Colorado's Supreme Court is still out of control...

Rulings by Colorado's Supreme Court – called the "most activist, partisan state Supreme Court in the nation" – have demonstrated their contempt for the very Constitution they are sworn to uphold.

DID YOU KNOW that you have the right to vote "NO" on these unjust justices?

It's true – even Supreme Court justices in Colorado ARE accountable to the people. Every two years, voters in Colorado have the opportunity to render their judgement on a portion of our appointed judiciary in "retention" elections ("should they stay, or should they go?" What makes a good judge?) YOU, the voter, get to decide - they NEED YOUR APPROVAL to be retained on the bench.

The current majority were guilty of Aiding and Abetting

For additional information and references, view the Evaluations of Judicial Performance page

For information on Colorado's new court-drawn Congressional and state legislative districts, view the Congressional and state legislative district maps summary


Retrospective: Clear The Bench Colorado Director Matt Arnold panelist at National Conference on Evaluating Appellate Judges

Three years ago today, 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” – hosted a National Conference on Evaluating Appellate Judges (on 11-12 August 2011) at the University of Denver (Sturm Hall, 2000 E. Asbury Avenue, Denver CO 80208).

Clear The Bench Colorado Director Matt Arnold was, 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.

Conference panelists and attendees shared widespread agreement on the need for substantive evaluation of judicial performance (even as opinions differed on the best means for reaching that goal) as a “vital component for ensuring public trust and confidence in the judiciary.”  The IAALS Post-Conference Final Report quoted Clear The Bench Colorado Director Matt Arnold on that topic:

Clear the Bench Colorado Director Matt Arnold echoed this sentiment: “Providing substantive information is not only important for the judges…It is absolutely critical to cementing respect for the process and respect for the rule of law.”

 Recommendations forImproving Appellate Performance Evaluation

A strong majority conference participants agreed that review of written opinions is an essential component of the evaluation process:

As the principle work product of appellate judges, and the primary—if not only—way in which appellate judges communicate the legitimacy of their decisions, conference participants were unanimous in expressing a need for some sort of opinion review, based upon appropriate criteria, as part of the JPE process. (IAALS Post-Conference Final Report)

Despite the widespread concurrence on the need to consider written opinions of appellate judges as the principal source for evaluations, few conference participants had concrete ideas on how to go about evaluating appellate opinions and presenting the results in a format useful to the public – the voters who have the final word.

(The exception, of course, was Clear The Bench Colorado‘s “Evaluating Appellate Judges“)

The conference’s final report, typically, punted:

“No clear direction emerged from the conference as to the approaches that should be taken in evaluating appellate opinions. Accordingly, IAALS established a task force to study this issue in detail and formulate recommendations for states interested in changing an existing, or incorporating a new, system for appellate opinion review as part of the judicial performance evaluation process.”

Several months (almost a year) later, the “task force” issued its report: AN OPINION ON OPINIONS: Report of the IAALS Task Force on Appellate Opinion Review

Unfortunately, the “task force” recommendations simply perpetuated the current model of failing to provide relevant, substantive evaluations of judicial performance against a standard of constitutionality.  Similar to Colorado’s current model of non-evaluative “evaluations” the report recommended training virtually guarantees a whitewash providing little or no information useful in distinguishing “good” judicial performance from bad:

Training for Opinion Reviewers:
Coordinators of performance evaluation programs should provide adequate training to opinion evaluators, to ensure consistency both in conducting the evaluation and in understanding the purpose of the evaluation—i.e., to assess the quality and clarity of the opinion rather than to revisit the particular outcome(s) reached.  (“Opinion on Opinions”, p.3)

Another year after that (two years after the conference), the IAALS “task force” issued an update:
AN INFORMED OPINION: Direct Opinion Review and Appellate JPE

Unfortunately, the updated IAALS report just parroted the legal establishment line about “official” JPE (Judicial Performance Evaluations) providing “substantive” information of any value to voters.

Moreover, the incestuous relationship of IAALS with the state’s “official” (taxpayer-funded) judicial “review” organization, the Colorado Office of Judicial Performance Evaluation (COJPE) (COJPE’s executive director at that time, Jane Howell, was one of five members of the “task force” appointed to generate recommendations) undermines the credibility of the “task force” report (which, unsurprisingly, endorses an expanded but otherwise fundamentally unchanged status quo).

There is a clear public need and demand for substantive, independent evaluations of judicial performance – but, just as clearly, the “official” COJPE “rubberstamp reviews” and consistent recommendations to reflexively retain incumbents (99% overall, and a staggering 100% “retain” recommendation record at the appellate court level) is NOT a credible solution.

Clear The Bench Colorado has shown the way towards a method of substantive, informative, well-researched and extensively documented evaluations of judicial performance - a model that could (and perhaps should) be emulated nationwide.

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.

District Court Judge upholds flawed election in West Metro Fire Protection District ballot secrecy case

Colorado District Court Judge Stephen M. Munsinger (Chief Judge, 1st Judicial District including Jefferson and Gilpin counties; most recently retained in office in 2010) upheld the results of a flawed election for the West Metro Fire Protection District in a ruling issued today (24 July 2014), despite evidence showing conclusively that the secrecy of ballots cast by electors was breached on multiple occasions.

The lawsuit and election challenge, filed by the Colorado Union of Taxpayers (CUT) on June 2nd, alleged that the West Metro elections systemically violated the right to a secret ballot (guaranteed in Article VII, Section 8 of the Colorado Constitution) theoretically enjoyed by Colorado voters.

Evidence presented at trial and in multiple filings before the court substantiated the key elements of the plaintiff allegations:

  • voted ballots were viewed simultaneously with voter identifying information
  • simultaneous visibility of votes and voter information was systemic, not accidental
  • voted ballots were systemically additionally marked with voter identifying data
  • lack of ballot secrecy was publicly known, potentially dissuading voter participation

Plaintiffs thus advanced the claim that the election was therefore invalid and moved to void the results:

The District planned and utilized a ballot processing procedure that did not protect the right to a secret ballot. The case law in Colorado is clear that because the Election violated the right to a secret ballot, the proper remedy is for the Court to void the election results ab initio. (Plaintiffs Closing Argument at 4)

The claim was further bolstered by expert testimony from Deputy Secretary of State Suzanne Staiert:

Based on her review of the information, Ms. Staiert opined that because the judges were trained in a certain way that a systemic violation of the secret ballot did occur because “every single ballot had a privacy violation as it was separated.” (Staiert Trial Testimony, 7/9/14). [Emphasis added]

Additionally, the District’s marking of ballots identifying votes/voters was noted as a particularly egregious and clear violation of election rules and constitutional language guaranteeing ballot secrecy:

Ms. Staiert testified that in her experience she has never encountered the use of sticky notes as used by the District in the Election to identify voters’ ballots and considered it a bad practice. She further testified that the District’s purpose and use of sticky notes in the Election “are inconsistent with our rules, they are inconsistent with the Constitution; it is a marking on the ballot that identifies the voter.” (Staiert Trial Testimony, 7/9/14).

Nonetheless, despite documentation and testimony by multiple witnesses substantiating breaches of ballot secrecy, Judge Munsinger upheld the election on the pretext that only “affirmative discovery” of electors’ votes could count as a constitutional violation:

To show a constitutional violation of this provision, Plaintiffs must show that election judges, in fact, affirmatively discovered electors’ votes. Jones v. Samora, 318 P.3d 462 (Colo. 2014). Voiding an entire election, ab initio, is appropriate only where it can be shown that the entire election was conducted without secret ballots. Id., at 471 (citing Taylor v. Pile, 391 P.2d 670 (Colo. 1964)). Finding that an entire election was conducted without secret ballots requires a showing that the ballots were not secret at the time electors voted, or that electors were intimidated or were otherwise not free to vote as they wished. Id. (Judgment at 3)

The problem with Judge Munsinger’s apparent invention of an “affirmative discovery” standard is that, absent voluntary confession of wrongdoing (or, presumably, waterboarding) it is impossible to prove.  Essentially, adopting such a standard for ballot secrecy effectively nullifies applicable election rules, statute, and constitutional language guaranteeing every voter the right to cast a secret ballot.

Quo Vadis?

Given that Judge Munsinger’s ruling appears to be in conflict not only with the evidence and testimony presented, but also with relevant case law precedent, it is likely that the case will be appealed to the next higher court.

It may still be some time before the final results of the West Metro election are known (or, indeed, actually final).

Read more about the West Metro Ballot Secrecy case:

Federal Judge Stretches Facts, Law to Find Colorado Gun Ban Legislation Constitutional

Federal Judge Marcia S. Krieger (Chief Judge, 10th Circuit District Court) seems to have stretched both facts and law in ruling against the individual rights of Colorado citizens and in favor of government restrictions and control in finding the 2013 Colorado “gun ban” legislation constitutional.

Judge Krieger’s 50-page ruling selectively omits relevant facts and applies a strained interpretation of “significant” or “substantial” infringements of rights as well as what constitutes “substantially related to an important government objective” in upholding the legislation.

The opinion’s prefatory background noted,

A number of claims were dismissed prior to trial. The issues at trial were: (1) whether § 18-12-302 and § 18-12-112 violate the Second Amendment of the United States Constitution, which guarantees the people’s right to “keep and bear arms;” (2) whether the phrase “continuous possession” in the grandfather clause of § 18-12-302 is so vague as to violate the people’s right to Due Process under the Fourteenth Amendment of the United States Constitution; and (3) whether the statutes violate Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132.

Krieger found that none of the issues met or surpassed the threshold of unconstitutionality.

 I. Standing to Sue the State in Challenging Constitutionality

The Colorado Attorney General (John Suthers) on behalf of the named defendant (Colorado’s Governor John Hickenlooper) and the State of Colorado challenged the right of the plaintiffs to sue the state (“standing”) to overturn the legislation at all.  Standing is an important issue in law:

To have standing, a plaintiff must show that he, she, or it has been or is being injured, that the challenged law causes the injury, and that the lawsuit will provide relief for the injury. [Ruling at 7]

Normally, standing to sue arises only after an actual injury has been sustained, but a constitutional challenge to a law can be brought in advance

if it can be shown that: (1) the plaintiff genuinely intends to engage in a course of conduct that is constitutionally protected but is proscribed by the challenged statute, and (2) if the plaintiff engaged in such conduct, there exists “a credible threat” that the plaintiff would be prosecuted under the statute. [Ruling at 8]

Judge Krieger ruled that none of the individual plaintiffs (Colorado Sheriffs and other named individuals in the lawsuit) have standing to challenge either the magazine ban legislation (§ 18-12-302 C.R.S.) or the background checks on private sales legislation (§ 18-12-112) and that many (even most – but not all) of the businesses and organizations filing suit also lacked standing.  However, since at least one associative entity (Women for Concealed Carry) was held to have standing, the court did not dismiss the suit entirely and did address the claims on the merits.

II. Analytical Framework for 2nd Amendment Challenges

Judge Krieger asserts that

Until 2008, most courts did not construe the Second Amendment to protect an individual’s right to possess and use firearms. Courts were guided by the Supreme Court’s decision in United States v. Miller, 307 U.S. 174, 179 (1939), which held that a right protected by the Second Amendment required “some reasonable relationship to the preservation or efficiency of a well regulated militia.” [Ruling at 20]

Although admitting that the previous collectivist interpretation of the 2nd Amendment was superseded by the 2008 Heller case, Judge Krieger clearly and expressly retained sympathy for the view that government restrictions of the individual “right to keep and bear arms” are presupposed to be valid and constitutional unless explicitly excepted – turning the notion of “rights” on its head.

Judge Krieger applied a “two-step approach” in determining the legislation’s constitutionality:

  1. Does the legislation “burden a right or conduct protected by the Second Amendment?”
  2. If it does burden a right or conduct, how much?

More specifically,

As part of this determination, the Court may consider whether the challenged law impacts firearms or firearm use, whether the affected firearms are currently in “common use,” whether the affected firearms are used for self-defense inside or outside of the home, and whether the restriction is akin to restrictions that were historically imposed and customarily accepted. [Ruling at 22]

and

If the challenged law burdens conduct protected by the Second Amendment, then a court must determine what level of constitutional scrutiny to apply. [Ruling at 22]

The “levels of constitutional scrutiny” are a legal construct that, essentially, allows a court to decide just how important your rights are versus a government claim of a “need” to impose legislation or policy mandates on the populace. Basically, the construct allows the courts to determine that “some rights are more equal than others” – and, essentially, that some “rights” must give way to government power.

The three levels generally recognized (with some variations in-between) are

  • “Rational Basis” – basically, if the government can come up with some reason for the legislation, your rights are forfeit
  • “Intermediate Scrutiny” – “which applies to laws that infringe upon, but do not substantially burden, fundamental individual rights” [Ruling at 23]
  • “Strict Scrutiny” – applying to laws “that substantially burden fundamental individual rights”

Note that the courts get to determine what the definition of “substantially burden” is on a case-by-case basis, per the whim of the judge.

III. Applying the Constitutionality Test to the Magazine-Ban Bill

Although Judge Krieger grants as to the fact that the Mag-Ban Bill “burdens the right of individuals to possess commonly-used weapons, such as handguns, for self-defense” [Ruling at 26], she spends a half-dozen pages tortuously arguing that the legislation does not impose a “severe” burden on that right, in order to justify applying the “intermediate scrutiny” test.  At that point, it’s a foregone conclusion.

For § 18-12-302 to survive intermediate scrutiny, Colorado must prove that its objective in enacting § 18-12-302 was “important” — that is, that that the statute was based on “reasoned analysis,” Concrete Works of Colo., Inc. v. City and Cnty. of Denver, 321 F.3d 950, 959 (10th Cir. 2003) — and that the provisions of § 18-12-302 are “substantially related” to its stated objective. [Ruling at 32]

The judge spent the next four pages arguing that

the evidence establishes both an important governmental policy and a substantial relationship between that policy and the restriction of § 18-12-302 [Ruling at 36]

in order to find the legislation constitutional.

 IV. Applying the Constitutionality Test to the “Background Checks on Private Sales” Bill

Similarly, Judge Krieger grudging concedes that” the right to “keep and bear” firearms implies some protection of the right to acquire firearms in the first place” before contending that “the burden imposed on the right is no more severe than the law already provides with regard to firearm sales” in commercial transactions. [Ruling at 37]

This contention flies in the face of the facts and evidence presented at trial and in documents filed with the court.

Despite the evidence that obtaining background checks for private sales and transfers – particularly outside of municipalities with multiple firearms dealers able to process the background checks – does impose a substantial burden, the judge found “that § 18-12-112 does not severely impact the Second Amendment right” to obtain arms, in order to (once again) apply the “intermediate scrutiny” standard. Again, the conclusion is foregone:

Accordingly, the Court concludes that § 18-12-112 is constitutionally permissible under the Second Amendment. [Ruling at 41]

 V. Vagueness Challenge

The “continuous possession” clause of the prior ownership exception in the Mag-Ban Bill (HB13-1224) was also challenged as being unconstitutionally vague, and subject to uneven, arbitrary enforcement “based on the personal predilections of individual law enforcement officers or jurisdictions” (which is an additional violation of the due process clause under the 14th Amendment).

Judge Krieger argues that although “it is possible that the “continuous possession” requirement may not be clear in every application” that such lack of clarity is not enough to “render the statute unconstitutionally vague.” [Ruling at 43,44]

She then cites as an example that “an owner who loaned out his or her magazine to another after July 1, 2013 would clearly not have maintained “possession” of it” – even though that directly contradicts the “technical guidance” on the “continuous possession” language promulgated by the governor and attorney general to “clarify” the legislation.

Ironically, Judge Krieger later relies on the existence of said “technical guidance” as a factor in “evaluating a facial challenge to a Colorado law” stating that a federal court must

“consider any limiting construction that a Colorado court or enforcement agency has proffered.” [Ruling at 45]

Notwithstanding Judge Krieger’s self-contradictory citation of facts and evidence, she holds that since

the Plaintiffs have failed to sustain their burden of establishing that § 18-12-302(2)(a) is unconstitutionally vague in all applications, the Court finds the statute permissible under the Fourteenth Amendment to the United States Constitution.  [Ruling at 46] (emphasis added)

Finally, Judge Krieger ruled that the claims of violating the Americans with Disabilities Act (ADA) were not substantiated because the legislation did not restrict “a government service, program, or activity” nor did the evidence prove a “disparate impact” to statistically significant numbers of people.

Thus, the court found in favor of Defendant John Hickenlooper and the state of Colorado on all counts, and held the legislation to be “compliant with the provisions of the Second and Fourteenth Amendments to the United States Constitution.”  [Ruling at 50]

 

Conclusion:

The 2013 Colorado legislation – both HB13-1224, banning certain “ammunition feeding devices” and HB13-1229, controlling private sales or transfers of firearms – clearly “infringes” upon individual rights secured and protected under the 2nd and 14th Amendments to the United States Constitution.  In addition, both pieces of legislation are practically unenforceable, constitutionally vague, and lend themselves to uneven, arbitrary enforcement “based on the personal predilections of individual law enforcement officers or jurisdictions” (an additional violation of the due process clause under the 14th Amendment).  Any court with fealty to the rule of law (or constitutional precedent) would have found them to be in violation of the Constitution (2nd and 14th Amendments).  Unfortunately, Krieger’s ruling appears to have more fealty to the rule of government and public passions than to the rule of law and individual rights.

The Colorado Sheriffs and other plaintiffs have already signaled their intent to appeal Krieger’s ruling to the 10th Circuit Court of Appeals and “if necessary all the way to the Supreme Court” of the United States.

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.

Read Judge Marcia Krieger’s 50-page Ruling here:

Read more about the Colorado gun case in these articles:

 

Colorado Republican Party files suit to form “party-sponsored” Independent Expenditure Committee despite legal ban

Despite failing earlier this year in an attempt  to get the Colorado Secretary of State to sanction a “party-sponsored”  Independent Expenditure Committee allowing the Colorado Republican Party to evade contribution limits (source and amount) applying to political parties, party chair Ryan Call has apparently decided to gamble the state party’s fortunes in the courts.  Despite lacking any assurance or binding opinion that forming a “party-sponsored” IEC is legal (in fact, the Secretary of State’s advisory opinion explicitly cautioned that even “a declaratory order would not prevent a person or organization from filing a campaign finance complaint against Petitioner”), Call rolled the dice by filing the IEC on Wednesday and immediately filing suit on Thursday in Denver District Court.

Interestingly enough, although the supposedly “independent” committee – filed as the Colorado Republican Party Independent Expenditure Committee – lists a physical address in Colorado (at state party headquarters), the registered agent for the committee, Harden Global, is located in Alexandria, VA (a Washington DC suburb).

Aside from the interesting twist in having the registered agent for the Colorado Republican Party Independent Expenditure Committee located across the country (a DC-area paid political consultant), the party’s lawsuit advances basically the same arguments that failed to convince the Colorado Secretary of State to issue a Declaratory Order several months ago.  Specifically, the party’s attorney continues to conflate the issue of party independent expenditures (for which there is legal precedent and constitutional protection) and the ability of the party to “sponsor, maintain, and operate an IEC” not subject to the contribution limits applying to political parties (for which there is neither precedent nor constitutional protection – indeed, the Colorado Constitution explicitly states the opposite).

Background and Constitutional/Statutory Framework

Following the passage of Amendment 27 in 2002 (enacted as Article XXVIII, Colorado Constitution), contribution limits have applied to organizations supporting or opposing candidates in state elections –including political parties.  Under current Colorado law, political parties may accept a maximum of $3,400 per year (state, county, local levels combined) in aggregate (total) contributions from any individual – and are prohibited from receiving contributions from corporations or labor organizations (unions).

Independent Expenditure Committees (IECs), a more recent statutory (vs. constitutional) creation, on the other hand, are not subject to contribution limits, and may support or oppose candidates, but only so long as the support and spending are” truly independent and not coordinated with the candidate.”  (cf OGREexposed.org analysis, Colorado GOP seeks approval for new independent expenditure committee)

Colorado Republican Party Lawsuit

Colorado Republican Party State Chair Ryan Call, represented by his law firm partner (and designated party attorney) Richard Westfall, filed a lawsuit seeking the Court’s advance blessing (via a Declaratory Order) for an entity combining the features of an “independent expenditure committee” (no contribution limits to amount and/or source) that would simultaneously be “sponsored, maintained, and operated” by the party and wearing the Republican party label  –
in many respects, seeking to “have their cake and eat it, too.”

The COGOP advanced the following main arguments in support of their lawsuit:

  • Supreme Court precedent affirming the right of political parties to make independent expenditures
  • Colorado’s constitutional/statutory framework is consistent with Supreme Court precedent
    • “Independent expenditures” are allowed so long as there is no coordination
    • “Any person” may make independent expenditures
    • “Political parties” are defined as a “person” under campaign finance law
    • “Independent Expenditure Committees” are not subject to contribution limits or source prohibitions

Additionally, the petition asserted that “the Republican party’s Independent Expenditure Committee will be structured and operated to ensure that no expenditures will be coordinated with candidates.”

Analysis of COGOP’s Arguments:

The COGOP lawsuit spends an inordinate amount of space asserting the right of political parties to make independent expenditures – a fact that is not in dispute.  The party is already able to make independent expenditures without necessarily having to form a separate committee (arguably, this is a default function of party organizations anyway).  The dispute arises from conflating the ability to make independent expenditures with the ability to receive contributions without limit to amount or source that is a special feature of IECs under Colorado law.

As noted in previously published analyses, the right for a political party to make unlimited independent expenditures is distinct from the legal ability of the party to raise funds not subject to contribution limits – which, like it or not, Colorado has imposed on political parties.

Additionally, the COGOP chair’s assertion of “significant structural and operational protections” preventing coordination is risible, as is the very notion that an entity owing its existence to the state party, with the director and management committee appointed personally by the state party chair, would be “independent” in any sense of the word.  Such an entity is almost by definition “pre-coordinated” – although it would not be constrained by party bylaws (bylaws theoretically restricting, for example, the IEC’s ability to spend or promise spending in order to influence primary elections).

Likewise, reliance on the party qualifying as a “person” under constitutional and statutory language, and thus eligible to form an IEC, also leads to an absurd result; since, following that logic, a candidate for office (subject to contribution limits) is likewise a “person” and would also be able to form an IEC as a “candidate-sponsored” entity (with similar “safeguards” against coordination, wink wink nudge nudge).

Indeed, the issue of “coordination” is central to the legality of the proposed “party-sponsored” IEC:

Petitioner must ensure the absence of “coordination” to avoid the potential for corruption or the appearance of corruption. (SOS Ruling at 9)

The Secretary’s advisory opinion closed in classically understated language:

The fact that the party exercises control over the appointment – and presumably removal – of the IEC’s executive director and management committee is potentially problematic.

Clear The Bench Colorado generally opposes the imposition of contribution limits or other restrictions on free speech in the civic and political arena (see, Speaking Out on Reforming Colorado’s Campaign Finance Laws) as unconstitutional abridgments of the 1st Amendment; in particular, the excessively complex and convoluted nature of campaign finance laws in Colorado challenge the Constitution, chill free speech, and curtail civic participation.  Any such laws that do remain in effect, however, must be fairly and equitably applied to everyone – with no “special exemptions” for favored entities.  It is our view that the COGOP Chair’s lawsuit is an attempt to create just such a “special exemption” and should be denied.

Read more about the COGOP Chair’s attempt to skirt Colorado Campaign Finance Law

Colorado Ballot Initiatives to “Clean Up The Courts?”

Colorado courts have been touted by the usual cheerleaders – the Colorado Bar Association (CBA), the Denver-based Institute for the Advancement of the American Legal System (IAALS), and of course in the Colorado Supreme Court Chief Justice’s “State of the Judiciary” speeches before the state legislature – as a shining example of juridical excellence and an “ideal” Colorado judiciary.

The truth – the actual “state of the Colorado judiciary” – falls a bit short of these lofty pronouncements.

In fact, some national organizations have gone so far as to label Colorado a “judicial hellhole.”

judicial-hellholes-2010_cover-231x300

Although the Colorado judiciary has certainly seen some improvement since “achieving” the “judicial hellhole” status in 2010/2011 (most notably, the departure of former Chief Justice Mary Mullarkey, who quit the bench in 2010 rather than face the votersJustice Alex Martinez, who left after receiving the lowest retention vote approval for any incumbent supreme court justice in state history, and most recently Chief Justice Michael Bender, who left upon reaching mandatory retirement age), our court system has retained several systemic deficiencies (starting with a lack of transparency in the so-called “merit selection” process for nominating and appointing judges, through the completely rubber-stamp nature of the “official” judicial performance “review” process, and the notoriously toothless “judicial discipline commission” responsible for sanctioning judicial misconduct).

A pair of ballot initiatives are seeking to address the last two of these systemic deficiencies on the November 2014 ballot.

The most recently filed and approved initiative (based on clearing the title board), listed as Proposed Initiative #94 and called by the initiative proponent the “Honest Judge Amendment“, seeks to transfer oversight and responsibility for investigating and sanctioning judicial misconduct from the current “Judicial Discipline Commission” – which operates under guidelines set by the Colorado Supreme Court, a classic “foxes watching the henhouse” situation – to an Independent Ethics Commission (which would at least have the benefit of not being “of the lawyers & judges, for the lawyers & judges”).

The initiative proponent, an issue committee named “Clean Up The Courts“, lists the following arguments in favor of the initiative:

Why this amendment is needed:

  • The constitution currently states judges may be disciplined for any violation of the Code of Judicial Conduct.
  • But the Supreme Court currently issues judicial discipline rules.
  • There is a conflict of interest in judges issuing rules about judicial discipline.
  • The Supreme Court acted on that conflict and issued an unconstitutional rule that means judges cannot be disciplined for anything that can be appealed.
  • The rule eliminated the “any violation” standard in the constitution.
  • Over the last 10 years, 89.5% of complaints against judges have been dismissed due to the rule.
  • There has not been a published case of judicial discipline since 1986.
  • You are not protected by the Code of Judicial Conduct when judges issue rulings.
  • The Supreme Court is completely above the law.
  • The only way out of this unlawful and unethical situation is to amend the constitution so there is no longer a conflict of interest in judicial discipline.

How this amendment solves the problem:

  • The constitutional “any violation” standard is revived.
  • Discipline is transferred to the Independent Ethics Commission, so there is no longer a conflict of interest in judicial discipline.
  • The constitution is amended to specifically state that if a judge violates the Code of Judicial Conduct in an appealable order, the judge can be disciplined.
  • If there is a finding of probable cause, discipline proceedings are public.
  • Judges do a better job because they know they will be held accountable.
  • You are protected from judicial misconduct.
  • You can have more confidence in judges.

In numeric order, the first of these initiatives, Proposed Initiative #79, seeks to increase the threshold of votes required for a judge to stay in office in Colorado’s uncontested judicial retention elections from the current simple majority (50% +1 of total votes cast, including undervotes) to a two-thirds majority:

Shall there be an amendment to the Colorado constitution increasing the number of “Yes” votes required for a justice or judge to be retained in office from a simple majority to a two-thirds majority in the November 4, 2014, general election, and in every election thereafter?

The initiative proponent, an issue committee named “Clean Up The Courts“, lists the following arguments in favor of the initiative:

Why this amendment is needed:

  • The unethical situation related above has gone unnoticed for almost 30 years because people don’t pay enough attention to judicial retention elections.
  • Judges run in uncontested retention elections.
  • Judges currently only have to get a majority vote even though there is no opposition.
  • Judges easily get retained due to a lack of information.
  • Judges easily get retained due to voter apathy.
  • A majority vote is what is used when we want a politician to be partial or biased.
  • A majority vote is what is used if we want a certain policy adopted.
  • We want judges to be the exact opposite of partial or biased.
  • We want judges to be fair and impartial.
  • So a different measurement should be used.

How this amendment solves the problem:

  • Requiring a two-thirds majority vote brings greater scrutiny to judges.
  • A flawed process is corrected without turning to contested political elections.
  • Judges approved by two-thirds of voters are more likely to be fair and impartial.
  • You will have more confidence in judges approved by a two-thirds majority.
  • You have the right to expect quality judges who receive a two-thirds majority vote.
  • Judges will be more accountable and more likely to follow the rule of law.
  • Judges will respect you and the law.
  • You deserve to have this much confidence in the judiciary.

It’s noteworthy that the opposition to these initiatives through the title-setting process has come from the Colorado Bar Association, previously engaged in unethical actions opposing judicial reform and accountability efforts through illegal funding of campaigns supporting incumbent judges in the 2010 election cycle.  The CBA hired attorney Marc Grueskin, also active behind the scenes in opposing judicial accountability efforts, to challenge the initiatives before the title board (unsuccessfully, as it turns out).

As noted in a press release from the Clean Up The Courts organization, hiring Grueskin’s firm to oppose the initiatives is itself of dubious ethicality – since the law firm “is managed by a current member of the State Commission on Judicial Performance” – Heather Hanneman.

“The conflict of interest in Heather Hanneman’s actions is glaring,” said Chris Forsyth, an attorney who has practiced for 20 years and who is a proponent of the initiatives.

Hanneman is on the state performance commission which is charged with evaluating the performance of statewide judges and recommending to the public whether the judges should be retained. The judges at issue include Court of Appeals judges and Supreme Court justices.

“All appearances are that Hanneman’s firm is assisting those judges with covering up judicial misconduct and keeping the truth from the public. The public has the right to expect her to disclose judicial misconduct; not cover it up,” Forsyth said.

The Colorado Bar Association’s opposition to the initiatives highlights the far-too-cozy relationship of the bar association with the judiciary, and indicates a potentially corrupt relationship among the legal establishment that is not apparent to the average voter – and, perhaps, underscores the need for precisely the types of reform sought by these initiatives and other efforts.

The initiatives, irrespective of merit, face an uphill climb before even being placed before the voters; under the Laws governing the initiative process in Colorado, 86105 valid signatures are needed to qualify for the ballot, which is a significant (although not insurmountable) number for a grassroots initiative lacking major special-interest funding.  (At this time, the  ”Clean Up The Courts” organization is relying on volunteer petition circulators – solicited on the organization’s “Pitch In!” page)

The ”Clean Up The Courts” organization is not affiliated with Clear The Bench Colorado; however,

 Our View: Citizen participation is vital in restoring Accountability and Transparency to Colorado Courts

“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.” – Abraham Lincoln

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 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 strikes down SOS emergency rule to block vote counting for disqualified school board candidate

The Colorado Supreme Court issued a ruling last week striking down the election-day emergency rule issued by the Colorado Secretary of State to block counting of votes for an ineligible candidate in the Adams-12 school board elections last November (the case was argued before the Colorado Supreme Court at the end of January).  The ruling upholds part of a lower court ruling that awarded an electoral “win” to the ineligible candidate, but sends the bulk of the substantive issues back to trial court to resolve the results of the contested election.

The Colorado Supreme Court ruling struck down the emergency rule based on two factors:

  1. Conflict with statutory language governing withdrawals and vacancies for candidates; and
  2. Conflict with statutory language granting courts – not election officials – authority to determine challenges to candidate eligibility

The statute cited by the court majority – C.R.S. 1-4-1002 – governs “withdrawals from and vacancies in nominations and designations”  - expressly deals with vacancies occurring for a variety of reasons after certification of candidacy and issue of ballots but before election day:

vacancy in a party nomination occurring less than eighteen days before the general election that is caused by the declination, death, disqualification, or withdrawal of any person

However, that statute applies expressly to partisan elections – which were explicitly excluded from application of the rule, in the language of the rule, as noted in Justice Eid’s dissent:

Except in the case of a vacancy to be filled in accordance with the provisions of section 1-4-1002 (2.3) or (2.5) [the partisan vacancy provisions], if the ballots are already printed, the votes cast for the withdrawn or deceased candidate are invalid and shall not be counted. [Dissent at 2, footnote 1]

The court’s majority is on somewhat less shaky ground in citing statute(s) requiring “issues regarding a certified candidate’s eligibility to be determined by the courts.” [Ruling at 3]  The majority opinion raises the concern that under the SOS Rule, determination of a candidate’s qualification for office could be “unilaterally” determined by election official(s), potentially depriving candidates of due process.

As noted in the majority opinion,

Once an election official has verified a petition or certificate of designation or nomination and determined that it appears to be sufficient, the election code expressly grants courts – not election officials – the authority to determine subsequent questions concerning a candidate’s eligibility. [C.R.S. 1-4-1002(2.5)(a)]

The majority also noted that “challenges to a candidate’s eligibility can be raised by any eligible elector at multiple junctures in the election process, and specifically that Section 1-11-201(1)(a) expressly provides that an election challenge may be brought on grounds that “the candidate elected is not eligible to hold the office for which elected.” [Ruling at 21]

 Indeed, a post-election challenge has been filed in Broomfield District Court concerning the school district director election underlying this case.  Any issues in that election concerning the challenged candidate’s eligibility for office, and any potential controversy regarding the school district director vacancy provision in section 22-31-129, are properly resolved by that court; we do not opine on the merits of that dispute here. [Ruling at 3]

The dissent notes, however, that under the SOS rule, any determination by the “designated election official” is not unilateral, but remains subject to judicial review under the procedures set forth in section 1-1-113(1)” [Dissent at 4]

Most importantly – although the majority opinion expressly declined to rule on the merits of whether the ineligible candidate was – or could be – “duly elected” despite her ineligibility to run for the contested office in the first place – the ruling, by failing to expressly strike down the district court’s “duly elected” rationale, may have prejudiced the trial court in the pending election contest in Broomfield District Court and lead to the facially absurd result that a candidate ineligible to run for or hold office could “win” an election and “shifting the power of selecting a candidate from the electorate to the school board” vacancy committee. [Dissent at 6]

References and Analysis:

Colorado’s ballot access statute (§ 1-4-501(1) C.R.S.) states: “No person is eligible to be a designee or candidate for office unless that person fully meets the qualifications of that office as stated in constitution and statutes of this state on or before the date of the term of that office begins.”

Ergo, “a run for office by an unqualified individual is void rather than voidable. It should be considered “a nullity, invalid ab initio, or from the beginning, for any purpose.” Delsas v. Centex Home Equity Co., 186 P.3d 141, 144 (Colo. App. 2008).  (SOS Appeal for Review at 28)

Quo Vadis?

The election contest now moves to the Broomfield District Court for trial proceedings.

It may still be some time before the final results of the Adams-12 School Board election are known (or, indeed, actually final).

Read more about the Adams-12 School Board Candidate Eligibility case:

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 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.

Confusion over University of Colorado concealed-carry policies adds controversy to Colorado Republican State Assembly

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.

The University of Colorado’s history of pursuing policies to ban guns on campus, added to CU’s reputation as a bastion of left-leaning ideology, had already made the selection of the university as the venue to host the 2014 Colorado Republican State Assembly controversial to many Republicans – particularly given the centrality of gun-rights issues in the state’s politics, as demonstrated in last year’s historic recall of two sitting state legislators (now former Senate President John Morse, and former state senator Angie Giron) and the resignation of a third (former senator Evie Hudak) facing a looming recall campaign.

Over the past week, rumors have been flying that the University of Colorado planned to ban licensed concealed-carry at the Coors Events Center (site of the 2014 Republican Assembly), in violation of state law.  These rumors were given wider circulation and credence after reports that COGOP State Chairman Ryan Call confirmed that no firearms were allowed at the assembly and then proceeded to joke about it at the county chairs meeting when the subject was raised.

Clear The Bench Colorado‘s inquiries with party officers and staff confirmed their understanding stated that it was “CU venue policy” to ban firearms at on-campus events; following up with CU Regent Sue Sharkey, she stated that it was her understanding that the policy applied to ticketed events, but was unsure as to whether that included the state assembly.

After being called out on the issue, Chairman Ryan Call announced at the CD3 Congressional Assembly earlier today that “he worked with the CU Board of Regents to ensure that our 2nd Amendment rights were upheld.”

So - Clear The Bench Colorado went straight to the source.  The evidence shows that Chairman Call has been “factually challenged” all along – first, that the university would (or legally could) ban licensed concealed-carry on campus, and second in claiming credit for effecting any change in university policy.

The fact of the matter is that the University of Colorado never planned to ban licensed concealed-carry from the state assembly in the first place.  According to Ryan Huff, spokesman for the CU Boulder campus, anyone possessing a valid concealed-carry permit can bring firearms into the Coors Event Center (or anywhere on the CU-Boulder campus) – per the requirements of state law.

Mr. Huff also explained that the CU policy of banning concealed-carry from CU ticketed events such as football or basketball games was based on a contract included in ticket sales (and duly noted, in fine print, on each ticket sold) – which may have been the source of the confusion.

Although obligating individuals to “sign away” a fundamental constitutional right via ticket sales remains problematic, that policy at least has the saving grace of being a voluntary transaction – easily avoided by not purchasing any ticket to CU sporting events.

As has been repeatedly demonstrated (most recently and, again, most tragically at Fort Hood), 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 “gun laws” on trial in Federal court

The legal challenge to the constitutionality of the “gun legislation” rammed through the 2013 Colorado state legislative session that made Colorado the national epicenter of the debate on ‘gun rights’ (the right of the people to “keep and bear arms“) on political, policy, AND constitutional grounds is wrapping up the second and final week of trial proceedings – with tremendous potential implications for law and public policy on the state and national level.

The political question on the wisdom and public acceptance of the legislation appears to have been resoundingly answered with the first-ever, historic recall of two sitting state legislators (now former Senate President John Morse, and former state senator Angie Giron) and the resignation of a third (former state senator Evie Hudak) facing a looming recall campaign.

As a policy issue, the debate centers around whether any of the recently-enacted legislation would in fact have any impact whatsoever on promoting public safety – with the consensus view that, since the legislation fails to target criminal behavior or activity, the answer is also a resounding negative.

However, the aspect with the most potentially far-reaching implications, for Colorado and the nation at large, revolves around the constitutional questions on gun rights issues raised by the legal challenge (originally filed by 55 of 62 of Colorado’s elected Sheriffs) to the permissibility of the most prominent pair of the 2013 legislature’s pieces of legislation concerning firearms under the U.S. Constitution.

The Colorado Sheriffs’ Lawsuit – filed in the United States District Court for the State of Colorado (i.e. federal, not state, court) challenges the constitutionality of HB13-1224 “Concerning Prohibiting Large-Capacity Ammunition Magazines” and HB13-1229 “Background Checks for Gun Transfers” as violations of the 2nd and 14th Amendments to the United States Constitution.

The Plaintiffs – led by Colorado Sheriffs and joined by numerous public-policy organizations, industry groups, and individual citizens – advance five major claims under the lawsuit, as listed below in the Final Pre-Trial Order:

  1. Claim 1: C.R.S. § 18-12-302 (HB 1224) – Prohibition of the Possession, Sale, or Transfer of Magazines Violates the Second and Fourteenth Amendments of the United States Constitution
  2. Claim 2: C.R.S. § 18-12-302 (HB 1224) – Grandfather Clause Permitting Possession of Magazines With a Capacity Greater than 15 Rounds Only if the Magazine was (1) Owned as of July 1, 2013; and (2) the Individual has Maintained “Continuous Possession” of the Magazine Violates the Second and Fourteenth Amendments of the United States Constitution.
  3. Claim 3: C.R.S. § 18-12-302 (HB 1224) – Grandfather Clause Permitting Possession of Magazines With a Capacity Greater than 15 Rounds Only if the Magazines were (1) Owned as of July 1, 2013; and (2) the Individual has Maintained “Continuous Possession” of the Magazine is Unconstitutionally Vague Under the Fourteenth Amendment of the United States Constitution.
  4. Claim 4: C.R.S. §§ 18-12-112 and 18-12-302 (HB 1224 & 1229) Violate the Americans with Disabilities Act.
  5. Claim 5: C.R.S. § 18-12-112 (HB 1229) – Restrictions on Firearm Sales and Temporary Transfers Violate the Second and Fourteenth Amendments of the United States Constitution.

Plaintiffs noted in the introduction to their Final Trial Brief that

The Tenth Circuit follows the two-step analysis most circuits have adopted for Second Amendment challenges to state and local regulations of firearms in the wake of Heller and McDonald. The Court first should consider whether the regulation burdens Second Amendment rights. If it does, then the burden shifts to the government to justify the restriction based upon a sliding scale.

(Depending on the demonstrated severity of the burden on the exercise of rights protected under the Second Amendment, the “sliding scale” ranges from ‘strict scrutiny’ (for “severe” infringements) – through ‘heightened scrutiny’ (for “significant” infringements) to ‘intermediate scrutiny’ (for less “substantial” infringements); and the government has the burden of proving that restrictions imposed are “substantially related to an important government objective”).

Plaintiff argued, both in the Final Trial Brief and in witness statements presented at trial this week and last, that the infringement of rights protected under the Second Amendment were severe or substantial, and that the government ”can offer no evidence that any public benefit is derived from such an onerous scheme” as the magazine ban and “universal” background check mandates imposed on citizens and therefore failed to meet any level of scrutiny for infringing upon fundamental rights.

The Defendants (the Colorado Attorney General, arguing in defense of the legislation enacted by the state legislature and signed into law by Colorado Governor John Hickenlooper) argued in the Governor’s Trial Brief that the legislation is merely on the “periphery of the Second Amendment right” rather than a substantial infringement of a core, fundamental constitutional right.

The Attorney General’s arguments did agree with Plaintiff that “the rigor of judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the burden on that right” – however, the AG argued that the ‘sliding scale’ should be moved all the way to the left, ”requiring the party challenging the law’s constitutionality to demonstrate that it substantially burdens the Second Amendment right before applying any type of heightened scrutiny.” (Governor’s Brief at 8)

Plaintiffs Witnesses at trial this week and last amply documented how the legislation substantially or severely infringed upon their exercise of fundamental rights guaranteed under the Second and Fourteenth Amendments – as well as the disparate impact on the disabled plaintiffs additionally sanctioned under the Americans with Disabilities Act (ADA).

Defendants Witnesses countered with emotional testimony on mass shootings (Sandy Hook, Tucson, Aurora, and even Columbine) without confirming a nexus between any effect of the challenged legislation and the mass shootings to which the legislation is rhetorically linked.

In short: the government has failed to prove how restricting the constitutional rights of all citizens – effectively, disarming the innocent and potential victims – would serve any public policy purpose in preventing violent crime.

Conclusion:

The 2013 Colorado legislation – both HB13-1224, banning certain “ammunition feeding devices” and HB13-1229, controlling private sales or transfers of firearms – clearly “infringes” upon individual rights secured and protected under the 2nd and 14th Amendments to the United States Constitution.  In addition, both pieces of legislation are practically unenforceable, constitutionally vague, and lend themselves to uneven, arbitrary enforcement “based on the personal predilections of individual law enforcement officers or jurisdictions” (an additional violation of the due process clause under the 14th Amendment).  Any court with fealty to the rule of law (or constitutional precedent) will strike both.

It is likely that, given the intensity of the ongoing political and policy debate, the case will be appealed, no matter the outcome – potentially all the way to the Supreme Court of the United States.  If so, this case could profoundly alter the legal precedents on gun rights nationwide, and for years to come.

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

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

Ultimately, though – it’s worth the effort.

Read more about the Colorado gun case in these articles:

 

Clear The Bench Colorado marks 5th anniversary as CO’s premier judicial accountability organization, may expand

“Time flies when you’re having fun…”

Hard to believe, but it has already (only?) been 5 years since the founding of our state’s only effective judicial accountability organization, Clear The Bench Colorado.

Starting as nothing more than an idea – knowing that Colorado judges are accountable to the people, that Colorado voters deserve more information on our state’s powerful 3rd branch of government - Clear The Bench Colorado has effected a much-needed (and long-overdue) awakening about the role and importance of Colorado’s judiciary.

Clear The Bench Colorado played a role in “encouraging” the self-removal of two of the worst state supreme court justices in Colorado history (Chief Justice Mary Mullarkey quit the bench in 2010 rather than face the voters, and Justice Alex Martinez quit the bench after receiving the lowest voter approval of any supreme court justice in state history some time after the 2010 elections) – resulting in a much-improved composition of our state’s highest court.

In fact, over the last couple of years, court challenges have achieved the ONLY significant victories for freedom in Colorado – since CTBC’s founding, overturning the Amazon Tax, overturning the CU Gun Banupholding the Douglas County school choice programoverturning unconstitutional legislation restricting petition-gathering for ballot initiatives, and (most strikingly) overturning a lower court to uphold the constitutionality of Colorado’s school funding system (the Lobato  statewide school funding case, called the “SuperBowl of school funding litigation”) saving the state’s taxpayers over $1 BILLION annually (as predicted by CTBC’s analysis of the case) – a tremendously impactful win credited in large part to Clear The Bench Colorado‘s efforts to increase judicial accountability.

Clear The Bench Colorado helped Colorado voters to “Know Your Judge” with substantive evaluations of judicial performance prior to the November 2012 and 2010 elections – the ONLY source of reliable, substantive information on judges appearing on the ballot.

Statewide legislative elections in 2012 were significantly impacted (if not effectively pre-determined outright) by results of the Colorado Supreme Court’s December 2011 rulings on the reapportionment of state legislative districts – leading to lopsided majorities for Democrats in both chambers of the state legislature, despite actually receiving fewer votes overall (45% to 48.5% of total votes/candidates)

Clear The Bench Colorado‘s successes have been noted not only in Colorado, but in other states as well; on our 5th anniversary, CTBC is finalizing arrangements to expand the brand and reach of judicial accountability to other states sharing the “judicial retention vote” model, as well as expanding our reviews of judicial performance to the county & district court level here at home.

BOTTOM LINE:

Few, if any, grassroots organizations have had as much impact on the political and civic arena as has Clear The Bench Colorado over the last five years.

Will Clear The Bench Colorado continue to help reform Colorado’s judiciary by promoting transparency and accountability, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts, over the next few years?

Will Colorado be able to count on CTBC’s useful and substantive evaluations of judicial performance in coming elections?

The choice is yours, Colorado.

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 takes appeal on constitutionality of Douglas County School Choice program

The Colorado Supreme Court announced Monday that it granted the petition for writ of certiorari (request to review an appeal) on the constitutionality of the Douglas County School Choice program.

The court’s long-expected decision to grant the review comes just over one year after an appellate court ruling that upheld the constitutionality of the Douglas County “Choice Scholarship Program” (Colorado Court of Appeals Nos. 11CA1856 & 11CA1857, “Taxpayers for Public Education v. Douglas County Board of Education”)  that had reversed a lower court ruling that had blocked implementation of the program in August 2011.

The legal battle over the constitutionality of the Douglas County “Choice Scholarship Program” – which allows K-12 students who reside in the Douglas County School District and have been enrolled in a Douglas County public school for at least one year to apply for a Choice Scholarship to attend the private or charter school of their choice – has gained national attention as the “ground zero” in the fight for school choice across the country.

Opponents of the school choice program (including the ACLU, Americans United for the Separation of Church and State, and a variety of front groups and individuals affiliated with local, state, and national teacher’s union and other special-interest groups) have argued that the school choice voucher program violated the state school finance act and provisions of the Colorado Constitution prohibiting ”aid to or support of religion and religious organizations” with taxpayer funds.

However, the appellate court resoundingly rejected those arguments, relying not only on the clear language of the Colorado Constitution, but also upon relevant Supreme Court of the United States precedent in a similar case (Zelman v. Simmons-Harris, 2002).

The Appeals Court ruling stated that since the Choice Scholarship Program “is intended to benefit students and their parents, and any benefit to the participating schools is incidental…”

“Such a remote and incidental benefit does not constitute . . . aid to the institution itself within the meaning of Article IX, Section 7.”  Zelman, 536 U.S. at 652

The court noted that “CSP is neutral toward religion,and funds make their way to private schools with religious affiliation by means of personal choices of students’ parents.”

As noted by Douglas County School District Board of Education Director Craig Richardson,

The Colorado Supreme Court’s decision to review the Court of Appeals decision in favor of DCSD “does not mean that the court disagrees with the Court of Appeals ruling,” Richardson said.

“It simply means that the court recognizes the importance of the case for our state and our country,” Richardson said.
(Colorado Supreme Court to Review Judicial Ruling that DCSD Scholarship Program is ConstitutionalColorado Observer, 17 March 2014)

Analysis:

Plaintiffs have until April 28th to file opening briefs in the appeal; respondents then have a month to file a response, after which plaintiffs have another month to reply.  Once all briefs and responses have been filed, the Colorado Supreme Court will set a date to hear oral arguments by both sides (so, it will be late Summer at the earliest, more likely early-to-mid Fall, before the case is presented to the court) and a ruling is unlikely to be issued until several weeks, even months, after that.

Based on the body of evidence presented in the trial court and appellate court arguments, the comprehensiveness and clarity of the analysis of constitutional and statutory issues in the appellate court ruling, and guiding Supreme Court precedent (Zelman) in a similar case, the new & improved (minus Mullarkey, Martinez, and Bender) Colorado Supreme Court is unlikely to reverse the substance of the Colorado Court of Appeals ruling (some technical issues, such as standing to bring the lawsuit, are subject to review as well).

Unfortunately, the implementation of a highly popular (and innovative) program to extend school choice in the 3rd-largest school district in the state, establishing a precedent for expanded educational opportunity for children across Colorado and nationwide, will have been delayed for several years, and at a significant cost (Note: the DCSD Board raised funds for the legal defense of the program through private contributions, not by using taxpayer money – learn more at Great Choice Douglas County).

 Additional References:

Clear The Bench Colorado analysis of Colorado Court of Appeals ruling (28 February 2013)

Clear The Bench Colorado‘s analysis of oral arguments before the Colorado Court of Appeals
(20 November 2012)

For another analysis of last November’s oral arguments (with more emphasis on policy implications over legal issues), read Education Policy Analyst Ben DeGrow’s superb summary.

Click here for a comprehensive review of the Douglas County Choice Scholarship Program (including program information, video and audio interview and news clips, news and commentary highlights and links to many legal documents in the case)

Bottom Line:
The Douglas County School Choice case not only may set a decisive precedent on parental choice in educating their children, it also touches upon important constitutional issues such the separation of powers between branches and levels of government, establishment of religion, and collection and allocation of tax dollars, but ultimately comes down to a very basic and fundamental issue:
who decides how to educate Colorado’s children?

Clear The Bench Colorado believes that the decision should be in the hands of parents –
NOT in the hands of the courts.

Cases such as this 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.

 

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