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


Citizen Input on Colorado’s Judicial Performance Evaluation system sought in statewide hearings

The State Commission on Judicial Performance has announced a series of public hearings to provide citizen input on Colorado’s Judicial Performance Evaluation system as a prelude to lobbying the legislature to renew the program’s governing statute (C.R.S. 13-5.5-101 et. seq.), which sunsets in 2019.  See more here.       The Commission seeks input on these six questions:

  1.  Do you rely on the “official” Judicial Performance Evaluations when you vote for judges?
    Why or why not?
  2. Do the “official” Judicial Performance Evaluations collect the right information about judges?
  3. Do the “official” Judicial Performance Evaluations evaluate and report the evaluations properly?
  4. Does the quality and usefulness of the evaluation information meet your expectations?
  5. What other attributes of judges should we be gathering feedback on?
  6. What suggestions do you have to improve the system?

Each meeting will last approximately two hours, depending on attendance and be based on the following agenda: I) Introductions and Meeting Purpose II) General Rules III) Current Program Overview IV) Public input   If you cannot attend one of these meetings in person you can submit comments regarding the program via the COJPE  “Citizens Feedback” link, or fill out an online survey: Citizens JPE Program Feedback Survey 2016   Hearings are scheduled for the following dates and locations:

Clear The Bench Colorado encourages citizen participation in these meetings, which represent at least an attempt to solicit substantive feedback, constructive criticism and suggestions for improvement of the judicial evaluation process.   An increase in transparency and accountability, including more substantive information on actual judicial performance versus the current “survey says” popularity contest model, could improve our state’s judicial performance review process and provide real information of use to voters in distinguishing between judges seeking retention in office.
A critically important and much-needed improvement, in CTBC’s view, would be to remove the retain/not retain “recommendations” from the “official” review process.  In no other area do political appointees
(all “performance review” 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) tell Coloradans how to vote.  The “evaluation” commissions should focus on evaluating (and rating) performance, rather than electioneering to promote votes.

CTBC’s 2016 Evaluations of Colorado Judicial Performance: Do you Know Your Judge?

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 cast their ballots with only two weeks to go before “Election Day” (an increasingly meaningless term under Colorado’s all-mail-ballot election system), despite 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: the judges - our state’s third Branch of government. Unfortunately, the vast majority of voters won’t be getting any better information before receiving or casting 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 researched, reviewed and evaluated the actual job 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 published a substantive analysis of judicial performance in an easy-to-read scorecard format.

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

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.

 

Survey of School Choice Court Battles Around the Nation

Although Colorado has been at the epicenter of court battles over school choice in recent years, the state is hardly unique as a legal battleground.  Around the nation, opponents of education reform use lawsuits as the favored weapon to stymie school choice in the face of public opinion increasingly trending towards increased opportunity and options – with surveys showing that most Americans favor school choice policies.

Perhaps because school choice opponents are losing the battle in the courts of public opinion, the fights have increasingly shifted to courts of law, where outcomes are time-consuming, expensive, and uncertain; and all too dependent on the whims of presiding judges.

Litigants on both sides of the school choice battle attempt to increase the odds of success by venue-shopping, bringing lawsuits in jurisdictions deemed most favorable to their position; but ultimately, should such policy decisions be in the hands of judges at all?  

Colorado:

Among the current school choice cases nationwide, the ongoing battle over the Douglas County School Choice Scholarship program (with appeals pending in both state and federal courts, including a likely review by the U.S. Supreme Court) is perhaps the most potentially far-reaching.

The Douglas County school choice program has been in legal limbo almost since its inception; the original legal challenge to the program was filed shortly before it went into effect in 2011, with Denver District Court Judge Michael Martinez issuing an injunction to halt the program almost immediately thereafter.  Almost two years later, the Colorado Court of Appeals reversed the lower court and upheld the school choice program. However, on appeal from that appeal, the Colorado Supreme Court, in an unusual 3-3-1 plurality decision, struck down the school choice program on a combination of constitutional and statutory grounds.  Currently, a petition for certiorari (request for review) remains pending before the Supreme Court of the United States (at issue:  whether it violates the Religion Clauses or Equal Protection Clause of the United States Constitution to invalidate a generally-available and religiously-neutral student aid program simply because the program affords students the choice of attending religious schools).  

Florida:

Meanwhile, a statewide tax-credit program in Florida has been subjected to legal challenges even longer (some elements of the program were challenged in 2009; the lawsuit was expanded in 2014 before being dismissed in May 2016).  However, that case (along with another challenge to the constitutionality of state tax credit scholarships, brought by the teacher’s union) is pending before the state court of appeals.

Nevada:

The Nevada Supreme Court recently heard oral arguments in twin challenges to that state’s education savings account (ESA) program – among the first major legal challenges to the ESA concept (as opposed to the more widespread voucher program approach).  Similar to the challenge to Colorado’s  Douglas County Choice Scholarship program, opponents object to the use of ESA (or voucher) funds to pay tuition at schools with religious affiliation (like Colorado, the Nevada state constitution has a Blaine Amendment barring use of state funds for “sectarian” schools).  However, like Colorado, proponents argue that since the choice of which schools to attend (and hence, where ESA or voucher funds are spent) lies with the parents, the state is not “propping up religious institutions in violation of the state constitution.”  

National Impact:

Each of these cases, alone, could have tremendous impact on the fate of school choice programs nationwide.  The fact that all of them are likely to be decided in the next year (or so; notoriously, the wheels of justice grind slowly) trebles the potential impact, and could prove decisive for the fate of school choice programs nationwide. Advocates – and opponents – of school choice have a protracted, drawn-out and resource-intensive (legal) battle ahead – with enormous stakes.  After all… it’s for the children.

References:

Court Battles Shape School Choice in Colorado – and Nationwide

The continuing saga of the ongoing court battles over the Douglas County School Choice Scholarship program (in its various iterations) highlight the central (and increasing) role of the courts (as opposed to elected school boards, or the state legislature in whom constitutional authority for making education policy and resourcing decisions is vested) in deciding how – and under what conditions –  our children receive an education.

Citizens of Colorado (and other states) hold elections every year to send representatives to different venues to consider and decide on policy (and allocate resources) for their children’s education: in odd-numbered years, for local school boards; in even-numbered years, for the state legislature, which has the sole constitutional authority to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.

Yet ultimately, the decisions about how education is funded, and how schools are run, are being made in neither of these arenas, but in the courts.

When an elected majority on the Douglas County School Board decided to create a school choice scholarship program in 2011, it was instantly challenged in court by diehard opponents of school choice, who sought to stop the program before it could educate any child outside the public school system.  The challenge revolved around whether an elected school district board has “the broad authority to contract with private schools for the provision of a public education to public school students” [per Education Policy Center] under the guise of opposition to “public funding” of education options outside the “public school” system.  One might think that making decisions about the provision of public education is precisely why county residents elect a school board, but apparently (at least in the view of the plaintiffs, and the courts in Colorado) those decisions are better made by appointed judges.

The Douglas County case also touches upon important constitutional issues such a separation of powers, establishment of religion, and collection & allocation of tax dollars, but ultimately comes down to a very basic and fundamental issue: who decides how to educate Colorado’s children?

Unfortunately, all too often the answer from the courts has been: we judges do.

The odyssey of the Douglas County effort to create more school choice options is illustrative.

Beginning in 2011, when anti-choice activists brought the legal challenge in Denver District Court, Judge Michael Martinez  blocked implementation of the program just as the school year was starting – leaving many parents scrambling to find alternative education choices for their children enrolled in (and relying on) the choice scholarship program.  Judge Martinez later made the original temporary injunction permanent, effectively sidelining the program through the appeals process.

Even when that ruling was overturned by the Colorado Court of Appeals, which reversed the District Court and affirmed the constitutionality of the school choice scholarship program two years later (Opinion announced 28 February 2013), the injunction remained in place, as the anti-choice losers in that case almost immediately appealed to the Colorado Supreme Court.

Of course, “immediate” in terms of court calendars can take a while: it was over a year later before the Colorado Supreme Court formally granted the Writ of Certiorari, accepting the appeal on 18 March 2014 – which opened yet another long process of legal wrangling.

It wasn’t until the end of the year (following submission of extensive legal briefs by both sides) that the Colorado Supreme Court heard oral argument in the case – which had gained national attention as the “ground zero” in the fight for school choice across the country.

Ultimately, it would be another half a year (29 June 2015) before the Colorado Supreme Court issued its decision: an unusual 3-3-1 split plurality decision reversing the Court of Appeals: 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.

Even that decision remains pending appeal before the U.S. Supreme Court, challenging whether the Colorado constitutional provisions (known as “Blaine Amendments”) on which the decision was based are themselves unconstitutional under the First Amendment.

Meanwhile, while the appeal of the original program – which included sectarian schools – was pending, the Douglas County School Board attempted to address those concerns with a new iteration of a school choice program excluding religious schools from participating (which, ironically, drew challenges from both sides of the spectrum: one challenging discrimination against religious schools, another one challenging the existence of any school choice scholarship program whatsoever, even if it did exclude religious schools – the pretense for the original challenge).  Coming full circle, the latter challenge ended up before the same judge (Denver District Court Michael Martinez) who again applied the permanent injunction to the new, non-religious school choice program – effectively killing any attempt to expand school choice in Colorado pending SCOTUS taking on (and ultimately deciding) the appeal of the Colorado Supreme Court decision.

The lesson for advocates of school choice?

Challenging entrenched education establishment special interests is a protracted, drawn-out and resource-intensive battle – with enormous stakes.  After all… it’s for the children.

References:

 

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:

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

Five years ago today, the Denver-based  Institute for the Advancement of the American Legal System (IAALS) - “a national, non-partisan organization dedicated to improving the process and culture of the civil justice system” – hosted a National Conference on Evaluating Appellate Judges (on 11-12 August 2011) at the University of Denver (Sturm Hall, 2000 E. Asbury Avenue, Denver CO 80208).

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

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

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

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

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

 Recommendations forImproving Appellate Performance Evaluation

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

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

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

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

The conference’s final report, typically, punted:

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

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

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

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

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

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

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

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

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

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

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

Ultimately, though – it’s worth the effort.

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.

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