The state’s Motion to Dismiss Plaintiffs’ Substitute Complaint echoes the same points and references raised in Clear The Bench Colorado’s review of the lawsuit when it was filed back in May of this year (”TABOR, citizen initiatives targeted by frivolous Fenster lawsuit“):

I. All the claims asserted by Plaintiffs present political questions that the U.S. Supreme Court has long held to be nonjusticiable. The Plaintiffs ask this Court to do something the Supreme Court has consistently refused to do: overthrow a state law for being too democratic.  Not only has the Court never done such a thing, it has repeatedly held that claims of this sort may not be entertained by federal courts. [Motion to Dismiss, p.5-6]

The Motion proceeds to highlight the danger of judicial activism that would inevitably result:

Beyond the “lack of judicially discoverable and manageable standards,” the claims presented here would entangle the Court in policy determinations it must avoid. [Motion at 8]

Noting further the hypocrisy of the plaintiffs’ argument that “ some direct democracy should be upheld, so long as it results in their preferred policy” [Motion at p.8] the state concludes

It would be difficult to imagine a more glaring example of “a policy determination of a kind clearly for non-judicial discretion.”  Baker, 369 U.S. at 216.

Noting the “narrow and limited authority” of judges, the Motion cites an earlier Federal court ruling:

Our entire System of Government would suffer incalculable mischief should judges attempt to interpose the judicial will above that of the [coordinate branches], even were we so bold as to assume that we can make better decisions.”) [ Pauling v. McNamara, 331 F.2d 796, 799 (D.C. Cir. 1963)]

Now where have we heard that before?

In fact, as the Motion further elucidates,

B. The Supreme Court has specifically held that claims like Plaintiffs’, based on citizen initiative power to tax, are nonjusticiable political questions [Motion at 11]

In a deliciously ironic twist, the Motion even cites the Colorado Supreme Court’s arrogation of legislative authority to the judicial branch in the Salazar v. Davidson redistricting case:

In Salazar, the court extended this rationale to include the courts.  79 P.3d at 1232-33, 1236-37.  Neither of these decisions has been disturbed.  See Colorado General Assembly v. Salazar, 541 U.S. 1093 (2004); Lance v Coffman, 549 U.S. 437 (2007) (refusing to address challenges to Salazar).  So even if Plaintiffs were correct that only a state’s “legislature” can enact laws, these cases require inclusion of the people (not to mention the judiciary) within that concept.

The remainder of the Motion addresses issues of Standing (in brief, the Plaintiffs don’t have any) to bring the case - which, while important, will most likely induce acute MEGO (”My Eyes Glaze Over”) in the typical (lay) reader and will not be recounted here.

Clear The Bench Colorado’s sole critique of the state’s Motion to Dismiss is that the state did not seek attorney’s fees from the plaintiffs under C.R.S. 13-17-101 (to offset costs to taxpayers) for filing what is clearly a ”frivolous, groundless, and vexatious” lawsuit.

Although an award of attorneys’ fees is rare (Clear The Bench Colorado won just such an award against “Colorado Ethics Watch” - CEW, pronounced “sue”, it’s what they do - one of only a few in the last decade) it can be done (although actually collecting on the judgement may take months, or years), when opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.

Such abuse of the courts for political posturing can and should be discouraged…

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.

The lawsuit was filed in Federal court on Monday by a group predominantly composed of current and former elected officials (including both Democrats and Republicans, although all current Republican legislators and the party organization vigorously oppose the lawsuit, in defense of the Colorado Constitution and the right of citizen initiative).  The lead attorney and “mastermind” behind the lawsuit is “superlawyer” Herbert L. Fenster - who has been shopping around the idea for over a year before finding enough plaintiffs and other attorneys (including former Democrat Congressman David Skaggs and former Democrat state senator Mike Feeley) to sign to the case.  Fenster and Skaggs both work at the firm McKenna, Long & Aldridge LLP, while Feeley works at the politically connected Brownstein Hyatt Farber Schreck law firm (a powerhouse Democrat political brokerage).

However, for a “superlawyer,” Fenster’s lawsuit is based on the most tenuous of legal grounds…

Legal precedent - including two relevant Supreme Court of the United States (SCOTUS) decisions - is clear; Fenster’s lawsuit is frivolous, the “Republican form of government” language in the Constitution’s “Guarantee Clause” (United States Constitution, Article IV, Section 4 - “The United States shall guarantee to every State in this Union a Republican Form of Government“) has been repeatedly ruled non-justiciable (meaning, not subject to determination by the courts), and constitutional constraints on government are, by definition, constitutionally allowed…

The two relevant SCOTUS cases on the “Guarantee Clause” have unambiguously 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.

It doesn’t get more clearly stated than that.

Since even a casual review of the legal literature by a non-attorney can turn up the clear and definitive legal precedent that leaves the lawsuit devoid of justification and any prospect for success in court, Fenster’s Folly clearly meets the definition of a “frivolous, groundless, and vexatious” lawsuit.  The Colorado Attorney General (along with any parties joining in the defense) should pursue recovery of costs (taxpayer dollars) spent in defending the suit against all attorneys and plaintiffs involved.

Although an award of attorneys’ fees is rare (Clear The Bench Colorado won just such an award against “Colorado Ethics Watch” - CEW, pronounced “sue”, it’s what they do - one of only a few in the last decade) it can be done (although actually collecting on the judgement may take months, or years), when opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.

Such abuse of the courts for political posturing can and should be discouraged…

Given the unambiguous and overwhelming constitutional precedent against the case, Fenster’s Folly must be viewed for what it clearly is: a massive PR stunt that’s merely the opening salvo in part of a concerted attack on Colorado’s Constitution and the citizen initiative process in Colorado.

Ironically, part of that attack is likely to come in the form of legislatively referred ballot measures and/or “citizen” initiatives (such as state senator Rollie Heath’s “for the children” tax hike proposal) along with additional court cases to nibble away at TABOR (the Colorado Supreme Court is a perfect 0-for-15 in upholding Article X Section 20 of the Colorado Constitution - almost as perfect losers as the 0-for-16 2008 Detroit Lions; another reason Colorado has been called a “Judicial Hellhole“).

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.

After Secretary of State Bernie Buescher failed in his duty to provide legal clarity and act to forestall an ongoing series of harassing attacks (er, campaign finance “complaints”) launched by his roundly rebuked ideological ally “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) against judicial accountability organization Clear The Bench Colorado, “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) continued attacks despite knowing that they lacked legal merit.

In fact, CEW’s Supplemental Complaint selectively omits key language from the Colorado Constitution in an attempt to deceive the judge - a clear violation of legal ethics (Colorado Rules of Civil Procedure, Rule 11).  Indeed, CEW’s actions demonstrate a consistent pattern of pursuing harassing and ‘vexatious’ attacks against Clear The Bench Colorado:

A vexatious claim “is one brought or maintained in bad faith to annoy or harass, and may include conduct that is arbitrary, abusive, stubbornly litigious, or disrespectful of truth.” (ref. Colorado Court of Appeals, No. 08CA0425. Munoz v. Measner.)

Even knowing the facts of law and the Secretary of State’s guidance to Clear The Bench Colorado, “CEW chose to litigate the matter and file its Supplemental Complaint, subjecting Clear The Bench to additional attorney’s fees and costs, damage to its reputation, and hampering its fundraising efforts due to the cloud created by litigation.”  (Clear The Bench Colorado Motion to Dismiss, Case No. 2010-0009)

So, to summarize: CEW’s latest attack fits an ongoing pattern of unsuccessful, politically motivated “ethics” complaints designed to distract, disorient, and sling mud in the (vain) hope that something might stick.  Ultimately, they don’t care if they win or lose the case (their lopsided loss-win ratio bears this out), since their priorities are (1) smear, (2) frame the media debate and gain attention, (3) divert resources & attention, (4) intimidate, and (5) maybe (if they get lucky) occasionally win a case.

Now more than ever - stand with Clear The Bench Colorado in defense of your constitutional rights. Exercise your right to vote “NO” on the 4 (er, 3 now) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority” (Justices Michael Bender, Alex Martinez, Nancy Rice, and soon to be minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business from against eminent domain abuse, your right to fair representation in government, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.” Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions - and exercise your right to vote ”NO“ on retaining these unjust justices in office for another 10-year term!

The Secretary of State’s letter denying Clear The Bench Colorado’s request for legal clarity by merely formally adopting the draft rule previously discussed and recommended by the office’s professional staff over a year ago even (again) documented the fact that the SOS office had issued specific guidance to file as an Issue Committee (the CEW complaint alleges that Clear The Bench Colorado should have filed as a Political Committee instead and should be held retroactively liable for fines despite reliance on the Secretary of State’s guidance):

… the Secretary of State provided informal guidance to Clear The Bench that the group might more appropriately register as an issue committee.

Clear The Bench submitted another [amended] committee registration in June of 2009, registering as an issue committee.  This registration was accepted by the Secretary of State, and Clear The Bench has since been registered as an issue committee. [emphasis added]

If citizens and grassroots groups wishing to participate in the civic and political process cannot rely on the guidance issued by the Secretary of State - either due to ignorance, incompetence, or ideological leanings - and are left open to “frivolous, groundless, and vexatious” attacks by groups such as CEW which exist solely to tie up their resources, who will be left able to participate?  Only the entrenched special-interest groups and “big-money” political groups that are tied in with established incumbents - leaving the average citizen out in the cold.

We The People can (indeed, as citizens, we must) hold our public officials - both elected and appointed - accountable.  Be a citizen, not a subject - get informed, then exercise your right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice - soon to be minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!) and contributions - and exercise your right to vote “NO” on giving these unjust justices another 10-year term!

Some voices - notably professional politicians such as Susan Thornton, as expressed in her Denver Post article (”Criticism of retiring Judge (sic) Mullarkey unfair“), or other legal professional advocacy groups (such as the Grueskin group formed to defend Colorado Supreme Court incumbents and oppose the growing influence of Clear The Bench Colorado) believe that Citizens have no place in the process.  Their message?   ”Trust us, the elite political insiders, not your lying eyes. We know better.”

Others - spearheaded by Clear The Bench Colorado, but also including a large number of legal reform groups, transparency and good-government advocates - believe that Citizens not only have the right (as clearly expressed in the Colorado Constitution) but even the responsibility and duty to get informed and act (”vote “NO on unjust justices!“) accordingly. (Responding to Thornton’s attack on independent critiques of the judiciary -  Accountability, Transparency apply to the Colorado Supreme Court, too - we defend the constitutional right of Colorado Citizen participation in the process).

The following article, published in the August edition of The Constitutionalist Today, expands upon that point:

Restoring Accountability and Transparency to Colorado Courts -

Why Citizen participation in judicial selection and retention is vitally necessary

A number of years ago, Colorado embarked upon an experiment in government that was touted as a great reform. Attempting to “take the judges out of politics” our state did away with direct, contested elections of judges in favor of the “merit selection and retention process” pioneered by the State of Missouri (the “Missouri Plan”), under which judges and supreme court justices are nominated by commissions, appointed by the governor, and only subjected to checks and balances by the citizens of the state in periodic “retention” elections (posed as a simple yes/no question on the ballot).  For Colorado Supreme Court justices, the opportunity to hold them accountable comes around only once every TEN years, posed as a ballot question: “Should Justice [name] be retained in office?” (Yes/NO)

In theory, the system looked like a good idea; after all, selecting judges and supreme court justices on the basis of “merit” instead of “ability to win an election” - putting professional qualifications ahead of political ones - appeals to our common desire for fair play and “equal justice before the law” and removes some of the most direct and obvious temptations for corruption via “quid pro quo” campaign contributions.

In practice, however, the “Missouri Plan” systems in place in several states seem to have merely shifted the potential for undue influence to well-connected interest groups (particularly the “in-crowd” of bar associations, other attorney groups, lobbyists, and others directly involved with the courts) operating largely outside of public scrutiny.  Lack of transparency - in both the up-front selection and back-end review & retention processes - has actually led to an utter lack of accountability for Colorado Supreme Court justices in Colorado.

A recent Wall Street Journal article (”Voters vs. George Soros - Taking judicial selection away from the lawyers guild“) highlighted some of the concerns with the judicial selection and retention process under the “Missouri Plan” used by Colorado:

“Designed to take politics out of the courtroom, the plan has in practice handed disproportionate influence over the judiciary to lawyers and bar associations. The effect has been to give a single profession control over a third of state government, with little political accountability.”

As with many things brought to us by the “good idea fairy”, the devil is in the details. Colorado’s Judicial Performance Review Commission (JPRC) “performance” reviews are heavily biased in favor of judicial incumbents (over the last several decades, issuing only 15 recommendations for non-retention resulting in only 7 judges being voted out of office) and provide little substantive information for citizens trying to decide how to vote on judges, especially supreme court justices. These JPRC review “narratives” (published at taxpayer expense in the “Blue Book” voter guides) focus almost exclusively on qualifications (essentially, have they checked all the right boxes) instead of performance (have supreme court justices, for instance, properly carried out their duties - and lived up to their oaths and obligations, or not).  The most important judicial quality of all - upholding the law, as written (not fabricated or “interpreted” according to a personal or political agenda) - is given short shrift or even no consideration at all.  (Additional information on the shortcomings of Colorado’s Judicial Performance Review process is available in a pair of Denver Post articles: “Demand accountability from judges, too” July 2nd CTBC guest commentary; and “Evaluating the performance of justices“, Feb. 13th [non-CTBC] guest commentary).

The recently announced impending retirement of Colorado Supreme Court Chief Justice Mary Mullarkey - who decided to quit rather than be held accountable by voters this November - has also raised interest in how Colorado appoints and evaluates judges (and particularly supreme court justices), in the first place.  The process is not merely of “academic” interest.  From an Institute for Legal Reform publication reviewing “merit selection” systems and best practices across several states:

“The procedures that determine how state judges are selected and placed on the bench, particularly those in the highest courts, are central to the ultimate quality of justice in our courts. Every American has a stake in the way state judges are chosen.(emphasis added) Some states that select their judges through a commission-based appointive system have been criticized for the absence of public input into the process, lack of transparency, secretiveness in their procedures, and the political cronyism that can occur when commissions and the governor operate in what is essentially a closed system.”

The common theme in critiques of the “Missouri Plan” system of “merit selection & retention” is the lack of transparency in commission deliberations (both during front-end judicial selection, and in back-end judicial performance review and retention) and lack of meaningful opportunity for public participation and comment.  This lack of transparency leads to a lack of public confidence in our judiciary and ultimately to a lack of accountability for the increasingly active and powerful Third Branch of our government.  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 supreme court justices are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.  In sports, referees who violate the rules and demonstrate a consistent bias for one team lose their jobs.  In government, because Colorado Supreme Court justices wield so much power, the stakes are much more important than an athletic contest.

Of course, the biggest political “players” are well aware of this - they naturally prefer the closed-door, non-transparent, unaccountable, political insider-dominated process that allows them enormous influence behind the scenes.  The usual suspects include the “lawyers guilds” and similar groups.  The WSJ article also singles out another powerful and well-connected cabal:

“The system has powerful defenders, however, including groups connected to the George Soros-funded Justice at Stake.”

Soros’s group would be more aptly named “Justice put to the Stake”.

Here in Colorado, a new pressure group of apologists was recently formed by politically influential and well-connected attorneys (led by Democrat super-lawyer and frequent Colorado Supreme Court litigator, Mark Grueskin) specifically to counter the growing supreme court reform and accountability movement spearheaded by Clear The Bench Colorado.  (Story broken by Law Week Colorado, “Group aiming to defend Colorado judiciary comes to light“, followed up in Westword and on Clear The Bench Colorado (”More details emerge on group formed to oppose accountability for Colorado Supreme Court incumbents“).

Along with articles published in mass media outlets (for example, a recent Denver Post article calling “Criticism of retiring Judge Mullarkey unfair“), these groups are attempting to maintain the crony system of political insiders picking and preserving in power supreme court justices who rule against the rights of the people in favor of big government - putting you in your place as a subject, not protecting your rights as a citizen.  They can get away with it only as long as they succeed in keeping voters in the dark.

That is why public participation - not just by a select few politically connected individuals put on commissions, but by fully informed public discussion and debate - is so critically important to maintaining good government (and accountability) in our judiciary.  Become an informed citizen - review sources such as Clear The Bench Colorado and get to Know Your Courts to get “the rest of the story”.

“The original purpose of using a commission-based merit selection system was to reduce the politicization of the judiciary system. As such, it is imperative that merit selection systems not simply hide the politics behind the closed doors of a Commission but drive out destructive influence through a system that is transparent and accessible to the public.”

“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

We The People can (indeed, as citizens, we must) hold our public officials - both elected and appointed - accountable.  Be a citizen, not a subject - get informed, then exercise your right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice - soon to be minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!) and contributions - and exercise your right to vote “NO” on giving these unjust justices another 10-year term!

Meanwhile, other more topically substantive publications have been following the unraveling of the “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) “frivolous, groundless, and vexatious” campaign finance “complaint” against Clear The Bench Colorado.

This week’s coverage of the story opened up with Monday’s radio news segment on 1310AM KFKA with Face The State managing editor Brad Jones discussing how “liberal litigation shop Colorado Ethics Watch is ordered to pay up for a misfired lawsuit.”  (The “Colorado Ethics Watch” - CEW, pronounced “sue”, it’s what they do - segment begins at 10:45 on this audio clip).  A few highlights:

“Colorado Ethics Watch in particular exists solely to tie up conservative causes in court… and that is an established campaign tool.  Mark Grueskin, a major Democratic attorney who takes up a lot of these kinds of cases… basically admits as such.  Litigation is now an expense, both in prosecution and defense, for campaigns…

The part that’s really important to note here is that… in Colorado, an attorney being forced to pay the opposing counsel’s attorneys fees is a very rare event indeed, because under Colorado’s judicial rules, when a lawyer signs that complaint, they are certifying that it is a legitimate question of law… and in this case, the judge said that ‘you have no business filing this complaint because you knew that the facts were not with you and that you had no chance of prevailing, but you pursued it anyway…

On Tuesday, Law Week Colorado picked up the story of last week’s ruling by Administrative Law Judge Robert Spencer which not only dismissed CEW’s frivolous, groundless, and vexatious “complaint” against Clear The Bench Colorado but also took the rare step of directing CEW to pay thousands in legal fees because the “complaint” was so completely without merit.  Law Week’s article (”Denver Administrative Judge Upbraids Colorado Ethics Watch“) noted that the judge soundly rebuked ”Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) in his written order (published Monday), which the article also included in full.  Some excerpts:

An administrative law judge has chastised a Denver-based ethics-watchdog group, calling a recent complaint filed by the group “substantially groundless and frivolous.”  …

In the written order, Spencer said Ethics Watch “was in possession of facts putting it on notice that its claim was groundless but at no time did it seek to voluntarily dismiss its claim.”

Today, Law Week also covered Clear The Bench Colorado’s request (filed Tuesday) for the Secretary of State’s office to provide legal clarity (and foreclose CEW’s plans for an endless cycle of additional “complaints” in their ongoing efforts to harass our grassroots movement) by issuing a definitive ruling which codifies the guidance issued by that office to Clear The Bench Colorado over a year ago:

Clear The Bench wants the Secretary of State to adopt a rule that says “a committee whose purpose is the support or opposition of the retention of a judicial seat shall register as an issue committee…” The group, which all state Supreme Court justices now up for retention, registered as an issue committee on the advice of the Secretary of State’s office.

Clear The Bench Colorado also received coverage in the context of the controversy currently surrounding the Colorado governor’s race.  In addition to the Denver Post editor’s misguided assumptions about what constitutes a “good outcome” for CTBC’s efforts to hold our incumbent Colorado Supreme Court justices accountable to the law (hint: it’s not dependent on who’s governor), Clear The Bench Colorado received national exposure in the latest Human Events article by Colorado correspondent Ross Kaminsky (”GOP in Disarray in Colorado Governors Race“) which highlights the importance of the Colorado Supreme Court vote in upholding the principles of constitutional limits on government power, in Colorado and beyond:

In addition to the redistricting following the results of this year’s census, there is also a grassroots movement called Clear the Bench Colorado which aims to get Coloradoans to vote out three ultra-liberal state Supreme Court justices.

CTBC has put enough pressure on the judges that the chief justice of the Colorado Supreme Court, a woman who has demonstrated no respect for the rule of law or the will of the people, announced her retirement a few weeks ago rather than face the voters.  If CTBC is successful in causing the removal of one or more justices, the next governor will appoint the replacement(s).  As important as Kagan or Sotomayor is on a national level, these vacancies will be at least as important within our state. [emphasis added]

Also today, the Face The State radio minute (broadcast on a variety of stations across Colorado) focused on the unethical practices of “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) conducting legal harassment of opposing groups.  The broadcast segment (entitled “Names can be deceiving”) called CEW to task for its habit of filing harassing “complaints” without legal merit:

Would a group called Colorado Ethics Watch ever do something out-of-bounds? Names can be deceiving…

Political attack ads are often funded by some group with a name like, “Coloradans for fluffy bunnies” or “The campaign for rainbows and sunshine.” Names can be deceiving. Take for example Colorado Ethics Watch, which purports to use the courts to pursue unethical political behavior. Well, so long as the target is a conservative, that is. Despite their intentions, the group has every right to access the legal system. But last week, CEW was slapped with attorneys fees for filing a complaint it knew had no merit. In Colorado, fees are assessed sparingly, and only in clearcut cases like this. It’s the second time in four years CEW has been rebuked like this. Legal harassment doesn’t sound very “ethical” to me.

Finally, in news breaking later in the day, Law Week also published the number of applicants (31 people applied) for the impending vacancy on the Colorado Supreme Court that will be created once the announced retirement of Chief Justice Mary Mullarkey (who announced her intent to retire rather than be held accountable by voters in the November elections) becomes effective (currently scheduled for November 30th).  In keeping with current practice and tradition (but not as a statutory requirement), the Judicial Nominating Commission has NOT released the names of the would-be Colorado Supreme Court justices to the public.  (Clear The Bench Colorado is pursuing that information in the interest of public accountability and government transparency - stay tuned for upcoming announcements).

We The People can (indeed, as citizens, we must) hold our public officials - both elected and appointed - accountable.  Be a citizen, not a subject - get informed, then exercise your right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice - soon to be minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!) and contributions - and exercise your right to vote “NO” on giving these unjust justices another 10-year term!

Today’s (Sunday) Denver Post provided some clues as to what Dan Haley’s question(s) might have been: his editorial in the “Perspective” section purports to address “Unintended consequences in judicial push” (meaning, of course, Clear The Bench Colorado).

Unfortunately, Haley probably would have benefited from first getting the answer(s) to his question(s) of Clear The Bench Colorado, as his editorial contains a few errors of both fact and interpretation.

Although Haley starts out with a reasonably accurate summation of the “judicial push” (to vote “NO” on the unjust justices of the Colorado Supreme Court subject to voter approval this November) he misses the mark on “unintended consequences”:

A conservative group called Clear the Bench Colorado wants Coloradans to clear the Supreme Court bench this November and oust three Supreme Court justices who are up for retention.

(They originally had four justices in their sights, but earlier this summer Chief Justice Mary Mullarkey announced her retirement as of Nov. 30.) [Ed. quitting rather than facing voters]

In Colorado, judges and justices are appointed by the governor, but they must be retained every few years by voters.

The justices’ crimes, according to the group’s website, include “aiding and abetting . . . unconstitutional property tax increases; the unconstitutional elimination of tax credits and exemptions; and unconstitutionally re-defining taxes as fees,” among other things.

Those three rulings, of course, came after controversial decisions by Gov. Bill Ritter - decisions many on the right derided as unconstitutional but the court upheld nonetheless.

Actually, those were only two rulings (the “Mill Levy Tax Freeze” property tax increase ruling also created the loophole the legislature exploited with the “Dirty Dozen” new tax laws; another ruling enabling taxes to be collected under the guise of “fees” led to the Colorado Car Tax and other “fees”) among many.  Other key rulings expanded eminent domain abuse to seize people’s property, grabbed the (legislative) power to apportion legislative district boundaries (aided by the recent “Mary-mandering” bill) and set the state up for fiscal disaster by grabbing the power to set school funding levels (Lobato v. Colorado) for unelected judges away from elected legislators and school boards.

The Denver Post editorials have been appropriately critical of these rulings (neatly summarized in Vincent Carroll’s excellent piece, “Mary Mullarkey’s Troubling Legacy - Mullarkey Court altered Constitution’s true meaning“) so it is unfortunate that, until recently, the Post has given scant coverage to the very important issue of judicial retention elections for the authors of those rulings.

Where Haley most seriously misses the mark (and misstates the facts) in his editorial (which could have been avoided with that follow-up message or phone call) comes in his review of the process in the aftermath of a “NO” vote for the incumbent Colorado Supreme Court justices in the upcoming elections.  Although he starts out on solid ground,

If voters choose not to retain a justice, and the judge finishes out his term, the next governor would appoint the successor.

Haley then veers off into some tenuous territory:

Here’s the rub: Should a justice decide to resign after not being retained, it would trigger a 30-day clock for the Supreme Court nominating commission to propose replacements.

Three names would then be sent to Ritter for each vacancy, and he would have 15 days to appoint someone. If he failed to appoint someone, the Supreme Court chief justice would appoint someone within 15 days.

That strict timeline is laid out in the Colorado Constitution. So if an ousted justice resigns within nine days of the retention vote, Ritter would appoint the successor.

This is an implausible and, frankly, silly scenario.  Once voted out, the justices have no office to resign - like any other lame-duck politician, they would serve out their terms (which, for the incumbent justices up for a vote this NOvember, expire the 2nd Tuesday in January) but lack authority to dispose of their office in such fashion.  Otherwise, every officeholder losing a vote would “retire” instead…

Any attempt to repudiate the will of the voters in such blatant fashion would not only “look nakedly political” - it would likely trigger a constitutional crisis, if not “torches & pitchforks.”

Haley’s mention of such a ridiculously implausible scenario is most likely an attempt to “poison the well” for those few Republican backers of Clear The Bench Colorado who might allow a narrowly partisan view to cloud their judgement.  It won’t work - Colorado voters are smarter than that.  The prospect of ten more years of “the devil you know” - three Colorado Supreme Court justices with a consistent record of violating the constitutional rights of Colorado citizens, who would lock in a Democrat majority via their lock on the state-level legislative reapportionment and congressional redistricting process IF (but only if) the current majority remains in power to elect the next Chief Justice after that office comes vacant following retirement of the current chief - balanced against the chance to give a new governor the chance to appoint three replacements who will be subject to another vote in only TWO years (instead of TEN) will serve to remind Colorado voters that the MOST important votes on this year’s ballot are “NO” votes on the remaining three ‘unjust justices” who seek their approval for another decade’s leave to violate their rights.  No matter who becomes governor, Clearing The Bench of these three incumbents is a net win for Colorado.

“Unintended consequences?”  No.  ”Intentional disinformation?”  Perhaps.

It’s nice to know, at least, that the Denver Post and editor Dan Haley “have no problem with groups like Clear the Bench trying to educate voters about judges and justices” - we’re looking forward to our opportunity to discuss these vital votes with the Denver Post editorial board and express the hope that they will (finally!) step up their coverage of this critically important issue on the news pages as well.

We The People can (indeed, as citizens, we must) hold our public officials - both elected and appointed - accountable.  Be a citizen, not a subject - get informed, then exercise your right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice - soon to be minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!) and contributions - and exercise your right to vote “NO” on giving these unjust justices another 10-year term!

Yes, it’s still more than three months until the judicial retention elections in November, when Colorado citizens will be able to exercise their right to vote “NO” on the three remaining ‘unjust justices’ of the Colorado Supreme Court’s incumbent ‘Mullarkey Majority’ who have declared their intent to allow themselves to be held accountable (minus, of course, Chief Justice Mullarkey herself, who last month announced her intent to retire rather than be held accountable by voters in the November elections).

Earlier today, however, Clear The Bench Colorado won a stunning victory when Administrative Law Judge Robert Spencer not only dismissed the frivolous, groundless, and vexatious “complaint” by self-proclaimed watchdog (actually, attack dog) “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) - which we have been predicting for weeks - but also ordered CEW to pay ‘tens of thousands’ in attorney’s fees to Clear The Bench Colorado because the complaint was so completely without merit.  Face The State broke the story earlier today (”Self-styled ethics watchdog ordered to pay ‘tens of thousands’ to judicial-reform campaign“):

For the second time in its four-year history, the group Colorado Ethics Watch has watched one of its trademark ethics complaints backfire after it was ordered to pay attorneys’ fees to one of its targets. An administrative law judge today threw out the group’s claims against Clear The Bench Colorado, an issue committee that seeks to oust three state Supreme Court justices on this November’s ballot.

The monumental nature of Clear The Bench Colorado’s victory in this case - particularly the award of attorney’s fees - is difficult to overstate.  It is rare (indeed, almost unheard of - though not unprecedented) for attorney’s fees to be awarded to the defendant in this type of case, as Face The State had pointed out in an earlier article (”Judicial-reform group lashes back at ‘frivolous, groundless’ complaint“):

Attorneys fees are awarded sparingly by Colorado judges, largely because those requesting the sanction must prove opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.

The award indicates that the judge not only thought that CEW’s case (or “complaint”) was bad - he thought it was SO bad that he took the unusual step of slapping CEW with the entire bill (which, as noted, runs into the ‘tens of thousands’).

CEW’s attacks against Clear The Bench Colorado fit an ongoing pattern of unsuccessful, politically motivated “ethics” complaints designed to distract, disorient, and sling mud in the (vain) hope that something might stick.  Ultimately, they don’t care if they win or lose the case (their lopsided loss-win ratio bears this out), since their priorities are (1) smear, (2) frame the media debate and gain attention, (3) divert resources & attention, (4) intimidate, and (5) maybe (if they get lucky) occasionally win a case.  As many publications noted at the time, CEW’s attack was just another cheap political stunt.  Even the Secretary of State’s office called CEW Director Toro’s statements “disingenuous” (which is a polite way of saying, ‘lying through your teeth’).

Sadly, “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) doesn’t seem to know when to quit.  Even after being definitively slapped down, CEW Director Luis Toro announced his intent to file an amended or “supplemental” complaint and continue CEW’s harassment of the judicial accountability group Clear The Bench Colorado.  And why not?  It’s not as if they’re spending their own money - not only are they well-funded by Colorado’s own “4 horsemen” - multi-billionaire activists Tim Gill, Jared Polis, Rutt Bridges, and Pat Stryker (as documented in the excellent book  The Blueprint by former Rep. Rob Witwer & 9News Reporter Adam Schrager) but also by their parent organization in Washington D.C. (with a reported 2008 revenue of $1.35M - that’s million).  That’s if they’re even spending money at all - apparently Toro’s co-attorney (Aaron Goldhamer of Sherman & Howard, LLC) is working the case pro bono (donating his time, and the firm’s resources, for free).  Perhaps Sherman & Howard clients might wish to ask about how their money is being spent?

Even with all that money, power, and legal talent (when mentioning “talent”, I’m talking about Goldhamer, and other attorneys working behind the scenes - not Toro, who’s pretty much a legal hack, not even capable of doing the most basic legal research before attacking) lined up against Clear The Bench Colorado -  we still win!

Comes from doing the right thing (as previously noted, CTBC registered in a timely manner, fulfilling all reporting requirements, in accordance with the Secretary of State’s guidance and established campaign finance regulations and procedures) - but still, score one for the underdog!

It should come as no surprise that the allies of those on the courts abusing the constitutional rights of Colorado citizens would themselves attempt to abuse the courts to achieve their goals.  What may have come as a surprise to CEW is that this time, the good guys fought back - effectively.

Fortunately, they can be stopped - by citizens with the courage to fight back.  Show your support today - stand up to unethical attorneys and sleazy solicitors, and contribute to help provide the resources for Clear The Bench Colorado to prevail against what are ultimately attacks on YOUR freedom.  Also, since sweet success is the best revenge - spread the word about why the four (er, three remaining) incumbent justices of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, and soon to be minus Chief Justice Mary Mullarkey) deserve a “NO” vote in November (and why CEW has been sicced on Clear The Bench Colorado to cover for special interests who benefit from keeping them on the bench).  Remember, they need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business from against eminent domain abuse, your right to fair representation in government, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.” Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions - and exercise your right to vote ”NO“ on retaining these unjust justices on the bench for another 10-year term!

How did CEW (pronounced “sue” - it’s what they do) Director Luis Toro know this in advance of filing?  Simple - because we told him, at the conclusion of nearly three hours of being harangued in a deposition this Monday (mentioning that I would be out of town the following week for my annual military training obligation).  Toro’s co-counsel Aaron Goldhamer (of Sherman & Howard, LLC) graciously expressed his thanks for my service, while Toro was conspicuously silent (apparently, my hearing was insufficiently acute to pick up on the gears grinding behind his beady little eyes as he devised his next opportunity for harassment).

For those of our readers who have never experienced the dubious pleasure of being the subject of a legal ‘deposition’ (hopefully most of you), allow me to briefly describe the process (somewhat akin to an EPW interrogation, but without forced sleep deprivation (other than any prep time) or stress positions, (other than wearing a coat & tie).

Like an interrogator, the opposing attorney gets to ask all the questions.  Often the attorney will ask the same question, repeatedly (perhaps changing the phrasing, or putting it in a different context) in an attempt to catch (or create) an inconsistency in the response.  The respondent is not allowed to challenge the line of questioning, or ask “why do you want to know?” (although the respondent’s attorney may raise objections as to relevance and scope of particular questions or line of argument).  Also like an interrogation, the respondent can be compelled to answer (albeit by legal, rather than physical, force).

Going through CEW’s interrogation (er, deposition) was an interesting experience. CEW (pronounced “sue” - it’s what they do) Director Luis Toro did indeed spend a lot of time asking questions to which he already knew (or had previously received) the answer; over the course of the deposition, his frustration with my consistent responses (including documented references) became increasingly apparent.  Toro then resorted to the ol’ “restate the answer the way I want it” game (”So what you said was X” when the actual statement was Y or Z).  I called him on this trick on several occasions and stated my objections to his attempts to put (false) words in my mouth (wonder how Toro’s tactics will sit with the judge reviewing the transcript?). Toro also attempted on several occasions to “go fish” for information outside the scope of what was allowable in the deposition. When he did, my attorney (I have possibly the best campaign law attorney team in the state - Scott Gessler and Mario Nicolais - in my corner) challenged Toro, who backed down each time he was invited to “call the judge” to resolve the dispute. (In poker, that’s referred to as “calling his bluff”).

The bigger picture here, however, is the abuse of campaign finance rules and regulations via suits and “complaints” by a secretly funded attack group (CEW, pronounced “sue” - it’s what they do), unaccountable to the public, with a pattern of filing frivolous, groundless, and vexatious lawsuits and “complaints” against grassroots groups and citizen initiatives in an attempt to deny popular participation in civic activity.  Attacks such as these - abusing the courts and the legal “complaint” process to drive up the cost of civic participation - further tilts the balance in favor of entrenched big-money interests and violates the constitutional rights of citizens to exercise free speech (particularly in the political arena, where those protections are most precious).

CEW’s attacks against Clear The Bench Colorado fit an ongoing pattern of unsuccessful, politically motivated “ethics” complaints designed to distract, disorient, and sling mud in the (vain) hope that something might stick.  Ultimately, they don’t care if they win or lose the case (their lopsided loss-win ratio bears this out), since their priorities are (1) smear, (2) frame the media debate and gain attention, (3) divert resources & attention, (4) intimidate, and (5) maybe (if they get lucky) occasionally win a case.  As many publications noted at the time, CEW’s attack was just another cheap political stunt.  Even the Secretary of State’s office called CEW Director Toro’s statements “disingenuous” (which is a polite way of saying, ‘lying through your teeth’).

So why is “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) still in business, despite their abysmal success rate in winning judgments? Shouldn’t they have run out of (other peoples) money by now?

Not when the “other people” funding CEW (pronounced “sue” - it’s what they do) include multi-billionaire activists Tim Gill, Pat Stryker, Jared Polis, and Rutt Bridges - facilitated by political operatives Al Yates and Mark Grueskin - and a host of other well-heeled  attorneys and politically-connected powerhouses who’s identities are kept secret because CEW won’t open their financial records to public scrutiny (in contrast to the open financial records of citizen-led accountability efforts such as Clear The Bench Colorado). Operating at the edges of public awareness (skirting transparency, public accountability, and the ragged edges of campaign finance and other laws), groups like CEW (pronounced “sue” - it’s what they do) coordinate their actions towards advancing the “progressive” agenda statewide (with significant success so far; read The Colorado Model (by Fred Barnes) and, more recently, The Blueprint (by former Rep. Rob Witwer & 9News Reporter Adam Schrager) for an analysis of the success of these groups in Colorado - and beyond).

Unfortunately, even when they lose, they win - by tying up time & talent, diverting resources, and discouraging honest people from participation in the civic arena.  Groups such as the grossly misnamed “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) are a blight on the body politic, an insult to everyone who believes that citizens should be able to speak freely.

Fortunately, they can be stopped - by citizens with the courage to fight back.  Show your support today - stand up to unethical attorneys and sleazy solicitors, and contribute to help provide the resources for Clear The Bench Colorado to prevail against what are ultimately attacks on YOUR freedom.  Also, since sweet success is the best revenge - spread the word about why the four (er, three remaining) incumbent justices of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, and soon to be minus Chief Justice Mary Mullarkey) deserve a “NO” vote in November (and why CEW has been sicced on Clear The Bench Colorado to cover for special interests who benefit from keeping them on the bench).  Remember, they need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business from against eminent domain abuse, your right to fair representation in government, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.” Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions - and exercise your right to vote “NO” on retaining these unjust justices on the bench for another 10-year term!

The gubernatorial candidates drew lots to determine order of appearance.  Josh Penry, drawing 1^st choice, elected to speak last; Scott McInnis, drawing 2^nd, elected to speak first, leaving the middle slot to Evergreen businessman Dan Maes.

Scott McInnis opened his remarks with his signature line that “the three priorities of my campaign are jobs, jobs, jobs.”

He stated the importance of sending the message that “Colorado is open for business” – and criticized the Ritter administration for sending the opposite message, especially for the oil & gas industry that has so long been a cornerstone of the Colorado economy.  McInnis singled out Ritter’s new regulations on the oil and gas industry as “punitive” – not an example of “best practices” or common-sense controls (which he would support), but actively hostile to economic development and employment, particularly on Colorado’s Western Slope, among the hardest-hit areas in the state for unemployment.

McInnis highlighted Ritter’s regulatory excesses as well as an increased – and increasing – reliance on “fees” as an unconstitutional end-around to “balance the budget.”  He specifically criticized Ritter’s Auto Tax (the FASTER license “fee” increase), questioning whether it was “in accord with TABOR” before providing the self-evident answer “No” – referencing his personal experience of being stuck with $100 in “late fees” for an old camper.  McInnis noted that the Colorado Car Tax and other increased “fees” and taxes were “the result of a Democrat-stacked Colorado Supreme Court” – “something I’ll take care of” as governor.

McInnis also stressed the need for “party unity” several times in his speech – stating that “we must unify – early – behind a single candidate in order to defeat an incumbent governor.”  He stressed the difficulty in defeating an incumbent governor, based on the historical record (occurring only twice in living memory – both times, ironically, Republicans).

Another recurring McInnis theme was “experience” – stating that “we need leadership that’s been there, done that” and calling Bill Ritter “an experiment we decided to try in electing a governor without experience” and continuing to state that Ritter was “overqualified” for the job when he was elected – er, “underqualified” (he caught himself shortly after recognizing his misstatement, which garnered a laugh).

McInnis highlighted his “long record” as a Congressman and urged the audience to review his votes – specifically, “against taxes” and “100% pro-life” along with his experience with Congressional re-districting and reapportionment – “I’m the only one who’s gone through that” – as a particularly important issue with the upcoming census: “I know how we can get it done.”

Dan Maes, speaking second, made light of his “political outsider” status – joking that he’s “Dan who?” He introduced himself to the audience – “I’m not a lawyer or a lobbyist; I’m not a career politician – is that OK?” to laughter and applause, before stating that as a successful businessman, “I bring executive skills to the table – and the governor’s office is an executive position, demanding executive skills.”

Maes stressed his business experience (“I’ve turned around failing businesses – I’ll turn around the failed economic policies in Colorado”), negotiating skills (getting credit-reporting giant Equifax to agree to a policy change) and pragmatic approach to “create solutions” as well as his lack of vested constituents (“I’m someone who owes no one – and no one owes me”) along with being a “man of faith – who won’t yield on matters of principle”) as his qualifications for governor.

Maes highlighted Education (“I have kids in public schools”), Energy (“we need the energy industry back on its feet – Colorado should be #1 in natural gas production), and regulatory reform (specifically citing the recent ‘unconstitutional property tax increase’, the similarly ‘unconstitutional vehicle tax increase’ and Ritter’s regulations and policies “destroying the oil and gas industry”) as key policy areas.

He stressed the need for the governor’s office to “represent Colorado from a business standpoint” while noting that “Governors don’t create jobs – but can create a business environment that creates success.”  Maes called the 2010 elections in Colorado “a referendum on Bill Ritter” and his policies – and called for a resounding change for the better.

Josh Penry opened by recognizing “something profound in Colorado – a backlash against big government, a push back to restore limits to government” marking a very different political environment.  He said that despite real challenges, he sees an opportunity “to get Colorado moving in the right direction” with new leadership.

Continuing that theme, Penry stated that both parties – in Colorado and nationwide – have let people down.  He warned that the GOP must not “fall into the trap of being the party of ‘business as usual’ – it must own up to past mistakes, and make a clean break with the past.”

Penry asserted that Ritter “moved Colorado in the wrong direction” – increasing taxes and “fees” by over $1Billion, imposing excessively restrictive oil & gas industry regulations, and (unconstitutionally) repealing spending limits (putting Colorado onto a dangerous fiscal path, akin to California).  Penry also criticized Ritter’s acquiescence to legislative attempts to expand in-state tuition to illegals, and roll back the electoral college – initiatives he stated that he, as governor, would strongly oppose.

Penry consciously took a page from Reagan’s book, asking rhetorically “are we better off with Ritter?” He stated that before Ritter took office, Colorado was well off – with a budget surplus, a strong economy, and low unemployment.  Acknowledging national trends, Penry asserted that Ritter made a bad situation worse – with Colorado unemployment at a 65-year high, energy production in a tailspin, and a litany of new taxes and “fees” burdening all businesses and individuals in the state.

Penry repeated the old joke that “a recession is when your neighbor loses his job; a depression is when you lose your job; a recovery is when Bill Ritter loses his job.”

Penry stated that “the tide is turning” – representing a strong opportunity for the GOP, IF it can describe and advocate principles that resonate with an aroused and attentive electorate.  Penry pledged to “restore fiscal accountability” with a “limited, focused, disciplined government.”  He called for government to “work better and smarter” by improving accountability and transparency, improving the budget process (to include a “rainy day” fund), consolidating agencies and the bureaucracy, raising school standards and increasing choice in education, and ending the unionization of public employees (he stated that he would rescind Ritter’s executive order “on the first day”).

Penry stated his vision for the governor’s job: echoing Dan Maes, to “create the environment for job creation and business incentives”; ensure that Colorado is a “low-tax” state; phase out the business personal property tax; invest in infrastructure “as revenue allows”; and promote an “all-of-the-above” energy policy, while “excusing” anti-drilling bureaucrats from power.

Penry closed by stating that “the road to recovery rests on principles; we need to provide a compelling case on how we would govern.”

The candidate presentations were followed by a Question and Answer session.  Questioners were drawn exclusively from the ranks of CFRW convention attendees, as the event (despite a report otherwise in the local media) was NOT intended to be fully open to the public, which caused a bit of a kerfluffle (members of the public who showed up WERE allowed to observe the event, but had no access to seating, a fact which caused several to leave the event in disappointment).

A number of questions raised “social conservative” issues of “gay marriage” and the “homosexual agenda”.  All three candidates confirmed their support for traditional marriage, but all three also emphasized that it was NOT a key issue in the campaign – instead, “it’s the economy.”  Penry stated that he’s “young, but old-fashioned” in defending marriage but “we must not fall into the trap of being the finger-wagging party.”  Maes stated that as a “man of faith” he would block further advances of the agenda, but “we need all hands on deck; I don’t care about gender, race, orientation, etc. – we need to keep the bedroom out of the picture.”  McInnis agreed that marriage is “between a man and woman” – but “our focus better not be on those kinds of issues”, rather should instead be on “getting jobs.”

One questioner – self-identified as a “3^rd Vice-President” of CFRW – criticized the use of the terms “lawyer”, “lobbyist”, and “politician” and demanded a pledge to “not criticize rivals” and “deal only with issues” before haranguing Maes, stating “you haven’t any experience.”  Maes countered that his experience as an executive was in fact relevant to the executive office of governor, and stated that his opening remarks referencing the terms were reflecting the statements and perspectives of audiences “who don’t want business – and people – as usual.”  McInnis pledged no criticism of rivals, and stated that “public service is a very honorable profession.”  Penry agreed on the need to avoid name-calling, but emphasized the need for spirited debate – about the type of party, image, and direction the GOP should represent to voters.  He noted that “experience isn’t everything” – “there’s LOTS of experience in D.C. – some Senators with decades of experience – and look where it’s gotten us.”

Other questions addressed the power of unions, and the need to attract foreign investment.  Penry acknowledged an uphill battle for the GOP against an organized union ground game and unfriendly media (“no whining – it’s reality, deal with it”) and stated that just trying the same things, with the same people (mentioning McCain) against this reality is NOT working – that the GOP needs a strong message of conservative reform, advocating weighty topics and principles.  McInnis countered by saying “don’t throw McCain under the bus – he’s still a Senator, and has many accomplishments.” He criticized debates as “tackling the other guy” and destroying opponents, calling again for unity: “let’s come up as a party, and we can win.”  Regarding unions, McInnis stated that he would also immediately rescind the Ritter order unionizing public employees, but called for “keeping the labor peace” in the state that had existed prior to the order – we had a situation that worked.  Maes made it unanimous on rescinding the Ritter order, and stated that the key issue to dealing with unions was creating a good business environment – “they won’t need unions in a business that’s well-run.”  Regarding foreign investment,  McInnis stated that “promotion of Colorado is the key to economic well-being.” Maes stated the need to be proactive and reach out – the governor is “top salesman of the state” – while staying “an attractive place to do business” by protecting TABOR and maintaining low taxes. Penry agreed with Maes that high taxes and spending drives away business (citing California generally, and Frontier Airlines specifically) while adding the need for good infrastructure and a “well-trained workforce.”

 Following the gubernatorial candidates, Matt Arnold of Clear The Bench Colorado addressed the audience on the OTHER top-level statewide vote in 2010: retention elections for the Colorado Supreme Court.  Arnold reminded the audience that there is a 3^rd branch of government, the judiciary – of equal importance and stature to the legislative and executive branches.  He noted that Colorado does not elect judges to the bench, and because of that fact, many – including the Mullarkey Majority on Colorado’s Supreme Court – have come to believe that they are unaccountable.  They are NOT, as he reminded the audience – even Supreme Court justices in Colorado must receive approval from the people in retention elections (for the Supreme Court, every 10 years) in order to stay in office.

“DON’T GIVE IT TO THEM“, Arnold exhorted.  The four justices due for a retention vote in 2010 – Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey – “do not deserve to be retained in office” due to repeated and blatant violations of their oath to support and defend the Constitution.  Arnold asserted that the Mullarkey Court’s unconstitutional rulings were too numerous to list in their entirety, but cited four “core” cases as more than sufficient justification for a “NO” vote.

First, the “Mill Levy Tax Freeze” case, which not only sanctioned a law resulting in an unconstitutional increase in property taxes.  Also buried in the ruling – which was briefed to the Joint Budget Committee on April 1st – was language effectively eliminating previous constitutional protections for a large list of several existing tax credits and exemptions.  It was literally hours after the ruling that a new tax proposal – which eventually became HB1342, the Tobacco Tax increase – was proposed.

Arnold joked that when he heard about the JBC brief the following day, he at first “thought it was an April Fool’s joke” before continuing that “the joke was on Colorado citizens – and the punchline is likely to be replayed, over and over, next session as the legislature attempts to “balance the budget” by eliminating existing tax credits and exemptions – targeting unpopular constituencies one by one to squeeze revenue wherever possible.

The second case Arnold cited was what he called the “November Surprise” – a ruling handed down on November 3^rd 2008 (the day before national elections) with “far-reaching implications” because the case effectively eliminated the distinction between taxes and “fees” for the purpose of revenue collection – while maintaining the TABOR loophole allowing “fees” to be imposed without a vote of the people.  He noted that the “veritable explosion” of new fees – such as the Colorado Car Tax, the quadrupling of the marriage fee, proposed new “fees” on gun sales, etc. etc. – ALL derived from this ruling.

Arnold then “broke for a joke” in the middle of his presentation with a classic “good news, bad news” line:  “the good news”, he said, “is that the Colorado legislature will most likely not pass any new taxes next session.  The bad news?  They won’t have to – they’ll just call it a “fee”, a “freeze”, or eliminate an existing tax credit or exemption.  Unfortunately,” he concluded, “your wallet won’t be able to tell the difference.”

The 3^rd case Arnold cited was the “Telluride Land Grab” – an example of eminent domain abuse in which the town of Telluride was able to seize property – outside its jurisdiction – and despite statute intended to rein in just such abuses, because the Mullarkey Majority simply stated that the laws “didn’t apply” to Telluride, as a “home rule municipality.  The result: ANY “home rule municipality” anywhere in the state can condemn and seize property anywhere, not bounded by location.  As Arnold said, if you’re a property owner – or even live anywhere in the state – “be afraid, be very afraid.”

The 4^th and final case Arnold cited – highlighting its political importance in light of the upcoming census and subsequent redistricting – was the 2003 “Salazar v. Davidson” case in which the Colorado Supreme Court usurped the General Assembly’s constitutional authority to draw congressional districts – a situation that, Arnold asserted, would likely be repeated if the same justices remain in power.

Arnold concluded by stating that “we are witnessing a slow-motion coup d’etat” – a power grab – by the Mullarkey Majority of the Colorado Supreme Court, as it asserts its power to “be the ultimate decider on ALL political questions facing the state” while vastly exceeding its constitutional authority.  (Arnold also noted the decision earlier in the week by the Mullarkey Court to empower judges to decide on school funding levels – instead of elected legislators or school boards).  Arnold exhorted the audience to hold these “unjust justices” accountable by voting “NO” in retention elections in November 2010, and meanwhile to support Clear The Bench Colorado by spreading the word and contributing to the organization (or campaign, or “movement”, as he called it).

All in all, some very illuminating presentations by all of Colorado’s “leading lights” at the CFRW forum this last Saturday.