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


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.

 

Federal Appeals Court rules Colorado Anti-TABOR lawsuit can proceed

A three-judge panel on the Federal 10th Circuit Court of Appeals ruled Friday that a lawsuit challenging the Taxpayer’s Bill of Rights (TABOR) amendment to the Colorado Constitution may proceed, and remanded the case to federal district court to proceed to trial on the merits.

Byron White Courthouse 10th Circuit Denver

The appeals court ruling addressed only the issue of whether the plaintiffs (33 “educators” and legislators who are “mostly Democrats” with a few token “Republicans”) have legal standing to sue, and whether the lawsuit is barred by the “political question” doctrine, and explicitly did not address the merits (or lack thereof; the case has been widely derided as frivolous and groundless) of the lawsuit:

The merits of the case are not before us. We express no view on the substantive issues and intend none. We consider solely standing and the political question doctrine.  (Ruling at 6)

Establishing standing to sue requires, first and foremost, that the plaintiff “has suffered a concrete and particular injury in fact that is either actual or imminent” – which the court affirmed for the plaintiffs who are current or former legislators, since

Legislator-plaintiffs contend they have been injured because they are denied the authority to legislate with respect to tax and spending increases. (Ruling at 21)

The more significant element of the appeals court ruling addresses the “political question” doctrine – the issue of whether the claims brought by the lawsuit may properly be addressed by the courts at all.

 As a threshold matter, we must decide if the political question doctrine categorically precludes Guarantee Clause challenges against state constitutional amendments adopted by popular vote. (Ruling at 29)

The appeals court concluded that guiding U.S. Supreme Court precedent (Luther v. Borden, 48 U.S. 1 (1849) and Pacific States Telephone and Telegraph Company v. Oregon, 223 U.S. 118 (1912), respectively, does not preclude ”merits consideration in this case.”  (Ruling at 29)

Both the Luther and Pacific States claims differ from those at bar. Importantly, both cases involved wholesale attacks on the validity of a state’s government rather than, as before us, a challenge to a single provision of a state constitution.  (Ruling at 31)

Although acknowledging that “[t]here can nevertheless be little doubt that these cases include language suggesting that Guarantee Clause litigation is categorically barred by the political question doctrine” the appeals court relied on another Supreme Court ruling (Baker v. Carr, 369 U.S. 186 (1962), advancing an equal protection claim) that established a “need for case-by-case inquiry.” (Ruling at 32)

 Baker then announced six factors that render a case non-justiciable under the political question doctrine:
[A] textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

“Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question’s presence.” Id.

Relying on the Court’s directive in Baker that “there should be no dismissal for non-justiciability on the ground of a political question’s presence” absent one of the specifically identified factors, 369 U.S. at 217, we reject the proposition that Luther and Pacific States brand all Guarantee Clause claims as per se non-justiciable. (Ruling at 35)

The appeals court opinion on numerous occasions emphasizes the narrowness of the ruling:

Governor Hickenlooper argues that the operative complaint fails to state a claim upon which relief can be granted because Colorado’s government remains republican in form after the passage of TABOR. The Governor did not assert this traditional Fed. R. Civ. P. 12(b)(6) argument to the district court with respect to the Guarantee Clause claim; he sought dismissal of that claim only on standing, prudential standing, and political question grounds.

Because the order at issue in this limited interlocutory appeal does not include a decision as to whether the Guarantee Clause claim asserted by plaintiffs plausibly states a basis for relief under Fed. R. Civ. P. 12(b)(6), we cannot address that question. We stress that our decision on plaintiffs’ Guarantee Clause claim is quite limited, leaving all issues other than standing, prudential standing, and the political question doctrine to the district court. (Ruling at 47)

 Quo Vadis?

The 10th Circuit Appeals Court ruling simply returns the case to trial in federal district court, where the case will now be judged on the merits of the plaintiffs’ argument and claim for legal relief.  The plaintiffs argument would seem to be weak, since  constitutional constraints on government are, by definition, constitutionally allowed and present in both the U.S. Constitution and the Colorado Constitution.  The “Guarantee Clause” (United States Constitution, Article IV, Section 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government“) does not grant carte blanche to elected representatives to rule as unrestricted tyrants and dictators between elections.

The attorney general does have the option to appeal the 3-judge panel’s ruling to the 10th Circuit en banc (meaning, the entire 10th Circuit would review the ruling – a means of ensuring that a bad “draw” of judges doesn’t determine the outcome of a case).

Now that the lawsuit is returning to trial, it will cost Colorado taxpayers hundreds of thousands in legal fees and costs, and will almost certainly ultimately end up before the United States Supreme Court, since overturning a state constitutional amendment by judicial fiat would have immense implications for the citizens’ initiative process and the right of the people to limit government power by constitutional constraints nationwide.

If “We The People” cannot set constitutional limits on government power, then the very founding principles of this nation – indeed, the foundations of Liberty itself – are at risk.

Reference state’s Motion to Dismiss Plaintiffs’ Substitute Complaint (which was filed back in August 2011 by Governor Hickenlooper and Attorney General Suthers and analysis of the state’s Motion to Dismiss).

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

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

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

Ultimately, though – it’s worth the effort.

 

Colorado Republican Party Chair Petition For Declaratory Order Sanctioning “Independent Expenditure Committee” Rejected – but Advisory Opinion Leaves Wiggle Room for IEC to Proceed

The Colorado Secretary of State today rejected a petition seeking a “Declaratory Order” which would have sanctioned a “party-sponsored” Independent Expenditure Committee allowing the Colorado Republican Party to evade contribution limits (source and amount) applying to political parties – but issued a non-binding “advisory opinion” expressing the belief that such a committee could be legal.

The “Petition for Declaratory Order” was filed by Colorado Republican Party Chair Ryan Call last November and received a public hearing in early January (receiving public comment overwhelmingly in opposition). (see, Colorado Republican Party Chair Seeks Exemption to State Campaign Finance Law, 10 January 2014)

The Secretary of State ruling rejected the Petition largely on jurisdictional grounds (as predicted by Clear The Bench Colorado‘s previously published analysis), noting that any order issued by the SOS  ”would not terminate the uncertainty or conflict giving rise to the proceedings” and further noting that “a declaratory order would not prevent a person or organization from filing a campaign finance complaint against Petitioner.”  Even more pointedly,

A declaratory order would not terminate a controversy or remove an uncertainty for the Petitioner, because courts fail to give deference to the Secretary’s opinion. (SOS Ruling at 4)

Interestingly, the case law cited (six separate citations in the Secretary’s ruling) confirming that the Secretary of State’s advice and opinions are NOT “entitled to deference” by the courts was the attack filed by the left-leaning “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) against Clear The Bench Colorado in 2010.

Having made clear that the Petitioner (Colorado Republican Party Chair Ryan Call) could have no legal reliance on the Secretary’s opinion, the Secretary proceeded to register an (advisory) opinion anyway – from which the party chair at least might take some comfort (albeit at considerable legal risk – indeed, the Secretary prefaced the opinion by stating that it “will likely result in a lawsuit in state or federal court or before an ALJ”).

The Secretary’s advisory opinion largely condoned the actions proposed by the COGOP chair, albeit with several important caveats:

It is the Secretary’s opinion that a political party may form an independent expenditure committee (IEC) for the purpose of making independent expenditures and may raise funds in any amount and from any permissible source.  But a political party IEC must ensure that its expenditures are truly independent and in no way coordinated with any candidate or the political party. (SOS Ruling at 6)

However, as previously noted, the very notion that an entity owing its existence to the state party, using the party name, with the director and management committee appointed personally by the state party chair, would be “independent” in any sense of the word, is simply risible. Such an entity is almost by definition not “independent” and would be “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).

The Secretary’s reliance on the party qualifying as a “person” under constitutional and statutory language, and thus eligible to form an IEC, likewise 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 using his name (with “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)

Unfortunately, as the Secretary’s ruling makes clear, what constitutes “coordination” is a legal grey area:

While state law does not define coordination, under Secretary of State Rule 1.4, an expenditure is coordinated with a candidate or political party if the expenditure or spending is “at the request, suggestion, or direction of, in consultation with, or under the control of” a candidate committee or political party. (SOS Ruling at 10)

The Secretary’s ruling further notes,

There is little Colorado case law  discussing the definition of “coordination” as it applies to Colorado campaign finance law. (SOS Ruling at 11)

In fact, what case law does exist has shown that absent an airtight confirmed “smoking gun” to the extent of a notarized confession signed in the perpetrator’s blood in front of multiple witnesses, “coordination” is extremely unlikely to be prosecuted.

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.

Analysis:

Should the party proceed with the IEC, and receive contributions exceeding the limits that apply to the party, a complaint (leading to expensive litigation) would be a near-certainty, putting the party at risk for fines & penalties of TWO TO FIVE TIMES the amount by which any contribution exceeded the limits – and the CONTRIBUTORS could also be subject to fines and penalties, as well.

Even a best-case scenario (from the party’s perspective) would lead to expensive legal challenges to the IEC – but, since the attorneys hired to defend the state party would almost certainly hail from the chairman’s own law firm, perhaps he sees that not as a bug – but as a feature?

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

Contested School Board Election “Win” by Disqualified Candidate Argued Before Colorado Supreme Court

Challengers and supporters of a lower court order awarding a “win” to a disqualified candidate for School Board in Colorado’s Adams-12 school district argued their respective cases last week before the Colorado Supreme Court.

Candidate Amy Speers was discovered to be ineligible only days before election day (although many ballots had already been cast in the mail-ballot-only election) because she did not reside in the district. Although declared ineligible, Ms. Speers declined to officially withdraw from the race, leading to an Election-day ruling by the Office of Secretary of State that votes for the ineligible candidate should not be counted.  Supporters of the disqualified candidate filed suit a week after the election, claiming that votes for Speers should be counted (although she was ineligible and cannot take office) in order to trigger a vacancy appointment.  A lower court agreed, and awarded the “win” to the disqualified candidate, triggering the appeal and review by the Colorado Supreme Court.

Much of the argument presented before the court revolved around jurisdictional and procedural technicalities, including the appropriate type and statutory grounds for filing a challenge.  The authority of the Secretary of State to order an emergency rule to resolve the controversy was also at issue. Other points were made, however, that have bearing on future elections in more general terms.

Key Arguments:

  • Can Ineligible Candidates be “Duly Elected” to Public Office?

Attorneys for the state argued that “a person cannot be a “duly nominated” candidate or a “duly elected” officer if the individual does not meet the qualifications for office. ”
This argument is important not only because it would eliminate the election controversy “ab initio” – since
“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)
It is also important because it would “prevent use of sham candidates” – popular figures ineligible to actually run for office serving as stand-in vote-getters.

  • Can a vacancy committee appoint a successor to someone never eligible or elected to take office?

Plaintiffs in the lawsuit seeking to count votes cast for the ineligible candidate (Speers) did not intend that she actually take office, but that she count as “duly elected” for the purpose of allowing the incumbent school board (not the district’s voters) to select a replacement via vacancy appointment.  However, the applicable statute (C.R.S. 22-31-129) contemplates vacancy replacements for officersnot candidates.  Since unelected candidates are not officers, they cannot have a “successor” appointed to an office they never held.

  •  Can a candidate be removed from the ballot for reasons other than death or withdrawal?

Supporters of the disqualified candidate based their legal argument on statutory language addressing the correction of errors in ballots (C.R.S. 1-5-412) which lists only death or withdrawal as grounds for not counting votes:

if the ballots are already printed, the votes cast for the withdrawn or deceased candidate are invalid and shall not be counted.

This argument generated the most questions from the bench, and appeared to trouble several of the justices, particularly in light of the fact that the disqualified candidate was notified of ineligibility and requested to withdraw, but refused to do so.  One justice questioned what might happen were a dog to get certified on the ballot, then neither die nor withdraw its (canine?) candidacy; another noted that an unqualified candidate could thus be placed in position to determine the outcome of an election – remaining on the ballot simply by refusing to withdraw.  Attorneys argued back and forth about whether there was a “gap” in the law that necessitated the Secretary of State issuing an emergency rule, or whether “death or withdrawal” was exhaustive and exclusive.

 Quo Vadis?

The Colorado Supreme Court is likely to issue a decision within the month; based on arguments presented and questions asked at the hearing, it appears likely that neither side will come away entirely satisfied; a split decision is likely, both in terms of votes and resolution of issues.

In any event, even a definitive ruling by the court may not produce a final outcome in the school board election, since a separate election contest has been filed and will move forward once this court rules (the election contest is only partially contingent on the Colorado Supreme Court ruling in this case).

Welcome to the age of court-contested elections – at ALL levels.

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.

 

10th Circuit Court Overturns Disparate Contribution Limits in Colorado Campaign-Finance Law

The 10th Circuit Court of Appeals ruled Thursday (23 January 2014) that a Colorado campaign-finance statute imposing disparate contribution limits for major-party (Republican & Democrat) vs. minor-party, unaffiliated or write-in candidates violates the equal-protection clause of the U.S. Constitution.

The ruling stemmed from a lawsuit brought by former La Plata County Commissioner Joelle Riddle, former state legislator (and legislative candidate) Kathleen Curry and the Libertarian Party of Colorado in the aftermath of the 2010 elections.  Both Riddle and Curry were Democrats who left that party to run for election as unaffiliated  candidates, and, like Libertarian Party candidates, were constrained by lower contribution limits imposed by the statute – now found to be unconstitutional.

The U.S. District Court had originally ruled against the lawsuit, but was overturned on appeal.

Byron White Federal Courthouse -Denver, CO

Colorado campaign finance statutes (C.R.S. Title 1 Article 45 “Fair Campaign Practices” Act) impose disparate limits on candidates based on party affiliation:

All major party candidates may accept contributions for the primary and general election.
Minor party candidates who appear on a primary election ballot may accept contributions for the primary and general elections. Unaffiliated and minor party candidates who do not appear on a primary election ballot may only accept contributions for the general election.
(QUICK REFERENCE OF STATE CANDIDATE CONTRIBUTION LIMITS, Secretary of State Campaign Finance Manual, p.2)

The disparity was challenged on equal-protection (14th Amendment) grounds

arguing that the state statute violates the rights to equal protection, political expression, and association for individuals contributing to write-ins, unaffiliated candidates, and nominees for the minor parties. (Ruling at 4)

The court agreed, holding that

the state statute, as applied, violates the contributors’ rights to equal protection.

The state Attorney General’s office advanced two main arguments in defending the law:

  1. Major-party candidates must frequently spend money before the primary to “clear the field” of others wanting the nomination.
  2. The state has a compelling interest in preventing corruption or the appearance of corruption

The court deconstructed both arguments in holding the law unconstitutional.

1. Major-Party Primaries as Rationale for Disparate Limits

Under Colorado law, major-party candidates “can obtain a place on the general-election ballot only by running in (and winning) a primary even when there is only one candidate seeking the nomination.” (Ruling at 2)  Minor-party, unaffiliated or write-in candidates

However, not all major-party candidates are actually opposed in primaries – in fact, according to an analysis by the Plaintiff’s attorney of major-party candidates in Colorado between 2006 – 2010, out of 590 total, “only 63 of them had opponents in the primary.”  (“Lawsuit overturns political-funds law,” Durango Herald 23 January 2014)

Thus, even though major-party candidates are required by law to gain ballot access for the general election by first going through a (taxpayer-funded) primary election, that process does not necessarily impose additional costs for the candidate – even though major-party candidates can receive (and thus, spend) twice as much in contributions for the general election.

The “primary-cost” basis for unequal contribution limits was found wanting by the court:

First, can a state really justify unequal treatment because of a “problem” of its own creation? After all, to the extent unchallenged major party candidates may incur more costs because they have to participate in primaries (an essential factual premise for which Colorado has identified no evidence in our record), that’s only because state statutory law requires them to do so. (GORSUCH, Circuit Judge, concurring, at 6)

2. State Interest in Preventing Corruption or Appearance of Corruption 

Constitutional precedent since Buckley v. Valeo (1976) has upheld the state’s compelling interest in preventing corruption or the appearance of corruption by means of contribution limits on political campaigns; however, the court found that “this interest has little to do with Colorado’s statutory distinction among contributors,” further noting:

 The statutory classification might advance the State’s asserted interest if write-ins, unaffiliated candidates, or minor-party nominees were more corruptible (or appeared more corruptible) than their Republican or Democratic opponents. … In the absence of a link between the differing contribution limits and the battle against corruption, the means chosen are not closely drawn to the State’s asserted interest. (Ruling at 11)

In fact, the state could offer no compelling defense of the statute that “creates a basic favoritism between candidates vying for the same office” and “creates different contribution limits for individuals running against one another.” (Ruling at 12)

Perhaps the most damning condemnation of the law’s essential unfairness comes from the concurring opinion:

“When it really comes down to it, the only reason I can imagine for Colorado’s challenged regulatory scheme is a bald desire to help major party candidates at the expense of minor party candidates.”  (GORSUCH, Circuit Judge, concurring, at 7)

The 10th Circuit ruling, striking down that law, helped restore some fairness to Colorado electoral campaigns – and a modicum of integrity to Colorado campaign finance law.

Read more about the Colorado campaign-finance disparity 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.

Colorado Republican Party Chair Seeks Exemption to State Campaign Finance Law for “party-sponsored” Independent Expenditure Committee

Colorado Republican Party state chairman Ryan Call is seeking an exemption to state campaign finance rules in order to establish a “party-sponsored” (using the “Republican” party name) “Independent Expenditure Committee” that would not be subject to the contribution limits applying to the party itself.

The Colorado Republican Party, at Chairman Call’s direction, filed a Petition for Declaratory Order last November (essentially, asking for a “Get Out of Jail Free” card in advance) from Colorado Secretary of State Scott Gessler “requesting confirmation” that the party’s independent expenditure committee  ”may raise funds in any amounts from any source.”  (Petition for Declaratory Order, Introduction)

Following a period allowing public comment to be submitted in writing (see below; with the single exception of former state Republican party attorney John Zakhem, universally opposed to the petition) the Secretary of State’s office held a public hearing on 7 January 2014.

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 Petition

Colorado Republican Party State Chair Ryan Call, represented by his law firm partner (and designated party attorney) Richard Westfall, filed a petition seeking the Secretary of State’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) with the Republican party label (and, presumably in some form at least, party control) – in many respects, seeking to “have their cake and eat it, too.”

The COGOP advanced the following arguments in support of their petition:

  • 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
    • “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.”

Counterarguments to COGOP petition

The COGOP petition 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.

Critics from across the political spectrum (from “Colorado Ethics Watch,” a.k.a. CEW, pronouced “sue” – it’s what they do, on the “Left” and OGRE Exposed, on the grassroots “Right”) highlighted the fact that the case law precedent is clear that party organizations are subject to legislation imposing contribution limits:

“While the CRP petition is correct that under federal constitutional law a political party may not be prohibited from making independent expenditures that do not count towards candidate contribution limitations, case law does not support a right for political parties to fund such expenditures with unlimited and unregulated money.”  (CEW opposition statement to petition at 5)

Similarly,

Yes, political parties can constitutionally make unlimited independent expenditures. But this does not free them from contribution limits imposed on them by campaign finance laws. Unfortunately, under current Supreme Court precedent, contribution limits imposed on political parties are still constitutional. … The point is not that contribution limits are a good thing, they are not, but that Chairman Call is not being straightforward when claiming Supreme Court precedent supports what he is trying to do.”  (OGRE Exposed, Response to Ryan Call re: Independent Expenditure Committee, at 2)

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).

Reliance on the enforcement provisions of Rule 1.4 (Coordination) to sanction any such suspected coordination is likewise hollow – since multiple cases have shown that absent an airtight confirmed “smoking gun” to the extent of a notarized confession signed in the perpetrator’s blood in front of multiple witnesses, “coordination” will never be prosecuted.

Secretary of State Hearing, 7 January 2014

Interestingly, all of the above arguments will likely be rendered moot due to a jurisdictional issue raised at the Secretary of State’s Hearing on 7 January.  In order for the Secretary of State to issue a Declaratory Order, the Secretary must first determine if it will resolve the controversy at issue; any Order must terminate the controversy or resolve the issue.

Since Colorado has a system of private party enforcement of campaign finance law – any person may file a Complaint (in this case, against the “party-sponsored” IEC) and any individual donor could also be the subject of a complaint, as could other candidates or candidate committees on whose behalf the IEC makes expenditures – a Declaratory Order could not “resolve the controversy” since it would not be binding on potential Complainants.

Quo Vadis?

Clear The Bench Colorado‘s analysis is that the Secretary of State will not issue a Declaratory Order in favor of the COGOP Chair’s petition, most likely based on jurisdictional grounds, as noted above.  In addition to the jurisdictional reasons, there are multiple substantive issues with the petition’s arguments (which are largely unsupported by a critical reading of applicable case law and constitutional precedent).  From a purely political perspective, a ruling in favor of the petition by the office of Secretary of State Gessler would certainly be seized upon by his political opponents (both intra-party and inter-party) given his current candidacy for governor positions him as a potential beneficiary of IEC spending, despite the fact that he did not participate personally in the hearing (or, likely, the forthcoming ruling).

The Colorado Republican Party could, presumably, still proceed with setting up a “party-sponsored” IEC, but would do so at great risk, both to the party itself and any donor who exceeded the statutory contribution limits (a successful complaint would result in fines and penalties of 2-5 times the amount by which the contribution exceeded the limits). Even a successful defense against a complaint would cost the party tens of thousands in legal fees (on top of the $10,000 reportedly already spent by the Colorado Republicans just to argue the petition – although, since that money is paid directly to the chair’s own law firm, which also pays him a salary, that may be a risk that he personally is willing to take with party funds).

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 petition 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

Written comments – Petition for Declaratory Order

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