April 21, 2019

Colorado Supreme Court: Unqualified Candidate Legally Elected Because She Received the Most Votes

The Colorado Supreme Court issued its opinion in Figueroa v. Speers on Monday, March 2, 2015.

Election Law—Candidate Elected But Unqualified to Serve.

In this election contest, the Supreme Court considered whether a candidate in a nonpartisan election was legally elected despite not meeting the residency requirement to serve the position, and if not, whether her only opponent was thereby legally elected. The Court held that the unqualified candidate was legally elected despite not meeting the residency requirement, because she received the most legal votes and her certification to the ballot was not challenged in court before the end of election day. Consequently, the candidate’s opponent was not legally elected. Because the candidate who was legally elected is not qualified to serve in the office for which she was elected, the Court upheld the trial court’s declaration of a vacancy in the contested office. The district court’s judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Attorney General Candidates Debate at CBA-CLE Offices

AG DebateOn Monday, October 6, 2014, the Colorado Bar Association, along with the Asian Pacific American Bar Association, Colorado GLBT Bar Association, Colorado Hispanic Bar Association, Colorado Women’s Bar Association, and Sam Cary Bar Association sponsored a debate of three candidates for Colorado Attorney General. The debate was moderated by Denver Post political columnist Fred Brown. The candidates included Republican Cynthia Coffman, Democrat Don Quick, and Libertarian David Williams. Each candidate was given an opportunity to introduce themselves and then respond to questions posed by each of the sponsoring bars, the audience, and each other. After two hours of lively discussion and debating, the debate ended, but the candidates and attendees stuck around for more talk with appetizers and sodas hosted by the CBA. More than 120 attendees enjoyed the free event held at the CBA-CLE offices.  A live webcast was also offered for those unable to attend in person.

Law Day 2014: American Democracy and the Rule of Law — Why Every Vote Matters

ChrisBryanIn honor of Law Day, this article will be circulated to all local bar leaders. We encourage you to distribute it to your local media and any other interested parties as well.

By Christopher Bryan

Colorado, like the rest of the United States, celebrates Law Day on May 1. The American Bar Association has designated today as Law Day to draw attention to facets of our justice system and constitutional form of government. The 2014 theme is “American Democracy and the Rule of Law: Why Every Vote Matters.”

Here in Aspen and the Roaring Fork Valley, and in western Colorado generally, we know first-hand the importance of every single vote. Small towns—whether in Colorado’s resort communities or in more rural areas—have had numerous elections decided by a few votes or even a single vote. We know that voter turnout matters not only to determine who our elected leaders will be but also because a highly engaged citizenry that votes and participates in representative democracy means stronger communities, more robust ideas, and, ultimately, a better future for everyone.

Protecting citizens’ right to vote and ensuring eligible voters’ universal access to the ballot are among the most important tasks of our legal system, and they are tasks that many people in our community are involved with—from city staff, county clerks, and elected officials, to the election commissioners, poll watchers, and election judges who volunteer their time to ensure proper elections. Watchdog organizations, lawyers’ committees, and civil liberties groups are also important in ensuring legal access to the ballot for everyone, including minorities and under-served populations, and for the orderly administration of processing elections. And, of course, everything depends on voters being well-informed about candidates and issues they vote on, and going to the polls or mailing in their filled-out ballots on time.

So that “every vote matters,” we must be vigilant in ensuring that the “rule of law” remains intact. In Aspen, in Colorado, and throughout the United States, the “rule of law” depends on an intelligent, independent judiciary that safeguards the rights of everyone and applies the law equally. Every schoolchild knows that the judicial branch is a co-equal branch of government in our three-part system of checks and balances. But Law Day is a particularly appropriate day to recognize the difficult and important role that judges serve in our society.

The federal district, bankruptcy, and appellate judges and magistrates who serve Colorado are an impressive bunch: smart, even-tempered, scrupulous, respectful of the truth, and fair to all sides. Under Article III of the Constitution, federal judges appointed to district court and appellate court judgeships are nominated by the President and confirmed by the Senate; they enjoy lifetime appointments, ended only by impeachment, resignation, or death. Bankruptcy court judges and magistrates are appointed for time-determined terms. Unlike many federal districts throughout the country, Colorado is lucky to have a highly functional federal judiciary with no vacant judgeships, which slow down the administration of justice for everyone.

Our state court judges deserve special mention, for they are the ones who most people in Colorado encounter when they are summoned to jury duty, appear at a hearing to testify, or attend trial as a party. The county, district, and appellate state court judges in Colorado work incredibly hard, day in and day out, with dedicated but over-stretched support staff members, limited resources, and ever-expanding civil and criminal dockets. Our state court judges are the ones who decide every legal matter brought in state court: probate, family law and divorce cases, drunk driving, domestic abuse, sexual assault, violent crimes, theft, fraud, property fights, municipal and water matters, business disputes, and civil litigation, among many others. By definition, our state court judges must be highly knowledgeable in all areas of the law; be proficient in the rules of evidence and procedure; be able to discern untruthful testimony, pick apart attorneys’ arguments; make litigants, jurors, and lay witnesses feel at ease; and maintain decorum in a sometimes seemingly chaotic courtroom.

In Colorado, we have an appointment/retention system for placing judges. A judicial nominating commission (consisting of several lawyers and even more non-lawyers) from each judicial district interviews and vets applicants for district court judgeships. The commission then nominates three finalists to the governor, who conducts his own review process. The governor appoints a judge to a provisional two-year term. Thereafter, the judge stands for retention by the voters for an additional six-year term. County court judges stand for retention every four years. Judges standing for retention are thoroughly reviewed and scrutinized by a local judicial performance commission, whose members vote for or against retention. This process avoids lifetime appointments and allows voters to remove ill-behaving or under-performing judges but does not subject our judges to the indignities of judicial elections and ensures steadiness in the judiciary by avoiding high turnover.

Some states elect judges, which politicizes the judiciary. In judicial-election states, candidates for judgeships have to “run” against one another, raise money from lawyers and special interest groups, and serve under the common impression that their rulings reward their benefactors. Other states impose strict term limits on judges, robbing their citizens of experienced judges who often are at their very best toward the end of their judicial career.

In the Ninth Judicial District, encompassing Pitkin, Garfield, and Rio Blanco counties, we are lucky to have exemplary judges. Our county court judges are perhaps the most visible, as they process a high number of misdemeanor criminal cases each year and hear hundreds of small claims and county court civil cases. Our five district court judges—Chief Judge Boyd, Judge Petre, Judge Lynch, Judge Nichols, and Judge Neiley—are all popular, diligent, thoughtful judges with sharp intellects and commensurate work ethics. They have been faced with one of the busiest dockets in Colorado, and the counties they represent are among the fastest growing in population. Their jobs are among the most difficult anywhere, and they have earned the right to be called “Your Honor.”

On this Law Day, take a moment to be thankful that we live in a nation where “every vote matters,” where the “rule of law” governs. Be glad you live in a state where judges serve the public interest. Be proud that you live in a community with judges who treat everyone with dignity, respect, fairness, and equality.

Chris Bryan is an Aspen attorney and the president of the Pitkin County Bar Association. 

Governor Hickenlooper Signed Amendment 64 Proclamation – Marijuana Legal in Colorado for Private, Personal Use

On Monday, December 10, 2012, Governor Hickenlooper signed an Executive Order that formalizes Amendment 64 as part of the Colorado Constitution. The Executive Order makes legal personal use and possession of small quantities of marijuana, as well as limited home-growing. It is still illegal to buy or sell marijuana, use it in public, or use it in a way that endangers others.

In addition to the Executive Order formalizing Amendment 64, Governor Hickenlooper signed another Executive Order to create a task force on the implementation of Amendment 64. The task force will create and enforce a regulatory structure. There will be 24 members of the task force, who were named by the governor in the Executive Order. The task force will be chaird by Jack Finlaw, the governor’s chief legal counsel, and Barbara Brohl, the Executive Director of the Colorado Department of Revenue.

The task force will address many issues related to the continuing regulation of marijuana, such as amending current laws regarding marijuana possession, sale, and distribution to reflect its legality; creating laws regarding security and labeling requirements for marijuana establishments; education efforts to address long-term health consequences of marijuana use; and the impact of Amendment 64 on employers and employees. The task force is expected to report back to the governor, the General Assembly, and the Attorney General by February 28, 2013.

The task force will also attempt to reconcile Colorado law with federal law so that the Colorado government and its employees will not be subject to prosecution. Governor Hickenlooper and Attorney General John Suthers wrote a letter to Eric Holder, the United States Attorney General, regarding the federal government’s position on Amendment 64, but the state has not yet received a response. Governor Hickenlooper stressed that he will attempt to retain as much flexibility as possible in order comply with federal laws.

For the governor’s complete press release, click here. To hear a panel discussion about the implications of Amendment 64 for Colorado, come to the live CLE program on December 18.

CLE Program: Marijuana and Hemp Law in Colorado – Amendment 64

This CLE presentation will take place on Tuesday, December 18, at 9:00 a.m. Click here to register or call (303) 860-0608. Can’t make the live program? Click here to register for the webcast.

 

Secretary of State Announces Election Integrity Listening Tour

On Friday, November 30, 2012, Secretary of State Scott Gessler announced that he will conduct five public meetings regarding election integrity and improvement of election performance. Gessler is looking for feedback on the recent elections and soliciting citizen comments on ways to improve.

The first listening stops will be on Wednesday, December 5, 2012. He will be at the Boulder Public Library from 10:00 to 11:30 am and at the South Metro Chamber of Commerce in Arapahoe County from 2:00 to 3:30 pm. On Thursday, December 6, 2012, he will be at Colorado State University – Pueblo from 10:30 am to noon and at the El Paso County Clerk & Recorder’s Office from 2:00 to 3:30 pm. Finally, on Wednesday, December 12, 2012, he will be at the Secretary of State’s Office in Denver and the hearing will be from 1:00 pm to 4:00 pm.

Click here for the official announcement.

Judicial Performance Evaluation Results Released as Voter Tool in Judicial Races

This fall, judges are running in contestable elections in 32 states and standing in yes/no retention elections in 17 states. Judicial elections are typically low-information contests, where voters may cast their ballots based on party affiliation, name recognition, or ballot position rather than on qualifications and experience.

But in a handful of states, voters will have the benefit of broad-based and objective evaluations of incumbent judges’ performance on the bench and, in one state, of the judicial potential of their challengers. These states include Alaska, Arizona, Colorado, Missouri, New Mexico, North Carolina, and Utah.

Each of these states has a judicial performance evaluation program, through which court users assess the legal ability, impartiality, temperament, and communication skills of the judges with whom they have interacted. Results of these surveys of court users are summarized and shared with voters, often in conjunction with objective data (e.g., reversal rates, case management statistics) and a voting recommendation.

Two recent polls highlight the need for readily available, nonpartisan information about judges running for reelection or standing for retention. In Indiana, where appellate judges and some trial judges stand for retention, a 2011 poll found that nearly one-third of respondents do not vote regularly in judicial elections, and the most common reason given for not always voting on judges is a lack of useful information. When asked whether they would find public performance evaluations helpful, two-thirds said it would be of great or some value.

Similarly, a 2012 voter poll in Minnesota—where judges run in contestable, nonpartisan elections—found that three-fourths of respondents would support the creation of a balanced public performance evaluation commission that would review judges’ performance and publish evaluation results.

“These polling results demonstrate that voters need more information to make informed decisions about the judges appearing on their ballots,” said Dr. Malia Reddick, director of the IAALS Quality Judges Initiative. “Judicial performance evaluation programs fill this void.”

“For more than three decades, the American Judicature Society has supported the use of judicial performance evaluation programs as a valuable informational tool for voters in judicial retention elections,” said AJS Executive Director Seth S. Andersen. “Surveys and exit polling demonstrate that voters use JPE results to make better-informed decisions on judges standing for retention. The key is to ensure that evaluation results are disseminated widely and are readily available to voters.”

“To be fair and impartial, judges must be protected from special interest and partisan influence while remaining accountable to the law and constitution,” said Bert Brandenburg, Executive Director of Justice at Stake. “By focusing on competence instead of ideology, JPE’s enable the public to choose fair, high-quality judges.”

Alli Gerkman is Director of Communications for IAALS, the Institute for the Advancement of the American Legal System at the University of Denver. IAALS is a national, independent research center dedicated to continuous improvement of the process and culture of the civil justice system. This post originally appeared on IAALS Online, the IAALS blog.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Beat the Crowds on Election Day—Early Voting and Mail-In Ballots

It may seem distant now, but last year at this time the election focus was on Egypt and the elections in that country. Citizens lined up in very long queues to have the opportunity to vote for their leader. The images are striking, representing the sanctity of choice and election.

In this country, we do not usually have to wait in lines longer than city blocks in order to cast our votes. Poll centers are conveniently located, and we even have early voting and mail-in ballots. Still, there are frequently lines on Election Day, some that may seem interminable.

If you would prefer to avoid the lines on Election Day, there are some excellent options. Early voting locations are scattered throughout Colorado; click here to find one in your county. You can find your Election Day voting location here as well.

Mail-in ballots are another great way to beat the crowds. If you requested a mail-in ballot, you have until 7 p.m. on November 6, 2012 to get it to a drop off center. If you already mailed your ballot in and it has been returned for correction, you can submit your corrected ballot any time up to 7 p.m. on November 6. You can even track the progress of your mail-in ballot at www.govotecolorado.com.

If you are undecided on the ballot issues and would like more information, you can get the official Blue Book 2012 here. Or, for information on judicial retention, go to the Know Your Judge website. Another good website, Just Vote Colorado, provides nonpartisan information and resources. Vote early, vote by mail, vote on Election Day—just vote.

“Know Your Judge” Website a Tool for Colorado Voters in Judicial Races

This November, in addition to executive and legislative candidates, Colorado voters will be deciding whether or not to retain Colorado judges. Under Colorado’s system for selecting and retaining judges, all judges who will appear on the ballot must undergo a performance evaluation, the results of which are provided to the public as a tool for casting an informed retention vote. A website—www.knowyourjudge.com—is helping voters locate this information for the judges who will appear on their ballot.

Know Your Judge directs voters to the information provided by the Colorado Office of Judicial Performance Evaluation, including evaluation results for judges in each county, and court of appeals judges and supreme court justices who appear on ballots statewide. In addition to the evaluation results, which are presented in both narrative and detailed form, there is a recommendation of “retain,” “do not retain,” or “no opinion” for each evaluated judge based on that judge’s performance on the bench. These recommendations are carefully formulated by the Colorado Commissions on Judicial Performance, based on comprehensive data collected as part of the evaluation process.

Official judicial performance evaluation programs have been established in 17 states and the District of Columbia, and in seven of these states performance evaluation results are provided to voters for use in retention elections. The broad-based and objective performance information collected by these programs is particularly important given the growing number of anti-retention efforts against state court judges on the basis of individual rulings with which special interests may disagree. In both Iowa and Florida this election cycle, state supreme court justices standing for retention are facing anti-retention campaigns on the basis of a particular court decision. In Iowa, a similar effort in 2010 was successful in unseating the three supreme court justices standing for retention that year. Neither Iowa nor Florida has an official JPE program for the benefit of voters.

The Know Your Judge website was developed in 2010 to help draw attention to this resource for voters, and to provide Colorado citizens with information about how their judges are selected, evaluated, and retained. In a 2010 post-election poll, judicial performance evaluations were the most commonly mentioned source of information about Colorado judges, and more than 4 in 10 Coloradoans who visited the Know Your Judge website found it helpful in making their voting decisions.

The effort is sponsored by the Colorado Bar Association, in partnership with the Colorado Judicial Institute, the League of Women Voters® of Colorado Education Fund, and IAALS, the Institute for the Advancement of the American Legal System at the University of Denver.

Alli Gerkman is Director of Communications for IAALS, the Institute for the Advancement of the American Legal System at the University of Denver. IAALS is a national, independent research center dedicated to continuous improvement of the process and culture of the civil justice system. This post originally appeared on IAALS Online, the IAALS blog.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Judicial Performance Evaluations Now Available Online for 2012 Election

The State Commission on Judicial Performance and local judicial district performance commissions have completed their evaluations of 90 judges who are scheduled to stand for retention in the November 6, 2012, election.  The non-partisan commissions are charged with providing voters with fair, responsible, and constructive evaluations of individual judges seeking retention, and providing judges with useful information concerning their performance.  The evaluations were made public online on August 7 and will be printed in the Blue Book, which is mailed to every active registered voter household in the state.

The judicial performance commissions evaluate judges on a wide range of criteria, including integrity, legal knowledge, communication skills, judicial temperament, and administrative performance.  To do this, commissions review information from several sources:  written opinions and decisions, caseload statistics, interviews, courtroom observations, judges’ self-evaluations, and independent surveys.   Earlier this year, surveys were sent to more than 50,000 people who have had recent involvement with the judges, including prosecutors, public defenders, and private attorneys, litigants, jurors, crime victims, law enforcement officers, court employees, court interpreters, and probation officers. The results of interim survey results from past years are also reviewed.

The commissions then produce a narrative for each judge with a recommendation of “retain,” “do not retain,” or “no opinion,” which are included in the “Blue Books” published by the Legislative Council.  The Blue Book is an informational booklet which provides voters with an analysis and arguments for and against every statewide ballot measure and also includes the evaluations of the judges standing for retention. The narrative, recommendation, and complete statistical survey results are now available on the Office of Judicial Performance Evaluation website and can be viewed here.

The volunteer members are appointed by the Colorado Chief Justice, Governor, President of the Senate, and Speaker of the House.  Each commission consists of 10 members:  six non-attorneys and four attorneys.

SB 12-135: Requiring Secretary of State to Establish an Online System for Posting Election Results

On January 31, 2012, Sen. Kevin Lundberg and Rep. Carole Murray introduced SB 12-135 – Concerning the Development of an On-Line Program to Which the Secretary  of State Posts Election Returns by the Evenings of Specified Election Days and, In Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill directs the Secretary of State to develop an on-line program for the posting of election returns on election night. Such postings are required for all statewide elections, commencing with the 2012 primary election. To implement the program, upon passage of the bill, $776,460 is appropriated to the department of state from the department of state cash fund. On February 13, the State, Veterans & Military Affairs referred the unamended bill to the Appropriations Committee for consideration of the fiscal impact to the state.

Summaries of other featured bills can be found here.

The Colorado Reform Roundtable, the Colorado Bar Association, and the Statement of Agreement (Part 2)

Editor’s Note: This is the second part of a two-part article on the Colorado Reform Roundtable and the proposed Statement of Agreement. Part 1 can be read here.

III. THE SPIRALING FINANCIAL CRISIS

To put the status of the current fiscal crisis in perspective, it is helpful to compare Colorado’s funding of various government services with the funding provided in other states.  According to census data compiled by the nonprofit Colorado Fiscal Policy Institute, as of 2008, the most recent data available, Colorado ranked 47th out of 50 states in total state spending per $1,000 of income.  Colorado was approximately $4.89 billion behind what it would take to move to the U.S. average in terms of investment in critical public services.  More specifically, measured again per $1,000 of income, Colorado in 2008 ranked 48th for investment in public education; 49th in covering families under Medicaid; 48th for higher education; and 48th for transportation and highways.

The CBA is of course more focused on funding for our state courts.  Colorado has fared little better, ranking 41st out of the 50 states per $1,000 of income in funding for its judiciary.

Funding must of course be viewed in the context of demand for services.  Looking back over the last decade, total district court filings have increased 55%, but district court civil filings have increased 221%.  Adjusted for inflation, judicial funding from the General Fund during this time has increased 29%.  The funding gap has been addressed in part by increasing the cost of access to justice.  Adjusted for inflation, cash funding, such as filing fees and attorney license fees, has increased 114%.  In other words, the cost of access to justice is being placed more and more on those in need of that access.

The Interim Long-Term Fiscal Stability Commission in 2009 issued a Final Report to the General Assembly.  It included a brief discussion of the judiciary.  It noted that the judicial branch needed $46 million additional dollars over its current funding to restore the cuts that had been made to the department and address the current backlog in cases.

The bigger concern, however, is not the past, or even the present, but the future.  Federal stimulus funds have ended.  As noted in an editorial in the Denver Post on October 16, 2011:  “Changes that would unravel incompatible fiscal directives in the state constitution are desperately needed, as are long-term stable revenue sources that would support core state missions . . .”

More recently, the CRR conveners have been analyzing the work of the DU Center for Colorado’s Economic Future.  The Center was created as part of the recommendations of the Colorado Economic Futures Panel.  The Panel in turn had been created by the University of Denver to examine the fiscal health of Colorado’s state and local governments and their ability to sustain fundamental public investments appropriate to Colorado’s long-term economic vitality.  The DU Center provides nonpartisan information and analysis of issues impacting the economic future of Colorado.

The Colorado legislature, pursuant to Senate Concurrent Resolution 10-002, had asked the DU Center to conduct a comprehensive review of the state government’s revenue system.  The review was conducted in two phases.  The Phase 1 Report, issued in April 2011, noted that although the state’s short-term budget problems continue to be daunting, the study was focused on Colorado’s long-term fiscal situation – the forces that will drive both revenue productivity and state government out to the year 2025 and beyond.  The objective was to “determine whether the state’s financial problems are simply a reflection of a contracting economy (a cyclical problem), a harbinger of longer-term imbalances (a structural problem), or both.”

The Phase I report concluded that the state’s budgetary woes are both cyclical and structural.  When the economy improves, tax collections will pick up.  Absent major changes in policy, however, a structural imbalance underlying the fiscal workings of state government will ensure that Colorado’s budget problems persist for many years to come.   “Even a strong recovery and sustained job growth over the next decade and a half will not produce enough income and sales tax revenue to afford Colorado’s share of Medicaid funding and the state’s payment for public schools under current constitutional and statutory provisions. Together with the rising (although more stable than in the past) cost of the state’s prison system, the two biggest programs in the state General Fund will continue to crowd out higher education and other programs competing for the same tax dollars.”  The report concluded:  “We find that our current General Fund financing system is in persistent, long-term structural imbalance. The sooner structural changes are undertaken, the less drastic these changes need be.”

In September 2011 The Center released its Phase 2 report.  It lays out options for addressing “a long-term structural imbalance between General Fund revenues and expenditures.”  A Summary of Phase 2 Findings begins as follows:  “Twelve years from now, Colorado will generate only enough sales, income and other general-purpose tax revenue to pay for the three largest programs in the General Fund – public schools, health care and prisons. There will be no tax revenue for public colleges and universities, no money for the state court system, nothing for child-protection services, nothing for youth corrections, nothing for state crime labs and nothing for other core services of state government.”  (Emphasis added.)

The DU Center’s conclusion:  “The enormity of this gap suggests that Coloradans consider both tax increases and spending cuts to fill it. Cutting programs to match revenues, without changing the structure of the current tax system, is unrealistic. While this study did not specifically examine how expenditures for each department could be trimmed, the degree of cuts necessary to rectify the structural imbalance likely prohibits an all-cuts solution.”

IV. THE CRR STATEMENT OF AGREEMENT

Having considered the Phase 1 and 2 reports and other similar information developed by groups like the Colorado Fiscal Policy Institute and the Bell Policy Center, the representatives of the conveners of CRR have drafted a “Statement of Agreement.”  They are requesting that the representatives of the CRR members present the Statement to their governing bodies for consideration and, if deemed appropriate, for approval.  The conveners’ purpose is to determine if there is a consensus among CRR members about the structural nature of the state’s fiscal crisis and, if not, why not.

The Statement provides in pertinent part, consistent with the conclusions in the DU Center Reports, that the imbalance between revenues and costs of services is in part structural and that additional revenue is needed to provide adequate and stable support for our essential public systems in the future.  The Statement recognizes the continuing need to scrutinize expenditures, assess priorities, explore new strategies, and insist on frugal and efficient government.

The Statement of Agreement does not endorse any particular approach to addressing the structural imbalance in revenues and costs.  Some have questioned why the Statement, unlike the DU Center Reports, suggests no blue print for the future.  The answer is that the modest goal for the Statement is merely to recognize that a structural problem exists and to commit to work together to build consensus around a solution.  It is early in the process, but several members of the alliance have already signed the Statement, including Colorado League of Women Voters, Colorado Nonprofit Association, Bell Policy Center, CAPE Retirees, Colorado Children’s Campaign, Great Education Colorado, Colorado Association of School Executives, Colorado Center on Law and Policy, and Colorado Community Health Network.

V.  CONCLUSION

As demonstrated by the DU Center study, in twelve years not only will there be insufficient funding for our courts, there will be no funding available from our General Fund.  Adequate financial support for our state courts is an essential component of providing our citizens their constitutional right of access to justice.  The Colorado Bar Association has been a leader in understanding and responding to the need for an adequately funded, independent judiciary.  The Colorado Reform Roundtable’s Statement of Agreement provides a small but critical next step on that path of leadership.

Judge Steve C. Briggs (Retired) is the Colorado Bar Association Representative on the Colorado Reform Roundtable.

The Colorado Reform Roundtable, the Colorado Bar Association, and the Fiscal Crisis Facing the Colorado Judicial System (Part 1)

Editor’s Note: This is the first part of a two-part article on the Colorado Reform Roundtable and the proposed Statement of Agreement. Part 2 can be read here.

I. INTRODUCTION

The Colorado Bar Association in February 2010 appointed a representative to the Colorado Reform Roundtable (CRR).  As described in a Denver Post article in October 2009, CRR is a “loose alliance founded by 10 organizations representing business, labor and nonprofit groups, [which] resembles the coalition that helped pass Referendum C in 2005.”  The ten founding “conveners” of CRR were the Denver Metro Chamber of Commerce, Colorado Forum, Club 20, Bell Policy Center, Colorado Concern, Colorado’s Future, the Colorado Fiscal Policy Institute, the Colorado Education Association, Colorado WINS, and the Service Employees International Union.  CRR was formed to address the fiscal and constitutional challenges facing Colorado government.

The conveners of CRR are requesting that the members of the alliance respond to a proposed Statement of Agreement.  The Statement addresses the sources of the worsening imbalance between revenues and costs for essential public systems, which includes our judicial system.

This article will summarize why the CBA became involved with CRR, beginning with the CBA’s involvement in similar endeavors in the last few years; describe some of CRR’s activities to date; provide an overview of the status of Colorado’s current and worsening fiscal crisis, with a focus on our Colorado judicial system; and conclude with a discussion of the current CRR request to its members.

II. CBA INVOLVEMENT IN COLORADO’S FISCAL AND CONSTITUTIONAL CHALLENGES

As stated in the CBA bylaws, the objects of the CBA include securing the more efficient administration of justice and encouraging the adoption of proper legislation.  At the meeting of the Board of Governors in February 2004, the funding crisis in Colorado government was a topic of concern because of the impact on our state courts.  Wade Buchanan, President of the Bell Policy Center, presented information about initiatives that were being drafted to address some of the unanticipated problems created by TABOR, the so-called Taxpayers’ Bill of Rights.

Following that meeting, the CBA Executive Council adopted a resolution in support of the proposed Economic Recovery Act.  The proposed ballot initiative would amend TABOR and allow more revenues to be generated and retained.  For political reasons the campaign did not go forward at that time.

The following year, however, a bipartisan coalition was formed to campaign for the passage of Referenda C and D.  Referendum C would suspend the TABOR revenue limits through 2010 and end its downward ratchet effect on the budgets.  The CBA supported the campaign on the basis that, even though the proposed amendment of TABOR would direct the additional funds to government functions other than the courts, the remaining funds would be freed up to assist in part with the judicial funding crisis.  In the 2005 election Referendum D was defeated, but Referendum C passed.  As expected, in the next fiscal year more funds were made available for funding the courts.

Over the next few years, however, an economic downturn worsened the state funding crisis, including funding for the courts.  In addition, the relief from the TABOR revenue limits provided by Referendum C was to expire at the end of fiscal year 2009-2010.  Without further action, the revenue limits would again cap any additional funds that an economic recovery might generate.  As a result, the CBA in 2008 supported Amendment 59, known as “SAFE.”  Amendment 59 would have provided permanent relief from the TABOR revenue limits by permitting Colorado to use funds which would otherwise have been refunded to taxpayers to fund a savings account for education.  The expected result again was that the use of the excess funds for education would relieve pressure to cut funding for other purposes, including the Colorado courts.  Amendment 59 did not pass.

During the same time, tension among several of the ballot initiated constitutional provisions, such as TABOR, Gallagher, and Amendment 23, was contributing to the fiscal crisis.  It was becoming apparent that any long term solution to the fiscal crisis needed to include a revision to the state constitution to make it more difficult to amend the constitution with ballot initiatives requiring only a simple majority vote.   In 2008 the Executive Council therefore also voted to support Referendum O, a ballot initiative to make it more difficult to amend the state constitution while making it easier to enact statutes.  Referendum O likewise did not pass.  Similar legislative referenda died on the last day of the next two legislative sessions.

The economic downturn continued.  In addition, three new ballot initiatives, commonly known as Amendments 60 and 61 and Proposition 101, were submitted for the 2010 election.  If passed by a simple majority vote, their combined impact would have been debilitating on the functioning of state government, including the judiciary.  Because the purpose of CRR is to seek nonpartisan solutions to these continuing fiscal and constitutional challenges, the CBA authorized a representative to participate with CRR, but not to take any action without CBA approval.  With the help of an expensive educational campaign, which the CBA supported, those three initiatives were defeated.  In the meantime, however, the five-year timeout from the TABOR limit provided by Referendum C expired.

Judge Steve C. Briggs (Retired) is the Colorado Bar Association Representative on the Colorado Reform Roundtable.