unjust justices
Colorado Ethics Watch finally pays Clear The Bench Colorado for frivolous, groundless, and vexatious complaint
The wheels of justice grind slooooooooowly…
After almost three years (and after exhaustion of all appeals) since first winning the judgment against “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) for CEW’s “frivolous, groundless, and vexatious” campaign finance complaint against Clear The Bench Colorado (back in July 2010), as spelled out by court order in December 2010, CEW has finally paid what they have owed us for years.
Clear The Bench Colorado‘s victory against CEW, winning an award of attorney’s fees, is only the second time that CEW (with a near decade-long history of conducting harassing legal attacks) has been forced to pay. It is rare (indeed, almost unheard of – though not totally unprecedented) for attorney’s fees to be awarded to the defendant in this type of case, as Face The State had pointed out in an earlier article (“Judicial-reform group lashes back at ‘frivolous, groundless’ complaint“):
Attorneys fees are awarded sparingly by Colorado judges, largely because those requesting the sanction must prove opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.
The award indicates that the judge not only thought that CEW’s case (or “complaint”) was bad – he thought it was SO bad that he took the unusual step of slapping CEW with the bill (which, as noted, runs into the ‘tens of thousands’).
The ’Order Awarding Attorney Fees and Costs‘ confirmed the complete lack of legal merit in CEW’s original complaint against Clear The Bench Colorado:
Because CEW’s claim was not supported by the undisputed evidence or by the plain language of the law, the ALJ found CEW’s complaint substantially groundless and frivolous. The ALJ therefore granted CTBC’s request for attorney fees and costs…
Confirmation of the award of legal fees and costs - and more importantly, confirmation of the “frivolous, groundless, and vexatious” nature of CEW’s original complaint – comes as both victory and vindication for Clear The Bench Colorado. As noted previously by CTBC and knowledgeable observers of the legal and political scenes, the award of legal fees to the defendant is an extreme rarity.
CEW’s attacks against Clear The Bench Colorado fit an ongoing pattern of politically motivated “ethics” complaints designed to distract, disorient, and sling mud in the (vain) hope that something might stick. Ultimately, they don’t care if they win or lose the case (their lopsided loss-win ratio bears this out), since their priorities are (1) smear, (2) frame the media debate and gain attention, (3) divert resources and attention, (4) intimidate, and (5) maybe (if they get lucky) occasionally win a case. As many publications noted at the time, CEW’s attack was just another cheap political stunt. Even the Secretary of State’s office called CEW Director Toro’s statements “disingenuous” (which is a polite way of saying, ‘lying through your teeth’).
Groups like CEW – with the massive amounts of funding they receive from their parent organization (Washington, DC based CREW) and from local leftist funders Tim Gill, Pat Stryker, Jared Polis, and Rutt Bridges right here in Colorado, can continue to draw upon deep reservoirs of cash in support of attacks and legal harassment of their ideological foes – abusing the legal system as a political weapon.
Unless and until meaningful sanctions against such abuse of the legal system as a political weapon are implemented and consistently enforced, citizens engaging in civic activity (along with political campaigns at all levels) can expect to continue to be subject to these kinds of harassing attacks.
Clear The Bench Colorado‘s victory against the unethical ‘Colorado Ethics Watch’ – holding them accountable for their abuse of the legal system – is one small step in the direction of restoring some measure of sanity (and accountability) to the courts.
Once in a while – the Underdog wins.
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 arguments in Lobato appeal (the “SuperBowl of School Funding Litigation”)
The Colorado Supreme Court heard oral arguments in the resurrected ‘Lobato v. Colorado‘ school funding lawsuit (previously termed the Super Bowl of school funding litigation).
At issue: the constitutionality of Colorado’s system of statewide school funding.
At stake: some $3B additional school funding annually (requested by the plaintiffs), along with an additional $17B in spending on capital construction – and, perhaps even more importantly, a looming constitutional crisis regarding separation of powers and the proper role of the courts in setting taxation and educational policy.
Lobato case argued before the Colorado Supreme Court
(Denver Post, ”Colorado Supreme Court hears arguments in school funding lawsuit” 7 MAR 13)
The Lobato lawsuit was originally filed in 2005; it was rejected at both the trial court level and in the Colorado Court of Appeals before narrowly (4-3) receiving new life in one of the Mullarkey Majority’s final (and most notorious) rulings in October 2009. The Mullarkey Majority overturned lower courts that had held (correctly) that school funding decisions are a matter of policy – not law – and are therefore the job of elected legislators – not appointed judges – to decide.
That ruling sent the case back to the trial court, and two years later (9 December 2011) Denver District Judge Sheila Rappaport issued a 183-page ruling finding for the plaintiffs – which was almost immediately appealed by the state (a bipartisan decision by Governor Hickenlooper and Attorney General Suthers) and joined in the appeal by the State Board of Education).
In oral arguments before the Colorado Supreme Court, Assistant Attorney General Jonathan Fero challenged Rappaport’s finding that the phrase “thorough and uniform education” in Colorado’s Constitution means that “if any students aren’t making it the whole system is irrational” – stating
“Universal achievement cannot be what the constitution requires”
Plaintiffs argued that because some groups show disparate performance, the state’s educational system is not “thorough and uniform” – and allege that shortfalls in educational outcomes are due to the state’s K-12 educational system being underfunded by $3 billion. As reported in the Alamosa News coverage of the trial (“Supreme Court to consider Lobato case“),
According to the Joint Budget Committee Appropriations Report 2010-11 and the Colorado Attorney General (AG), K-12 in Colorado receives 45.6 percent of the general fund or $3.2 billion of a $6.97 billion general fund.
A Colorado Supreme Court ruling in favor of the plaintiffs would have “devastating consequences” for the state, according to Governor Hickenlooper. As summarized by the Alamosa News article,
If the plaintiffs were to win, the state would either have to raise taxes by at least 50 percent or have to devote 89 percent of the general fund budget to K-12 funding to meet this obligation, crowding out things such as Medicaid, unemployment assistance, transportation, public safety and higher education
Assistant AG Fero also emphasized that a court mandate to raise taxes or require more spending would intrude upon the legislature’s authority to set policy and violate the constitutionally-defined separation of powers between branches of state government (an issue at the heart of the dissenting opinion in the 2009 ruling, as contemporaneously noted by Clear The Bench Colorado:
The Colorado Constitution directs the General Assembly to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state,” placing discretionary education questions in Colorado squarely and solely within the legislative ambit. (Lobato v. State of Colorado, dissenting opinion. Emphasis added).
A court ruling in favor of the plaintiffs “could alter the relationship between the people of Colorado and their government for decades to come” – since
One of the plaintiffs’ main arguments is that the Taxpayer Bill of Rights (TABOR) must give way to the education clause so that taxes could be raised and revenues increased to meet the needs of the education clause without a vote of the people.
A ruling by the Colorado Supreme Court asserting primacy of the education clause over TABOR and imposing higher taxes or spending could - as noted by both the attorney general’s office and Governor Hickenlooper – 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.”
Listen to audio of Governor Hickenlooper’s statement on the Lobato appeal
Bottom Line:
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 (i.e., a policy issue not to be decided by the courts).
Interestingly, two of the ‘unjust justices’ constituting the majority opinion in October 2009 (Mullarkey and Martinez) are no longer on the state’s highest court, while the 3 opponents of the original ruling remain. Of the two replacements, one (Marquez) has (appropriately) recused herself from the case, as she had taken part in earlier decisions while representing the state as an assistant attorney general, leaving the balance of power in deciding the case to recently appointed Justice Brian Boatright. Note that both Justice Boatright and Justice Marquez are subject to a retention vote in 2014.
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:
- “Double talk on Lobato case before the Colorado Supreme Court” (Denver Post commentary, 13 March 2013)
- “Lawyers make last Lobato case pitches” (EdNews Colorado, 7 March 2013)
- “Supreme Court to consider Lobato case“ (Alamosa News, 6 March 2013)
- “Judicial Overreach” (Pueblo Chieftain editorial, 14 December 2011)
- “Judge Sets Constitution Aside in School Finance Ruling” (Audio, Education Policy Center, 12 December 2011)
- “Victory for Lobato Plaintiffs” (Education News Colorado, 9 December 2011)
- “Lobato case primer” (Education News Colorado, 11 August 2011)
- “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
- “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)
- “Lobato education-funding budget-buster aided & abetted by Colorado Supreme Court” (8 August 2011)
The Attorney General’s office has also compiled a 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.
Hickenlooper appoints Navarro to Colorado Court of Appeals
The second time was the charm for Anthony Navarro, who was just appointed to the Colorado Court of Appeals by Governor John Hickenlooper to replace outgoing Judge Robert Russel, a former contender for Colorado Supreme Court justice (Navarro had previously applied for consideration to join the state’s frontline appellate court in 2008, with the endorsement of the Colorado Hispanic Bar Association).
Governor Hickenlooper selected Navarro from a pool of 3 nominees (Robert T. Fishman of Denver, Russell H. Granger of Georgetown, and Anthony Navarro of Denver) picked by the State Judicial Nominating Commission last month.
Mr. Navarro (effective 3 November, Judge Navarro) will serve as one of 22 judges on the Colorado Court of Appeals (who rule on cases in 3-judge panels). His first term (considered a “provisional” term under the Colorado Constitution, Article VI Section 20) “expires” in 2014, when he will appear on the ballot for a “retention” vote:
A justice or judge appointed under the provisions of this section shall hold office for a provisional term of two years and then until the second Tuesday in January following the next general election.
Citizen participation in the judicial review and retention election process (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – hold judicial office, instead of more politicians in black robes.
This is particularly important in reviewing the performance of statewide appellate court judges – many of whom all too frequently have exercised unrestrained power, in violation of constitutional limits on their authority, in order to advance a personal and/or political agenda.
Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our judges are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.
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 Judicial Nominating Commission names finalists for Colorado Court of Appeals vacancy
The Colorado Supreme Court Judicial Nominating Commission has named the three finalists to fill a pending vacancy on the Colorado Court of Appeals, due to the resignation of Judge Robert Russel (effective 3 Nov 2012), as reported by Clear The Bench Colorado last month.
The three finalists (from whom Governor John Hickenlooper will select one) are:
Robert T. Fishman of Denver, Russell H. Granger of Georgetown, and Anthony Navarro of Denver.
- Fishman is an appeals attorney at Ridley McGreevy & Winocur in Denver; his experience includes having clerked for (former) Colorado Supreme Court Chief Justice Luis D. Rovira
- Granger is a currently district judge in the 5th Judicial District (formerly a Clear Creek County judge), and was most recently reviewed (and retained) in 2008.
- Navarro currently works in the office of general counsel at the Social Security Administration; he previously applied for the Colorado Court of Appeals in 2008 (endorsed at the time by the Colorado Hispanic Bar Association).
The governor has 15 days from Wednesday to select one of the three. Comments regarding any of the nominees may be sent via e-mail to the governor at judicial.appointments@state.co.us
Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to judicial office, instead of more politicians in black robes.
This is particularly important in selecting the next statewide appellate court judges – many of whom all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.
Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our judges are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.
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.
CU Board of Regents statewide candidates both support new legislation to allow the university to again ban guns on campus
Despite a long, hard-fought court battle to secure the same rights for Colorado citizens at the University of Colorado applying elsewhere in the state (under state law and the Colorado Constitution) to lawfully carry concealed weapons for personal protection, the University of Colorado administration and the CU Board of Regents have sought to end-run and undermine the recent Colorado Supreme Court ruling striking down CU’s comprehensive campus gun ban. Recently, the University of Colorado revised its formerly comprehensive gun ban policies to more restricted in scope, but still legally suspect, policies imposing a gun ban in student housing and at ticketed campus events (policies that are likely to draw an additional, and costly, legal challenge – and, as noted in a previous guest commentary on this site (CU Regents Unwise to Consider Residence Hall Gun Ban,
The courts do tend to take a dim view of those who try to squash fundamental rights.
For that reason, this year’s elections to the CU Board of Regents hold more than casual interest to those concerned about constitutional and statutory rights to “keep and bear arms.” Unfortunately, on the gun rights issue, both candidates for the single statewide (“at-large”) CU Regent seat appear to share similar anti- gun rights views. Appearing together on the 9News “Your Show” television program Sunday morning (23 Sept 2012), both candidates were asked about their views on the recent Colorado Supreme Court ruling striking down the CU Gun Ban, and more generally about the issue of concealed carry on campus.
“Should the CU Board of Regents accept the ruling and allow for those over 21 with a license to carry or should they continue trying to work around it?” (question submitted by Kris West) “What is your position on concealed carry on campus? Do you agree with proposed legislative attempts to outlaw the right in the face of the Colorado Supreme Court decision that the university has no power to do so?” (question submitted by Joe Mierzwa)
Democrat CU Board of Regents candidate Steve Ludwig reiterated his position in opposition to allowing licensed concealed-carry permit-holders to exercise their rights on university-administered property, although he did concede that “CU lost a lawsuit, so we have to allow concealed carry on campus.”
Ludwig, at least, was consistent.
Republican CU Board of Regents candidate Brian Davidson, however, seems to have flip-flopped on the position he took during the primary campaign (during which he claimed to “support the 2nd Amendment” and licensed concealed carry) and joined Ludwig in supporting legislation (such as a bill proposed by Boulder Democrat Claire Levy) allowing the university to again ban guns (and violate the rights of all Coloradoans) on campus:
Chris Vanderveen (9News YourShow Host): “Do you want the legislature to get involved, Brian?” (video at 5:24)
Brian Davidson, Republican candidate for CU Regent At-Large: “I do, and I’d actually take a little bit different stance – that is, having this issue on each board table across the state of Colorado, I think is simply going to be a fight, it’s going to have, uh… induce chaos, um, and take away from the issues at hand, of affordable education, quality education, uh, et cetera. I’d actually like the legislature to decide whether or not higher education institutions should or should not be exempt from that, uh, from that bill, and take the debate away from the board table.”
Of course, the Colorado legislature already DID “decide whether or not higher education institutions should or should not be exempt from that, uh, from that bill” when passing the Colorado Concealed Carry Statute (C.R.S. 18-12-214) in 2003 with a definitive “NOT exempt” – as confirmed by both the March 2012 Colorado Supreme Court ruling, and the more sweeping Colorado Court of Appeals April 2010 ruling:
Institutions of higher education not exempt from the express authorization of permittees to carry concealed handguns “in all areas of the state”. The concealed carry act, § § 18-12-201 to 18-12-216, satisfies the “unless otherwise provided by law” provision of article VIII, section 5(2), of the state constitution by manifesting a clear and unmistakable intent to subject the entire state to a single statutory scheme regulating concealed handgun carry, subject to specified exceptions. Students for Concealed Carry on Campus, LLC v. Regents of Univ. of Colo., — P.3d — (Colo. App. 2010).
CU’s Gun Ban policies needlessly endanger the safety of students, staff, faculty, and visitors by putting them at greater risk of criminal predation, as ”gun free zone” = “target-rich environment” for criminals.
The continued support of the CU Board of Regents – both the current majority and candidates for election this year – for policies and legislation violating the rights of a segment of Colorado citizens (CU students, staff, faculty, and campus visitors) is deeply disturbing.
Allowing responsible adults to exercise a fundamental constitutional right – affirming the right of licensed adult concealed-carry permit holders to responsibly exercise their inherent right of armed 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.
Defending the Constitution – Why 9/11/2001 still matters today (11 years later)
“It is Tuesday morning, the 11th of September… and you will not forget this date.”
(TV reporter, unknown, reporting from NYC as events unfolded on the morning of 9/11…)
11 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, New Orleans (hurricane disaster relief/recovery operations); 2006: Fort Bragg, North Carolina; 2009: Camp Williams, Utah; and last 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 – were 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 were pontificating at that “official” event and others today.
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 (reprise)
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.
New University of Colorado policies banning guns in residences flouts Colorado Supreme Court ruling, state law
The University of Colorado is once again violating the constitutional and statutory rights of students (and violating state law) with recently-announced policies imposing a ban on permitted concealed-carry of guns at some CU facilities:
In what it calls a contractual matter between landlord and tenant, the University of Colorado-Colorado Springs is putting freshman housing off-limits to concealed carry permits and also will ban permitted guns from large campus events.
The University of Colorado at Boulder announced virtually identical (and identically illegal) policies:
University of Colorado’s Boulder campus announced Thursday that it will bar guns from undergraduate residence halls and provide designated off-campus housing for those hoping to bring their weapons to the university.
The University of Colorado administration’s attempt to re-label the renewed CU Gun Ban as a mere “contractual matter” is a transparent attempt to end-run a recent Colorado Supreme Court ruling affirming the universal applicability of a state-issued concealed-carry permit – striking down CU’s earlier campus-wide comprehensive gun ban.
Unfortunately for CU’s attempt to circumvent state law via the too-clever-by-far mechanism of declaring the gun ban a “contractual matter between landlord and tenant,” as a state-supported institution governed by an elected Board of Regents, the University is not just a private “landlord” but is a quasi-public accommodation, subject to state law. Additionally, as noted in a previous guest commentary on this site (CU Regents Unwise to Consider Residence Hall Gun Ban),
The courts do tend to take a dim view of those who try to squash fundamental rights.
The line of argument pursued by the CU administration with the new policies of implementing a gun ban via “contractual” forfeiture of a fundamental legal right is deeply troubling, and would set a disturbing precedent if upheld in the inevitable legal challenge(s) to the CU Gun Ban policies. If a government agency or institution can obligate citizens to contractually “sign away” their rights otherwise obtaining under state law and/or the constitution, do those rights actually exist in any meaningful sense?
The casual disregard for this fundamental principle breezily displayed by CU’s chief legal counsel is also disturbing:
“Ultimately, I’m not going to say that the issue won’t have to be resolved by the courts.”
So yes, the CU administration is basically daring students to sue for their constitutional and statutory rights; let’s hope that someone takes them up on that challenge. It will be a costly proposition for the University (which the cash-strapped CU system can ill afford), but since the current CU Board of Regents refused to exercise their oversight authority to prevent it (“punting” to chancellors rather than providing guidance or policy direction at the April board meeting)
The authority to implement residence hall gun policies, the university stated in the release, was delegated to the chancellors at CU-Boulder by the Colorado Board of Regents last spring.
the University of Colorado will once again be wasting tuition and taxpayer dollars in court.
As noted by attorney Jim Manley of Mountain States Legal Foundation, who won the Supreme Court challenge to campus gun bans in Colorado,
the Colorado Supreme Court was very clear in its ruling that you cannot regulate concealed carry in any way that conflicts with state law.
CU’s Gun Ban policies needlessly endanger the safety of students, staff, faculty, and visitors by putting them at greater risk of criminal predation, as ”gun free zone” = “target-rich environment” for criminals.
Allowing responsible adults to exercise a fundamental constitutional right – affirming the right of licensed adult concealed-carry permit holders to responsibly exercise their inherent right of armed 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 judges seeking retention in office 2012
This week, the Colorado Office of Judicial Performance Evaluation (COJPE) released the names of those Colorado judges seeking to be retained in office (subject to voter approval) in 2012.
This year, the number of those judges seeking voter approval for another term (10, 8, 6, or 4 years depending on the level of court) is down slightly from last year. Colorado judges seeking retention in 2012 (appearing on the November general election ballot with a “Yes” or “No” vote option) are:
- 1 Supreme Court Justice
- 6 Court of Appeals judges
- 83 District & County judges
(View the comprehensive list of Colorado judges seeking to be retained in office in 2012)
The Colorado Office of Judicial Performance Evaluation (COJPE) simultaneously published the “judicial performance evaluations” (based predominantly on surveys of attorneys and other parties appearing before each judge). As usual, almost all of the judges “evaluated” received a “Retain” recommendation from the respective review commission (the single exception being a county judge in El Paso County,
4th Judicial District – who was given a “Do Not Retain” recommendation based on “Demeanor”).
Unfortunately, the survey methodology employed by the Colorado Office of Judicial Performance Evaluation and the resultant 5-paragraph “Judicial Performance Review” narratives fail to provide substantive information on which to base an informed decision on “should they stay or should they go.” (See: Evaluating the Performance of Justices, Denver Post Guest Commentary by former State Judicial Performance Commissioner William M. Banta, for a critique of JPE relevance and effectiveness)
For example, in the case of the single judge receiving a “Do Not Retain” recommendation this year, based predominantly on attorney responses to surveys: was the judge’s courtroom “demeanor” truly disrespectful and lacking in neutrality, or is she a “no-nonsense judge who follows the letter of the law… [who acts to] incarcerate dangerous drunk drivers for the protection of the public”? Are the “surveys” reliable, or the result of manipulation by disgruntled attorneys? Unfortunately, it’s difficult to tell from the data presented in the “judicial performance review” narratives.
Our View:
Colorado voters deserve better – a broader, more substantive evaluation based on “relevant, substantive and vigorous information” about how (and whether) the judge upholds the rule of law.
Most importantly, Colorado voters should receive information from a variety of truly independent sources. The quasi-official, government-appointed Commissions on Judicial Performance Evaluation are inherently prone to political bias, conflicts of interest (attorneys practicing before the very judges they “evaluate”) and groupthink. Most dangerously, in publishing and distributing (at taxpayer expense) a “recommendation” on judicial retention, these commissions represent the government telling the public how to vote on another branch of government – completely undermining the independent accountability mechanism at the heart of Colorado’s “merit selection & retention” system for the courts.
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.
Arapahoe County Court (18th Judicial District) Judge Nominees biographies released for public review
The names and short bios of 3 nominees to replace outgoing Arapahoe County Judge Valeria Spencer (resigning effective 10 August) have been released for public review and comment.
Public comments must be received no later than 20 August 2012 to be considered; submit comments via E-mail (subject: “Arapahoe County Court, Eighteenth Judicial District: Judicial Nominees”) to: judicial.appointments@state.co.us
As published in Law Week Online, the names of (and summary information on) the nominees are as follows:
The 18th Judicial District Nominating Commission named three candidates for a district court judgeship created by the resignation of Judge Valeria Spencer, effective Aug. 10, 2012. Nominees M. Paula Ashen of Centennial, Stephen Hensen of Littleton, and Theresa Slade of Elizabeth were selected by the commission on Aug. 6, 2012.
According to the State Supreme Court’s website, Ashen is a sole practitioner in Greenwood Village; Hensen practices with Murphy Decker Hensen & Cook-Olson; and Slade is a magistrate in the 18th Judicial District.
As required under the Colorado Constitution (Article VI, Section 20), vacancies for judicial office are filled by the governor from a list of nominees selected by the relevant judicial nominating commission (Colorado Constitution, Article VI, Section 24).
The Judicial Nominating Commissions – established by constitutional amendment in 1966 as a replacement for direct, contested elections of judges – are responsible for reviewing applications (and interviewing applicants) for those wishing to become judges under Colorado’s selection/retention system. As such, they are the first line of “vetting” prospective judicial officeholders – selecting nominees (usually a list of 3 names) from whom the governor picks to make the final appointment.
Unlike on the judicial review commissions – which are often heavily biased and politically unbalanced – there is a legal requirement for partisan balance on the nominating commissions: no more than 7 (at the statewide level) or 4 (at the judicial district level) may be registered as members of the same political party (there is no restriction on ideological leaning for unaffiliated or minor-party members), and at nominees for judicial office must receive at least one vote from commission members of a different party.
Once the nominating commissions have submitted their list of nominees to the governor,
The governor must select one of the nominees within 15 days after receiving the list of nominees. If the governor does not appoint someone within those 15 days, then the chief justice of the Colorado Supreme Court appoints one of those individuals to fill that vacancy. The judge so chosen serves an initial term of two years. The judge must then stand for retention at the next general election.
If retained by voters after serving an initial two-year term, state court judges serve the following terms: county court, four years; district court, six years; Court of Appeals, eight years; and Supreme Court, 10 years. All Colorado state judges must retire by age 72.
Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to judicial office, instead of more politicians in black robes.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Colorado Supreme Court Nominating Commission seeks applicants for pending Colorado Court of Appeals vacancy
The Colorado Supreme Court Nominating Commission is soliciting applicants to fill a pending vacancy on the Colorado Court of Appeals, due to the resignation of Judge Robert Russel (effective 3 Nov 2012).
Any qualified elector of the state of Colorado who is not a convicted felon and has been licensed to practice law in the state for 5 years may apply to become a judge (Colorado Constitution, Article VI Section 8, Qualifications of Judges).
From the vacancy announcement, as reported by Law Week Colorado:
Application forms are available from the office of the ex-officio chair of the nominating commission, Chief Justice Michael L. Bender, 101 W. Colfax, Suite 800, Denver, CO 80202; and the office of the district administrator of any of the 22 judicial districts. Applications also are available at www.courts.state.co.us/Careers/Judge.cfm.
One original, signed application form, along with an identical copy of the application stored as a PDF file must be received by the ex-officio chair by 4 p.m. Tuesday, Aug. 28. Late applications will not be considered.
Any person wishing to suggest a candidate to fill the vacancy may do so by letter to be submitted to any member of the nominating commission, with a copy to the ex-officio chair, no later than Aug. 21.
Applications will be kept confidential, except that the nominating commission shall disclose the names, work addresses, and work telephone numbers of the three nominees submitted to the governor.
The Colorado Supreme Court Nominating Commission will convene 24-25 September 2012 to review all applications, interview selected applicants, then vote to select 3 nominees who will be submitted to the governor for appointment to the Court of Appeals. Once the 3 nominees have been selected, a public review and comment period is typically observed. (Current example: Montrose County Court vacancy)
Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to judicial office, instead of more politicians in black robes.
This is particularly important in selecting the next statewide appellate court judges – many of whom all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.
Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our judges are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.
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.