (or “class”) in life, not of achievement – but equality in rights before the law - unalienable rights, meaning rights that government does not have the authority to arbitrarily take away, even if it may have the power.

That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed…

Those who would argue that our rights come from government – that government comes first, and the citizenry should be content with what government gives them – are decisively rebuffed in our nation’s foundational documents, and the Spirit of America.  Government exists only to help secure our Rights – it does not grant them, our Rights are ours, pre-dating and superior to the existence of government.

Unfortunately – as did our forefathers at the time of the founding - We The People have experienced an increasing “History of repeated Injuries and Usurpations, all having in direct Object the Establishment of an absolute Tyranny over these States.”

The growth of the Federal government in particular, but of state governments as well, to rule over an ever-increasing number of activities not the proper purview of government activity, directly threatens the freedoms, liberties, and yes, “unalienable Rights” of the citizens of these United States of America.

Are we, then, arrived at the need for a new Declaration of Independence against our grasping, grabbing, ever-growing Government?

As Citizens, we still maintain the Right, and the power, to bring our out-of-control government to heel.  We The People have allowed our government – through inattention and inactivity – to ignore the limits we have set for its power and authority.  Those limits are specified in another exceptional founding document – the U.S. Constitution – which lists (”enumerates“) the “just Powers” of our Federal government, just as our respective state Constitutions enumerate the powers and authority of the state governments.

Government transgressions against the Constitution (at either the Federal or state levels) are an assault on the liberties and individual rights of the citizens.  As citizens, we must not - we cannot – tolerate such assaults, or we shall inevitably be deprived of our status as citizens, and instead become subjects – the ruled, not the rulers.

Stand as a Citizen this year (and every year) – refuse to become a subject.  Restore constitutional limits to the powers of government, and hold government officials at all levels, in all three branches – accountable to the law.  Remember, the Constitution is our law, limiting government power over us; don’t let it be taken from you, along with your rights.

In Colorado, we have a unique opportunity every two years to hold not just our elected officials (our legislators and executive-branch officeholders) accountable, but the appointed officials in our judiciary as well – those who should be the guardians of our constitutional rights, but many of whom instead have acted repeatedly to weaken and undermine our constitutional rights.

Our form of government – a constitutionally limited “Republic, if you can keep it” – is worthy of our best efforts in its defense.

This unique experiment in human governance, that has lasted more than two centuries – this

“government of the people, by the people, for the people, shall not [MUST NOT!] perish from the earth.”

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 honors our Veterans on Memorial Day

Published May 30, 2011 | By CTBC Director

Clear The Bench Colorado salutes those who have contributed most to establishing, and preserving, our freedoms as Americans: on this Memorial Day, we honor those who serve (or have served) in our nation’s armed forces, particularly those who have made the ultimate sacrifice.  As a military veteran and proud “Citizen Soldier” I strongly believe in the importance of saluting the service of all who have honorably worn the uniform.

In honor of “Band of Brothers” Dick Winters – who died this year, 2 January 2011 at age 92 – and of Airborne Soldiers past and present – CBTC shares the above video tribute.

What does all of 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.

Our Colorado Supreme Court justices also swear an 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 oath of office does not state that ”I will support only those parts of the Constitution I like or with which I personally agree or empathize.”

Unfortunately, the Colorado Supreme 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.” Several of the current justices 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…

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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