Colorado's Courts are still out of control...

Some judges continue to hold themselves above the law - but they are not beyond accountability.

DID YOU KNOW that you have the right to vote "NO" on these unjust justices (and judges at all levels)?

It's true – judges - 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 "Mullarkey Majority" on the Colorado Supreme Court 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


Judge Stymies Douglas County School Choice – Again

The same Denver District Court judge who halted the Douglas County Choice Scholarship program five years ago (the Order Granting Permanent Injunction was issued 12 August 2011) stopped the successor program this month.

Denver District Court Chief Judge Michael Martinez ruled earlier this month to apply the permanent injunction in effect against the previous program against a new school choice program (the Choice Grant Pilot Program) approved in March by the school board (on a 4-3 vote). The new program was designed specifically to address the rationale used by the Colorado Supreme Court last year to ban the previous school choice program due to inclusion of religious (or “sectarian”) schools among those a parent could select.

Despite the lack of any religious or sectarian schools included in the new Choice Grant Pilot Program, the same opponents of school choice filed a lawsuit to stop the program (led by “Taxpayers for Public Education” and the American Civil Liberties Union) – decrying “use of public funds for private education.”

The lawsuit seeking to extend enforcement of the previous permanent injunction to the new program was actually the second lawsuit filed – another lawsuit was previously filed against the “new & improved” program alleging it is discriminatory for excluding religious schools from the program.  That lawsuit, filed in federal court by the Virginia-based Institute for Justice, was dismissed in July by U.S. District Court Judge Marcia Krieger, noting  “the law in this area is extremely unsettled” and the U.S. Supreme Court is considering a challenge to the Colorado Supreme Court ruling holding the original program unconstitutional.

The lawsuit leading to the permanent injunction took a somewhat convoluted path back to the courtroom of Judge Martinez.  The originally (randomly) assigned judge, Catherine Lemon, was recused “at the outset;” other judges rotated out; and the plaintiffs filed a motion requesting Judge Martinez, who been elevated to the Denver District Chief Judge, to assign the case to himself – which he did, on 24 June 2016 (exactly a month after the lawsuit was filed, and ten days after defendants filed their responses).  To call this unusual …would be an understatement.

Judge Martinez applied and enforced the original injunction against the Choice Scholarship Program (CSP) to the new School Choice Grant Program (SCGP) based on the argument that the new program “is in actuality a revision of the CSP:”

Plaintiffs assert, and Defendants do not contest, that there are only a few differences between the two programs: in the SCGP, vouchers are called grants instead of scholarships, religious schools cannot be private school partners, the fictional Choice Scholarship School is eliminated, and the percentage of “per pupil revenue” (“PPR”) which will be given out as a voucher is increased. Other than these few changes, the essence of the CSP substantially remains intact” (Order at 3)

Consequently, Judge Martinez held that because there is “no fundamental difference” between the programs, that the original injunction against the CSP could be applied to the SCGP.  Martinez acknowledged that “the Colorado Supreme Court focused its opinion on the issue of religious schools receiving public funding under article IX, section 7 of the Colorado Constitution and did not reach the remaining constitutional issues” but nonetheless applied the ruling to the new program lacking any such element because “the ultimate opinion of the Colorado Supreme Court was without limitation.” (Order at 4)

Therefore – despite the fact that the Colorado Supreme Court ruling (on an unusual 3-3-1 plurality split) striking down the original Choice Scholarship program did so entirely on the basis of alleging that the program ran afoul of the constitutional provision (described as a “Blaine Amendment”) prohibiting use of public funds “to help support or sustain any school… controlled by any church or sectarian denomination whatsoever” (Article IX, Section 7), and the complete absence of such elements in the SCGP – Judge Martinez ordered the CSP permanent injunction into effect against the SCGP and enjoining the Douglas County School Board from implementing the School Choice Grant Program.

So, school choice in Colorado (and nationwide) suffers a setback – at the hands of the same judge who dealt another setback five years ago.  It remains to be seen whether the setback is temporary, or more enduring; the U.S. Supreme Court may yet take up (and if it does, likely reverse) the appeal of the Colorado Supreme Court ruling striking down the original Choice Scholarship Program.  In any event, one thing is certain:
more court battles over school choice will be fought in both state and federal courts.

Articles/Commentary:

 

Do you Know Your Judge appearing on the 2016 Ballot?

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

As Coloradans enjoy the last month this 2016 election year before being bombarded with political ads and mailers, MOST voters have little to no information on up to a third of the people asking for their vote: our state’s 3rd Branch of government, the judges.

Unfortunately, the vast majority of voters won’t be getting any better information before receiving their ballots – although “experts agree” that “more information to voters is what’s needed.”

“Only one third of Colorado voters feel they are sufficiently informed to decide which judges should be retained,” according to a 2014 survey commissioned by the state government. “Further, only one-quarter of Colorado voters feel that most of the electorate has enough information.” (Quoted from Colorado judges win elections despite bad reviews“)

Unfortunately, the official, government-sanctioned incumbent-protection “performance reviews” produced by the state’s Commissions on Judicial Performance (published and disseminated, at significant taxpayer expense, in the “Blue Book”) fail to provide much (if any) substance behind the published “recommendations” (almost uniformly in favor of “retaining” judicial incumbents in office).
The Blue Book “reviews” are thus little more than (taxpayer-funded) political ads for incumbents.

A recent Denver 9News (NBC) story, “Colorado judges win elections despite bad reviews” converted the “official” performance review survey results into letter grades for each of the 108 judges appearing on the 2016 ballot.  Amazingly, just like Lake Woebegone, all of the judges were graded “above average” (letter grades ranging from a high of “A-” to a low of “B-” with the vast majority receiving a “B+” grade).

When every judge appearing on the ballot is graded “above average” how can voters distinguish between “the good, the bad, and the ugly?

The Commissions on Judicial Performance (groups of political appointees charged with evaluating and reporting on the job performance of judicial incumbents) routinely fail to actually evaluate judicial job performance or provide adequate information sufficient for voters to base a decision.  Summarizing an incumbent’s resume and tabulating the results of surveys sent out to a select group of lawyers and other judges fails to answer the question posed to voters, “do they deserve another term – and why?

As a Denver Post guest commentary by a former Judicial Performance commissioner noted,

There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters.
If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do.  Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations.  Some commentators and observers have denigrated the narratives as a “rubber stamp” exercise for retaining judges.

In any event, why do we have political appointees (commissioners are appointed by the governor, attorney general, state legislators and the Chief Justice of the Colorado Supreme Court – the latter certainly seeming to have a conflict of interest) telling Coloradans how to vote?

Colorado voters deserve better information on these unelected officials, who (usually with little notice) exert enormous influence over their lives.  For a 4th straight election cycle, Clear The Bench Colorado is researching and evaluating the performance of the appellate court (statewide) judges appearing on the 2016 ballot (1 Supreme Court justice, 10 Court of Appeals judges), collected inputs on district and county judges from around the state, and will publish this information in an easy-to-read “scorecard” format as a resource for Colorado voters.

Our courts rule on important issues that seriously impact all Colorado citizens, including:

Colorado Supreme Court strikes down reapportionment reform initiatives, retains legislative mapmaking power for themselves

The Colorado Supreme Court, on a 4-3 vote, ruled that a pair of ballot initiatives (#132, #133) seeking to reform the process of drawing Colorado’s state legislative and congressional district boundaries violated the “single subject” rule and therefore could not be presented to voters.

The court case resulted from a lawsuit brought by former Democrat legislative aide and former Jefferson County Education Association (JCEA) President (and perennial Leftist activist) Donna R. Johnson, challenging the initiatives.  Johnson was represented by Democrat “go-to” attorney Mark Grueskin.

Both ballot initiatives sought, in slightly different ways, to reform the process by which state legislative district maps are drawn (“reapportionment”).  Initiative #132 additionally sought to shift authority for drawing congressional districts (“redistricting”) from the state legislature to an appointed, multipartisan (evenly split between Republican, Democrat, and unaffiliated/minor party members) commission.

The stated intent of both initiatives was to minimize politically-motivated gerrymandering, increase the number of “competitive” districts, and reduce the role of “political influence” or “political pressures” in determining legislative district boundaries.  Interestingly, the initiative proponents were two former legislators: Frank McNulty (R) and Karen Curry (D, later unaffiliated) with extensive experience dealing with the current process.

Both initiatives sought to amend the Colorado Constitution, Article V (Sections 44-48); key provisions of each included

“modify the criteria to be used in drawing districts; subject the commission to open meetings and open records laws; require a two-thirds vote of commissioners to approve any action of the commission; change the process for drafting and approving redistricting plans and the process for supreme court review of such plans” as well as modifying commission membership, including “prohibiting registered lobbyists, as well as members of or candidates for the U.S. Congress or the General Assembly, from serving as members of the commission.” [Ruling at 5]

Although the petitioner (Johnson, via Grueskin) also sought to have the Court reject the prohibition on lobbyists, legislators, or candidates (each of which, presumably, have a vested (conflict of?) interest in drawing legislative district maps), the Court declined to address the claim.  [Ruling at 15, footnote 2]

The Court’s majority DID find that the proposed change to the role of the Supreme Court Nominating Commission in each initiative violates the single subject rule, finding that the initiatives “fundamentally alter the role and objective of an unrelated constitutional commission” [Ruling at 14] and “would fundamentally change the role and mission of the independent Supreme Court Nominating Commission” [Ruling at 15].

Additionally, the Court’s majority found that Initiative #132‘s shift of authority for congressional redistricting from the state legislature, as assigned in Colo. Const. Art. V Section 44, to a newly created Redistricting Commission “affects separate redistricting processes derived from different sources of constitutional authority” and thus violates the single-subject rule. [Ruling at 17].

Ironically, and likely not coincidental to the current majority’s ruling, the state legislature has essentially abdicated its responsibility for congressional redistricting in each of the last five decades – throwing the ultimate decision to the courts (specifically, the Colorado Supreme Court)

Arguably, the basis for the majority’s ruling is as narrow as the majority itself (4-3), focusing on the “process” and “sources of authority” rather than the overarching objective or subject of “changing how electoral districts are redrawn in Colorado” – which was precisely the critique raised in the dissent, concluding “every provision in the proposed initiatives relates to that subject and is integral to that subject’s fulfillment.” [Dissent at 1]

The Dissent also highlighted the Court’s “limited role in ballot title cases” and precedent directing the Court to “liberally construe the single subject requirement” to facilitate voters having the final say, and mandating that the Court will “overturn the Title Board’s finding that an initiative contains a single subject only in a clear case.”  Accordingly, the dissenting view held that “these proposed initiatives are not “clear case[s]” of multiple subjects because every provision in the initiatives is necessarily and properly connected to the single subject of changing how electoral districts are redrawn in Colorado.”  [Dissent at 2]

Analysis:

The irony in the majority opinion’s ruling regarding the potential for the redistricting reform initiatives to sully the supposedly apolitical nature of the Supreme Court Nominating Commission, with its explicitly (bi)partisan makeup and supermajority rules, should not be overlooked.  The pretense that nominating judges with the ultimate authority to rule on legislative reapportionment, congressional redistricting (and other) legislation, and other policy issues is somehow apolitical but nominating commissioners to propose the legislative district maps on which the courts will ultimately rule is somehow fraught with undue political influence is, quite simply, laughable.

Another factor which cannot be ignored is the Court’s institutional self-interest (at least, as seen by jurists wishing to actively influence policy, rather than be restricted to mere question of law) in retaining control of the state’s legislative district reapportionment process.

In Colorado,  the process for determining both Congressional and state legislative district boundaries has, for decades, been dominated by the courts – specifically, the perennially and predictably partisan Colorado Supreme Court.

As noted a half a decade ago:

In reapportioning state legislative districts (which was taken out of the hands of the legislature several years ago and handed to an appointed commission), the Democrat advantage (thanks to their dominance of judicial appointments, especially to the state supreme court) is clear. The 11-member commission is appointed by the legislative branch (4 picks total, 2 from each side), the executive (governor picks 3) and the final (and decisive) 4 judicial branch appointments (chief justice).  In fact, injecting the chief justice into this inevitably political process – hypocritically highlighted in the recent ruling rejecting reform initiatives – is yet one more corrupting influence contributing to the increasing polarization and politicization of our judiciary.

Former Chief Justice Mullarkey was notorious for (ab)using the “single-subject rule” to strike down ballot initiatives with which she disagreed, personally; it appears the tradition is alive and well with Mullarkey’s handpicked successor, Justice Monica Marquez.

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 Court of Appeals rejects CEW’s CORE IEC challenge

The Colorado Court of Appeals rejected legal arguments filed by Colorado Ethics Watch (a state subsidiary of the Washington D.C. -based ‘Citizens for Responsibility and Ethics in Washington‘, or CREW) challenging the Colorado Republican Party’s establishment of a supposedly “independent” SuperPAC (Colorado Republican Party Independent Expenditure Committee, or ‘CORE IEC’) allowing the party to circumvent contribution limits otherwise applying to political parties.

The court ruled that because an Independent Expenditure Committee may be formed by any “person” (or persons) and that a political party is defined as a “person” under Colorado law (Colo. Const. art. XXVIII, § 2(11), definition of “person”) that (ipso facto) “a political party is a person who may establish an independent expenditure committee to collect or make independent expenditures” (Ruling at 10)

The court went on to say that the “political party’s independent expenditure committee may make independent expenditures when it does so without “the request, suggestion, or direction of, in consultation with, or under the control of that . . . political party.””

Such “coordination” between the party and the IEC remains illegal, according to the ruling (Ruling at 9-13); however, because the legal challenge was “facial” (based entirely on theoretical application of the law) rather than “as-applied” (based on evidence of actual activity or conduct), the court did not review or consider any evidence or history of the IEC’s actual activities (more on that later).

CEW issued the following statement:

Today, the Court of Appeals’ rejected Ethics Watch’s appeal of a ruling that allowed the Colorado Republican Party to circumvent party contribution limits by setting up a purportedly “independent” expenditure committee. Ethics Watch Director Luis Toro issued the following statement:

“We are disappointed in the Court of Appeals’ ruling. On one important point, however, we agree with the Court of Appeals: this problem can be fixed by the General Assembly. The legislature should promptly amend the independent expenditure statute to make clear its original intent, and close the loophole opened by today’s ruling.”

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 a candidate or political party.”

CORE IEC Historical Activity and the “Coordination” Question

The CORE IEC was formed at the specific direction of former COGOP Chairman Ryan Call (who publicly bragged that the IEC was his personal “brainchild”) and initially registered with the Secretary of State on 7 May 2014.  Ryan Call filed a lawsuit in the name of the Colorado Republican Party in Denver District Court the next day seeking a ruling (Petition for Declaratory Order) “blessing off” on the IEC’s existence.  Even before the District Court issued its decision, the CORE IEC collected (and spent, mostly to pay Executive Director Tyler Harber) tens of thousands of dollars – money that, had the party lost its challenge, would have subjected both the party and the donors to penalties of 2-5X the amount each contribution exceeded the limit ($3,400) applying to political parties.

The District Court ruled in September that, so long as the CORE IEC did not coordinate activity or spending with the Colorado Republican Party (inclusive officers, including Chairman Call) that it could be established and operate as an independent entity.  The District Court (as, later, the Court of Appeals) relied almost exclusively on the representations of the IEC’s Bylaws – holding that the bylaws provided sufficient separation (and “firewalls”) against coordination.

CEW filed an appeal of the District Court’s decision on 6 October 2014 – seeking to overturn the judgment on purely facial (theoretical) grounds rather than seek to prosecute the IEC for “as-applied” violations of campaign finance law (including the “coordination” issue).  The case dragged through the Spring and into the Summer of 2015 (during which time it became a hot potato in internal party politics), before ultimately leading to yesterday’s ruling.

The Court of Appeals ruling extensively cited the CORE IEC’s bylaws as grounds for asserting that the entity did not coordinate with the state party or its officers (in particular, the party chairman):

“[T]he IEC will not retain or utilize any common consultant or common vendor with the Colorado Republican Committee or with any Republican candidate for public office . . . .” In addition, “[t]he IEC will fully comply with all disclosure and reporting requirements mandated by C.R.S. § 1-45-107.5 and other applicable provisions of Colorado campaign finance law, and will assist donors to the IEC to fulfill their reporting requirements under the independent expenditure statute.”

Meanwhile, the CORE IEC was successfully prosecuted for violations of state campaign finance law – along with a dozen-odd big-money donors, when the IEC failed in its above-cited obligations to “assist donors to the IEC to fulfill their reporting requirements” – in a series of complaints filed in late 2014 (resulting in a ‘guilty plea’ entered by COGOP Chairman Ryan Call on behalf of the IEC) and early 2015 (again resulting in a stipulated judgment against the CORE IEC negotiated and authorized by the new COGOP Chairman Steve House).  Part of that settlement agreement negotiated by COGOP Chairman House included a commitment to terminate the CORE IEC within 150 days – or pay a suspended penalty of $23, 125 as mandated by statute.  The state party (and Chairman House) along with the IEC have failed to honor that obligation.

Additionally, a dozen deep-pocketed Colorado Republican donors have been assessed penalties for failing to “fulfill their reporting requirements under the independent expenditure statute” (thanks to the failure of Ryan Call and the IEC to “assist” the donors in fulfilling their legal obligations) – including such luminaries as former Colorado Governor Bill Owens, along with former IEC managing board member Keven Kauffman, to name just a few of the most prominent – although the party actually paid the penalties on behalf of the donors.

Furthermore, the IEC does in fact “retain or utilize any common consultant or common vendor with the Colorado Republican Committee” – namely, the same campaign finance management firm, the Utah-based McCauley & Associates PC (owned and operated by former Utah Republican Party Treasurer Mike McCauley) – who took over as the CORE IEC’s Registered Agent and Designated Filing Agent on 9 February 2015 from the departing Tyler Harber, who entered a guilty plea for federal felonies a few days later (12 February 2015) – ironically, for illegal campaign coordination.

Consequently, although the CORE IEC (and its sponsor, the Colorado Republican Party) can celebrate a court victory – they’re not out of the woods just yet.

 

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 CORE IEC is an attempt to create just such a “special exemption” and violates the spirit (and, if “coordinating” activities) letter of the law.

Read More about the CORE IEC:

Supreme Court kicks TABOR challenge back to 10th Circuit Court of Appeals

The Supreme Court of the United States (SCOTUS) kicked back a challenge to Colorado’s Taxpayer Bill of Rights (TABOR) constitutional amendment (Article X, Section 20) to the 10th Circuit Court of Appeals, vacating the 10th Circuit’s previous judgment and remanding the case for further consideration in light of the Supreme Court’s recent ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U. S. (2015).

The frivolous, groundless, and politically-motivated lawsuit attempting to overturn a Colorado Constitutional Amendment (the Taxpayer’s Bill of Rights, colloquially known as “TABOR”) was initially filed in Federal court in May 2011 – and, after several rounds of motions and counter-motions, allowed to proceed to trial in July 2012 (despite clear constitutional precedent disallowing challenges based on the “Guarantee Clause”) prior to the interlocutory appeal filed with the 10th Circuit.  After a 3-judge panel on the 10th Circuit ruled that the case could proceed, and a requested en banc hearing was rejected, albeit with several strong dissents) by the court, the case was appealed to the U.S. Supreme Court before being sent back earlier today.

The Arizona case (Arizona State Legislature v. Arizona Independent Redistricting Commission) adds to the already strong precedent unambiguously holding the “Guarantee Clause” and its “Republican form of government” language to be non-justiciable, and upholding constitutional constraints on government and adoption of laws and constitutional amendments by ballot initiative.  Specifically, the Arizona case upheld the state constitution against a similar challenge based on the federal “Elections Clause” and affirmed that

the electorate shares lawmaking authority on equal footing with the Arizona Legislature. The voters may adopt laws and constitutional amendments by ballot initiative, and they may approve or disapprove, by referendum, measures passed by the Legislature. Ariz. Const., Art. IV, pt. 1, §1. “Any law which may be enacted by the Legislature . . . may be enacted by the people under the Initiative.” Art. XXII, §14.

As Clear The Bench Colorado noted at the very outset of this litigation, the two relevant SCOTUS cases on the “Guarantee Clause” have held the “Republican form of government” language to be non-justiciable.

In Luther v. Borden, 48 U.S. 1 (1849), the Supreme Court rejected an attempt to put the “republican character” of state government subject to judicial review, holding that “it rests with Congress to decide what government is the established one in a State … as well as its republican character.”  The court, properly exercising judicial restraint, held the “Guarantee Clause” to be a political question, not a judicial one – and therefore not subject to review by the courts (i.e. non-justiciable).

A more recent case, Pacific States Telephone and Telegraph Company v. Oregon, 223 U.S. 118 (1912) dealt specifically with a challenge to the use of citizen initiatives in states (such as Colorado’s TABOR Amendment). In that case, the Court also held that challenges to a state’s “republican character” are non-justiciable political questions:

The enforcement of the provision in § 4 of Art. IV of the Constitution that the United States shall guarantee to every State a republican form of government is of a political character, and exclusively committed to Congress, and as such is beyond the jurisdiction of the courts.

More importantly, as noted in the amicus curiae brief filed by several Colorado legislators and the Colorado Union of Taxpayers (CUT), various legislative powers (including, as here, the power to impose taxes) have always been subject to limitations, qualifications, exemptions, or other constitutional constraints; indeed, such constraints are inherent in the nature of constitutional governance.  The Colorado Constitution specifically outlines the fact that the people retain ultimate veto authority over all acts of the General Assembly, and specifically authorizes the initiative and referendum process in the state constitution:

Id. art. V, § 1 (“The legislative power of the state shall be vested in the general assembly . . . but the people reserve to themselves the power . . . at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.”).

Numerous other states and organizations also filed amici curiae briefs, mostly in support of Colorado’s right to impose constitutional constraints on legislative powers, whether by initiative and referendum or other means.  As noted in today’s Colorado Statesman (Supreme Court sends TABOR challenge back to appeals court):

The attorneys general of Texas, Idaho, Arizona, Indiana, Ohio and Wyoming submitted an amicus brief to the Supreme Court in support of Colorado’s defense against the lawsuit.

“At its core, the plaintiffs’ case challenges a longstanding method of governance (constitutional amendment via the ballot box) employed nationwide,” the brief filed by the attorneys general reads. “This lawsuit is especially offensive to the Guarantee Clause because it is a suit against a State seeking to overturn a vote by the people of Colorado.”

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.

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 Supreme Court reverses Court of Appeals, strikes down Douglas County Choice Scholarship Program

The Colorado Supreme Court, in a stunning reversal of the Colorado Court of Appeals ruling from February 2013, declared the Douglas County School Choice Voucher Program a violation of the Colorado Constitution, in a ruling released earlier today (Monday, 29 June 2015).

The unusual plurality ruling (essentially, a 3 +1 vs. 3 judgment) in the case (13SC233, Taxpayers for Public Education v. Douglas County School District) split along the issues of whether the plaintiffs even had standing to bring the case on statutory grounds (a 6-1 majority held that they did not) and on whether the Choice Scholarship Program (CSP) violated the Colorado Constitution, Article IX Section 7 (prohibiting expenditure of public funds “to help support or sustain” certain schools).  Three of the Colorado Supreme Court justices (Chief Justice Rice, Justice Hobbs and Justice Hood) held that the CSP violated the Colorado Constitution; one (Justice Marquez) held that the CSP violated the School Finance Act on statutory grounds, and joined in the judgment.  Three justices (Justice Eid, joined by Justice Boatright and Justice Coats) agreed that the plaintiffs lacked standing on statutory grounds, and disagreed that the CSP was in violation of the Constitution.

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 (ACLU, Americans United for the Separation of Church and State, various front groups and individuals affiliated with local, state, and national teacher’s union and other special-interest groups et al) have argued that the school choice voucher program violated the state School Finance Act and Colorado Constitution provisions prohibiting ”aid to or support of religion and religious organizations” with taxpayer funds. The Court of Appeals 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), holding that funds disbursed in such programs ”benefit students and their parents, and any benefit to the participating schools is incidental…”  

Majority Upholds Court of Appeals on “Standing to Sue” on Statutory Grounds

Interestingly, a strong majority on the court (6-1) upheld the Colorado Court of Appeals ruling that the plaintiffs lacked standing to bring suit on statutory grounds (relying on the School Finance Act) while it was “uncontested that Petitioners have taxpayer standing to raise their state constitutional challenges.” [Marquez Concurrence at 1] Only Justice Marquez, in a concurring opinion, held that “standing to sue” extended to statutory, as well as constitutional, grounds, stating:

I perceive no principled basis in our case law to draw distinctions between a taxpayer’s standing to bring a statutory claim as opposed to a constitutional claim.  Whether the expenditure allegedly runs afoul of a constitutional or a statutory provision, in the context of taxpayer standing the core legal interest at stake is identical: It is the taxpayer’s economic interest in ensuring that his tax dollars are expended in a lawful manner.   [Marquez Concurrence at 1]

Justice Marquez also held that the CSP violated the School Finance Act on statutory grounds alone, and thus would not rule on the constitutional issues, ensuring that only a plurality (rather than an actual majority) held the CSP in violation of the Colorado Constitution, concurring in the judgment only.

Plurality Holds CSP in Violation of Colorado Constitution

A mere plurality of three justices – Chief Justice Nancy Rice, retiring Justice Gregory Hobbs, and recently-appointed Justice William Hood III – held the Choice Scholarship Program violates the Colorado Constitution (specifically, Article IX Section 7 Aid to Private Schools, Churches, Sectarian Purpose, Forbidden).

As a side note: Clear The Bench Colorado raised the issue of a potential conflict of interest with Hood ruling in cases brought by his former law partner, Marc Grueskin, at the time of Hood’s appointment to the Colorado Supreme Court by Governor Hickenlooper.  Grueskin was the attorney for amicus curiae National Education Association in this case, which should have at least raised the potential for Hood’s recusal, in whole or part, from the proceedings.  Not that ethical considerations hold much weight in Colorado courts.

The three-judge plurality held that the Choice Scholarship Program

  1. “conflicts with the plain language of Article IX section 7
  2. is “distinguishable” from “a grant program that awarded money to students attending religious universities” and
  3. is not subject to case law precedent upholding similar programs on First Amendment grounds

Conflict with Article IX Section 7 “Plain Language”

The Colorado Constitution features broad, unequivocal language forbidding the State from using public money to fund religious schools; specifically,

Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose. [Art. IX Sec. 7]

The plurality, although admitting that “[t]o be sure, the CSP does not explicitly funnel money directly to religious schools, instead providing financial aid to students” [Ruling at 20], broadly held that “anything in aid of any religious institution” that in any way contributes to “help[ing] support or sustain any school… controlled by any church or sectarian denomination whatsoever“ [Ruling at 20; emphasis added in the ruling] constitutes impermissible use of public funds for “sectarian purpose.”

The plurality similarly brushed aside objections that non-religious schools are among the options available in the CSP, and that selection of any particular school is entirely at the discretion of the students and parents:

It is true that the CSP does not only partner with religious schools; several Private School Partners are non-religious. The fact remains, however, that the CSP awards public money to students who may then use that money to pay for a religious education. In so doing, the CSP aids religious institutions.”  [Ruling at 21]

Americans United Grant Program Distinguishable?

A previous ruling by the Colorado Supreme Court (Americans United, etc v. State of Colorado) upheld the constitutionality of a scholarship grant program “that awarded public money to college students who attended religious universities” – which presumably should have constituted guiding precedent in this case, as well.  However, the plurality held that the Americans United case was sufficiently distinguishable from the CSP that it was “not dispositive of – and indeed has minimal bearing on – the present dispute.” [Ruling at 23]

The plurality notes the finding in Americans United that the grant program was “designed to assist the student, not the institution” (Id. at 1083) and continued: “[f]acially, that is true of the CSP as well. Yet in Americans Unitedwe tethered this observation to the fact that grant recipients could not attend ‘pervasively sectarian’ institutions.” [Ruling at 24]

Note, however, that the 10th Circuit held that the “pervasively sectarian” distinction in Colorado’s scholarship programs violated the 1st Amendment.  Colorado Christian University v. Weaver, 534 F.3d 1245, 1250, 1263 (10th. Cir. 2008)

The plurality proceeded to note a number of other distinctions between CSIP (the college grant program at issue in Americans United) and the CSP, from the obvious (CSIP is for college, while CSP is for primary education) to the irrelevant (CSIP includes grants for tuition at public universities, a condition that does not apply to public primary schools) to the programmatic (CSIP bars reduction of college funds spent on students to offset grant money, while CSP has no explicit prohibition on offsets) to, finally, conditions on a university governing board’s membership (applying under CSIP, but not a CSP requirement).

Based on these distinctions, the plurality “reject Respondents’ argument that Americans United requires us to uphold the CSP.”

First Amendment Issues Inapplicable to Choice Scholarship Program?

Similarly, the plurality held that previous federal First Amendment case law applying to school choice programs – specifically, the 2002 U.S. Supreme Court Zelman case and the 2008 10th Circuit Colorado Christian University v. Weaver case - are not “availing” in this case.

The plurality held that since “section 7 is far more restrictive than the Establishment Clause regarding governmental aid to religion” then “Zelman’s reasoning, rooted in the Establishment Clause, is irrelevant to the issue of whether the CSP violates section 7.” [Ruling at 28]

In a rather interesting twist of logic, the plurality rejected the applicability of Colorado Christian v. Weaver on the basis of the court’s holding that “exclusion of ‘pervasively sectarian’ institutions constituted religious discrimination” – arguing that the holding “is simply inconsequential to the legality of the CSP, which does not distinguish among religious schools.” [Ruling at 29]

“Accordingly,” the plurality stated, “we conclude that both Zelman and Colorado Christian are inapposite to the present case. Therefore, our decision that the CSP violates section 7 does not encroach upon the First Amendment.” [Ruling at 31]

Three Justices Dissent

As occurs far too often in Colorado jurisprudence, to find the law one must read the dissent. Justice Allison Eid authored a strong dissent, joined by Justices Boatright and Coats.

Justice Eid’s dissent began by condemning the “breathtakingly broad interpretation” that Article IX Section 7 prohibitions extend to any expenditure even “incidentally or indirectly” benefiting religious schools, noting that such an expansive ruling would invalidate not only the CSP but “numerous other state programs” too:

“The plurality’s interpretation barring indirect funding is so broad that it would invalidate the use of public funds to build roads, bridges and sidewalks adjacent to such schools, as the schools, in the words of the plurality, “rely on” state-paid infrastructure to operate their institutions.”  [Dissent at 1]

Justice Eid asserted that Article IX Section 7 bars only public expenditures made “to help support or sustain” church or sectarian schools, and “does not suggest, as the plurality would have it, that any program that provides public money for other purposes – for example, to assist students – is constitutionally suspect simply because the funds indirectly or incidentally benefit church or sectarian schools.” [Dissent at 1]

She continues that “[s]uch a reading is contrary to Americans United for Separation of Church and State Fund Inc. v. State, 648 P.2d 1072, 1083 (Colo. 1982), in which we upheld a state grant program similar to the CSP on the ground that “the aid is designed to assist the student, not the institution.” [Dissent at 2]

Most importantly, Justice Eid notes that “Americans United mirrors long-standing Establishment Clause doctrine, under which a program “of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals” is “not readily subject to challenge” because the “circuit between government and religion [has been] broken.”  Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002).

Justice Eid notes that the plurality selectively excerpts words from Article IX Section 7 to expansively prohibit “any government expenditure that indirectly benefits religious schools” despite the fact that the actual language “bars the expenditure of public funds “to help support or sustain” certain schools” – and thus “does not suggest, as the plurality believes, that government funds that are directed to a student but happen to have an incidental beneficial effect on certain schools are also forbidden.” [Dissent at 3]

Indeed, as Justice Eid suggests, such an expansive interpretation would readily lead to the absurd result that any expenditure of public funds whatsoever – including, as noted above, any public infrastructure such as roads or bridges which could indirectly benefit such institutions – would be prohibited.

Justice Eid noted that the U.S. Supreme Court ruled in Zelman that “such incidental advancement is ‘reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits” and was likewise consistent with the Colorado Supreme Court’s own previous ruling in Americans United :

“Such a remote and incidental benefit,” … “does not constitute, in our view, aid to the institution itself within the meaning of Art. Ix Section 7.”  Americans United  at 1083-84  [emphasis added in dissent, at 4]

Justice Eid continued to note that “much of what the plurality relies on to distinguish Americans United from this case has been rendered unconstitutional by subsequent developments in the law. See Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1269 (10th Cir. 2008) (striking down the portion of the state grant program at issue in the Americans United case that precluded aid to “pervasively sectarian” institutions as unconstitutionally discriminatory among religions and as unconstitutionally invasive of religious belief and practice).  [Dissent, footnote 2 at 7]

Our View:

The Colorado Court of Appeals, as we previously noted, got it right two years ago:

Plaintiffs failed to carry their burden of proving the unconstitutionality of the CSP beyond a reasonable doubt, or by any other potentially applicable standard. None of them have standing to assert a claim under the Act. Accordingly, the district court’s judgment cannot stand.

The Colorado Supreme Court plurality stretched the prohibitions on government spending to “support or sustain” sectarian schools past the point of absurdity; applying the same logic found in their ruling, every conceivable expenditure of public funds could be challenged on the basis of providing “incidental or indirect” support to sectarian schools (which could certainly make for interesting fodder for anyone opposing any given state government program).

Sadly, this latest Colorado Supreme Court ruling reaffirms the court’s status as a judicial hellhole lacking respect for the rule of law and the constitutional rights of Colorado citizens.

Articles/Commentary:

Governor Hickenlooper selects Judge Richard Gabriel for next Colorado Supreme Court Justice

Colorado Governor John Hickenlooper announced his pick for the next Colorado Supreme Court Justice Tuesday afternoon, 23 June 2015: Colorado Court of Appeals Judge Richard L. Gabriel, who will succeed retiring Justice Gregory Hobbs effective 1 September 2015.

Governor Hickenlooper had until this Thursday to announce his selection from among the three finalists (Judge Gabriel, Judge Prince, and University of Colorado Law Professor Melissa Hart) nominated by the state judicial nominating commission, according to the timeline set forth under the Colorado Constitution.

Judge Gabriel has served on the Colorado Court of Appeals since his 30 April 2008 appointment by former Governor Bill Ritter; he was most recently retained in office in 2010 (Clear The Bench Colorado had no recommendation on his retention at that time, as the record on his performance was limited due to few rulings in his short time on the court).

Judge Gabriel appears to be a consensus compromise pick by Governor Hickenlooper; according to the Denver Post and the Denver Business Journal, the Colorado Association of Commerce and Industry (CACI) and other business interests had lobbied for Prince’s appointment, along with the Colorado Springs Gazette’s editorial board; while “progressives” lobbied for Leftist law professor Melissa Hart.

According to Clear The Bench Colorado sources in the legal community, Judge Gabriel is generally well-regarded, and considered a capable appellate court judge.  He is considered approachable, reasonable, thoughtful and thorough in his legal opinions.  Some sources have opined that Judge Gabriel, although well versed in various aspects of statutory application, is not among the more strict constructionists on constitutional issues (which is, perhaps unfortunately, not atypical of a majority of judges and lawyers).

Judge Gabriel was considered a consensus-builder during his time on the judicial liaison committee, and has worked well with various commissions interfacing with the judicial branch.

On a personal note (not to toot his own horn), Judge Gabriel plays trumpet (for fun) and has kept in practice.

Although Judge Gabriel has authored only a few published opinions, some of those have been particularly noteworthy.  He wrote the opinion in the Colorado Ethics Watch v. Senate Majority Fund case, perhaps the most important ruling on campaign finance law (particularly, the issue of “express advocacy” in regulation of political speech), rejecting CEW’s attempt to expand the definition of “express advocacy” to include the “functional equivalent” thereof.  Judge Gabriel also wrote a special concurrence in the Gray v. University of Colorado Hospital Authority case, which affirmed public entity immunity from liability for tort claims based on allegations that the entity or the entity’s employees acted in a willful and wanton manner.

 Our View:  Judge Gabriel is likely to be a fairly middle-of-the-road jurist, who will likely contribute to a significantly more impartial and balanced Colorado Supreme Court (the court has advanced leaps and bounds from the blatantly partisan “Mullarkey Majority” days from as recently as five years ago).  Clear The Bench Colorado looks forward to providing more detailed analysis of Judge Gabriel’s performance on the Colorado Supreme Court over his “probationary term” prior to his scheduled retention vote in 2018.

Citizen participation in the judicial review and retention process (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to judicial office, instead of more politicians in black robes.

This is particularly important at the appellate court level – many of whom all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.

Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our judges are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.

Bottom Line: an informed citizenry and active citizen participation is vital in restoring accountability and transparency to the 3rd branch of state government, the judicial branch.

For a complete explanation of the judicial nominating process in Colorado, read:

Colorado’s “Merit Selection” Judicial Nominating Process

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

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

Ultimately, though – it’s worth the effort.

Colorado Supreme Court Judicial Nominating Commission names three finalists to succeed retiring Justice Gregory Hobbs

The Colorado Supreme Court Judicial Nominating Commission has named the three finalists to succeed retiring state supreme court justice Gregory Hobbs (his retirement is effective 31 August 2015).

The Nominating Commission’s press release summarizes the process for selecting Bender’s successor:

The Supreme Court Nominating Commission met in Denver on June 8 and 9, 2015, to interview and select three candidates for a vacancy on the Colorado Supreme Court created by the retirement of the Hon. Gregory Hobbs, Associate Justice of the Colorado Supreme Court. The vacancy is effective 31 August 2015. The nominees are Richard L. Gabriel, Melissa Hart and David Prince.

Under the Colorado Constitution, the governor has 15 days from June 10, 2015, within which to appoint one of the nominees as a justice on the Colorado Supreme Court.

Comments regarding any of the nominees may be sent via e-mail to the governor at gov_judicialappointments@state.co.us.

The three finalists (from whom Governor John Hickenlooper will select one) are:

Judge Gabriel has served on the Colorado Court of Appeals since 30 April 2008; he was last retained in 2010 (Clear The Bench Colorado had no recommendation on his retention at that time, as the record on his performance was limited due to few rulings in his short time on the court)

CU Law Professor Melissa Hart has never served as a judge, although she has clerked for U.S. Supreme Court Justice John Paul Stevens, which (together with her tenure at the CU-Boulder Law School) gives some insight into her judicial philosophy.  Melissa Hart also ran for CU Regent in 2010 (at the time, the most expensive race for CU Regent ever) while a university employee, raising concerns about an ethical conflict of interest (campaigning while receiving taxpayer dollars, for a position in which she would have voted on her own department’s budget and personal salary)

Judge Prince was also a finalist to succeed retiring former chief justice Mary Mullarkey in 2010; he was profiled by Denver Post courts reporter Felisa Cardona (“Colorado Supreme Court finalist Prince applies diligence to his cases – and his barbecue“) in an article appearing 4 September 2010.  He was again a finalist to succeed retiring former chief justice Michael Bender in 2012.  Perhaps the third time will be the charm for Judge Prince?

The Law Week Online article, “Finalists Announced for CO Supreme Court Vacancy“ (10 June 2015) summarizes additional background information on the three finalists.

Unfortunately, Colorado citizens know more about the process of picking the Pope than about how our state selects nominees to judicial office.

This is unfortunate – because, despite some flaws (most importantly, a lack of transparency and public accountability – secrecy encouraged by the legal establishment, who are more interested in protecting their members and covering for their ‘buddies on the bench’ than allowing them to be called to account), the process does provide some level of front-end vetting of judicial applicants, filtering out the obviously unqualified and excessively partisan (weeding out the ‘worst of the worst’).

However, the lack of transparency and public understanding of the process leads to a general lack of confidence in our judiciary and undermines the right and ability of Colorado Citizens to hold our judicial branch officials accountable – leading to ignorant statements such as “why bother to vote out the bad ones?  They’ll just replace ‘em with more of the same.”  (That attitude reminds me of nothing so much as someone clinging to an abusive domestic relationship – putting up with the beatings because it’s what they know.  Step One: remove the source of the abuse.  Step Two: make better choices for the future…)

So, how does the Supreme Court Nominating Commission try to make ‘better choices’ for replacing outgoing justices?

For a complete explanation of the judicial nominating process in Colorado, read:
Colorado’s “Merit Selection” Judicial Nominating Process

By the Numbers: How the Judicial Selection Process works

  1. On announcement of the vacancy and solicitation for application, prospective nominees submit an extensive application packet (including a long questionnaire, writing sample, background information, resume of relevant professional experience, and references).
  2. Commission members review the applications, and select from the total list (this year, 31 people applied for the impending vacancy) for interviews (a particular candidate will be interviewed if any commissioner expresses a strong desire to have them appear).  Commissioners consider the current makeup of the court, and may advocate for a specific constituency – a particular area of legal expertise – such as water or business law, or possibly a regional or ethnic representation in pursuit of court ‘diversity’).  Interviews are based on a common set of ‘core’ questions (for consistency of comparison & evaluation); each commissioner develops and uses their own evaluation criteria.
  3. Following interviews, the commission deliberates/discusses the candidate, voicing comments or concerns to the group at large.
  4. Following all of the interviews, the commission casts a ballot – three unranked votes per opening (for the Colorado Supreme Court or Court of Appeals – lower courts may only require 2-3 nominees).  The top vote-getters become the finalists – with the caveat that any finalist MUST receive a majority of total Commission votes (i.e. 8 of 15), irrespective of how many are actually present.  Multiple ballots may be (generally are) necessary.  (Note that the current makeup of the Nominating Commission – 7 Democrats, 5 Republicans, 3 Unaffiliated –  ensures that any finalists MUST receive at least one vote from multiple party affiliations).
  5. The names of the three finalists are submitted for consideration by the governor, who has 15 days to make a selection from the list.

ALL of our sources (from differing party backgrounds) have stressed that the Nomination Commission deliberations are non-partisan (which is not to say, as our sources admit, that the deliberations and considerations do not reflect ideology or judicial philosophy – which is, in our view, entirely appropriate).

Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to judicial office, instead of more politicians in black robes.

This is particularly important in selecting the next statewide appellate court judges – many of whom all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.

Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our judges are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.

Our view: an informed citizenry and active citizen participation is vital in restoring accountability and transparency to the 3rd branch of state government, the judicial branch.

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.

Property Taxes Increase due to 2009 “Mill Levy Tax Freeze” ruling by Colorado Supreme Court

As property values in Colorado rebound from a years-long slump, many homeowners are experiencing “sticker shock” at the commensurate increase in their property taxes – leading thousands to protest recent property value appraisals across the state.

Prior to the notorious 2009 “Mill Levy Tax Freeze” ruling by the Colorado Supreme Court, an increase in property value would have been greeted positively – but, thanks to the historically high property tax rate locked in by the ruling (affirming an unconstitutional piece of legislation enacted on a partisan basis in 2007), higher property values just mean significantly higher property taxes.

In effect, nearly every homeowner (indeed, nearly all property owners) in the state of Colorado faces a significant property tax increase in the coming year due to nearly decade-old partisan piece of legislation and a Colorado Supreme Court ruling from 2009 – without the constitutionally-required vote of the people (under Colorado’s Taxpayer Bill of Rights, or ‘TABOR’ amendment).

 Flashback: Audacious “Mill Levy Tax Freeze” Legislation ‘Blindsides’ Voters

The Colorado Constitution (Article X, Section 20) specifically requires “voter approval in advance for…

any new tax, tax rate increase, mill levy above that for the prior year, valuation for assessment ratio increase for a property class, or extension of an expiring tax, or a tax policy change directly causing a net tax revenue gain to any district” (Colo. Const. Art. X Section 20(4) et seq)

Historically, property tax (“Mill Levy”) rates under TABOR fluctuated up or down annually to keep property tax revenues steady (preventing increases, but also ensuring some revenue stability for districts collecting property taxes).  So, as property values increased, rates decreased (and vice-versa) keeping the property tax burden stable, and predictable.

However, in 2007, Democrat Governor Bill Ritter proposed (and a Democrat-controlled state legislature approved) a “freeze” in property tax rates during a period in which property values were just beginning to recover from an historic slump (and thus, locking in historically high tax rates going forward).

In the first full year the legislation was in effect, the state collected an additional ‘windfall’ revenue gain of $117 Million – with more to come.

The law was (initially successfully) challenged in court – with Denver District Court Judge Cristina Habas ruling on 30 May 2008 that the legislation violated the Colorado Constitution (specifically, the requirement that any tax increase or “tax policy change directly causing a net tax revenue gain” first gain voter approval).

Undeterred – possibly knowing that “the fix was in” – Governor Ritter and Attorney General John Suthers appealed the District Court ruling to the Colorado Supreme Court.  In an astonishingly rapid turnaround, the Colorado Supreme Court (in a tortuously-argued 4-3 ruling written by Chief Justice Mary Mullarkey issued on 16 March 2009) reversed the lower court ruling and upheld the constitutionality of the “Mill Levy Tax Freeze” legislation, locking in perpetual property tax increases for Colorado.

Mullarkey, living up to her name, based her ruling on time-travel, mind-reading, or both: declaring that some hundred or so “de-Brucing” votes in individual districts years earlier on completely separate local tax revenue issues in the 1990′s constituted the required “voter approval in advance” for the 2007 state legislation – despite the fact that voters in those districts were explicitly told that their votes on those local issues would not trigger future tax increases:

When a large majority of school districts in the 1990s asked voters if they could keep all of the tax revenue they were then collecting rather than return surpluses under the Taxpayer’s Bill of Rights, they were careful to assure homeowners that the change would not trigger a long-term escalation in property taxes.

Absolutely not, district officials promised. As the assessed value of property continued to rise, they added, mill levies would tick downward as they had before.

Those officials had every reason to believe they were telling the truth, too, since literally no expert contradicted them. To the contrary. The state repeatedly reinforced the same position.  (Denver Post Editorial, School bill is a double cross, 2 May 2009)

The Mullarkey court also ignored the defeat of a nearly-identical measure to freeze Colorado’s mill levy tax rates (Amendment 32) in 2003, clearly expressing the voter’s disapproval of the rate-freeze scheme later enacted by legislative fiat and the Colorado Supreme Court’s imprimatur.

Bottom Line:

As property taxes inexorably increase with recovering property valuations – irrespective of whether the owners intend to sell their homes – there is literally no one to blame or hold accountable remaining in office facing a vote (three out of four of the ruling Mullarkey Majority, led by Chief Justice Mary Mullarkey herself, have already left office; the last of the Mullarkey Majority in this case, current Chief Justice Nancy Rice, will retire before again facing voters in a retention election).  The policy, however, lives on, as the tax rate “freeze” actually locks in additional property tax increases (“an escalator tied to inflating housing values”) in future years that will outpace growth in personal earnings (hitting those on fixed incomes especially hard).

Nevertheless, property taxes (and property tax revenues) will continue to ratchet upwards, with no vote – thanks primarily to the Colorado Supreme Court.

Reference:

Analysis: Clear The Bench Colorado Impact on Judicial Retention

Since the founding of Clear The Bench Colorado – the state’s only active judicial accountability organization, and only consistently reliable source of information on the state judicial branch – six years ago, spearheading a “do not retain” campaign in 2010 against the then-reigning “Mullarkey Majority” on the state supreme court, both supporters and opponents of judicial accountability have speculated on CTBC’s impact on judicial retention rates in Colorado elections.

Recently, a meeting of the “official” State Commission of Judicial Performance discussed the “numbers and percentages of retained judges over the years.”  Deputy Director Daniel Souza, explaining a few of the dips in retention rates in recent years, attributed these to the “Matt Arnold Syndrome.”  Interestingly, although the Commission has chartered several studies and surveys on judicial retention rates in Colorado elections, they have refused to release those to the public.

After failing to receive requested data from the Commission (notably, the Colorado Judicial Branch declared itself “exempt” from the Colorado Open Records Act, CORA, pursuant to the 2012 Gleason v. Judicial Watch ruling by Colorado Court of Appeals Judge Alan Loeb), Clear The Bench Colorado commissioned a study on judicial retention rates in Colorado over the past decade – and the results are quite interesting.

The numbers do speak for themselves.  From 2002-2008, the average retention vote for a statewide judge (Appeals or Supreme Court) was 71.72%.  Since the founding of Clear The Bench Colorado in 2009, the average statewide retention vote has been 67.60%, with the most significant change (63.44%) happening in the year of Clear The Bench Colorado’s greatest activity and media exposure, 2010. (see Tables 1 & 3)

 

 

 

 

 

 

 

 

 

 

 

Clear The Bench Colorado was most active in 2010, with some significant earned media attention and a statewide campaign focused in particular against four (then three, when Chief Justice Mullarkey chose to “retire” rather than face the voters) Supreme Court Justices who regularly violated the Colorado Constitution. Clear The Bench Colorado traveled the state educating voters on judicial retention elections. Additionally, 2010 saw a well-funded counter campaign against Clear The Bench Colorado, which has been dormant after facing legal challenges for violating the state’s campaign finance laws. 2010 produced an average 12.85% reduction in Supreme Court retention votes from 2008 and previous year averages.

Clear The Bench Colorado positioned itself in 2011 as the only consistent source on Colorado’s Redistricting and Reapportionment process, actively engaging in both testifying on proposals and reporting on the process from beginning to end. Clear The Bench Colorado began reporting on Colorado judicial cases and related stories in 2009, and built on that wide reach and recognition in 2011.  Clear The Bench Colorado continues to be the only news source on many cases and judicial issues in Colorado.

In 2012, Clear The Bench Colorado was less active in travelling to speak with the electorate across the state.  2012 saw a shift in the focus of the organization’s approach, from specific recommendations (“yes” or “no” campaign, as in 2010) to a rating without any specific recommendation (ranking votes in cases for/against the Constitution, as in 2012 and 2014).  2012 saw a 2.09% reduction in average Supreme Court retention votes from 2008.

2014 again saw an increase in earned media attention and education on the retention election issue across the state.  2014 also saw two (unrelated to Clear The Bench Colorado) ballot initiatives focused on judicial retention and accountability, both of which failed to make the ballot (but likely helped create an electoral atmosphere that paid more attention to judicial elections than in 2012).  2014 had a 5.28% reduction in average Supreme Court retention votes over 2008.

Conclusion:

Clear The Bench Colorado‘s recommendations (2010) and ratings (2012/2014) have had some noticeable impact on election results, reducing the statewide retention vote average by 4.12% overall, utilizing limited resources and manpower.

Additionally, years in which Clear The Bench Colorado was more active (2010, 2014) have a more noticeable impact than years with less publicity (2012), particularly with the Supremes.

Clear The Bench Colorado’s anticipated future participation in education and ratings for Colorado’s judiciary will likely continue the trend of a more informed Colorado electorate, as reflected in the election results.

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