Choose Your Judges

Tax Revolt in Colorado Reaches the Supreme Court Elections

February 20th, 2013

Colorado has joined Illinois and Iowa as states where conservatives have launched campaigns to oust sitting Supreme Court Judges in a retention election. In Iowa, the issue is the Court’s pro-gay marriage ruling in 2009. In Illinois, conservatives are angered by the Chief Justice’s allegedly anti-business rulings in personal injury cases.

What is the complaint in Colorado? According to Clear the Bench Colorado, the issue is taxes. Under Colorado law, many new taxes or tax increases must be approved by the voters. Since this approval is famously hard to get, and since state governments have been in fiscal crisis, many states have found creative ways to raise income without having to get voters’ approval. In Colorado’s case, the legislature was able to raise “fees” instead of “taxes,” and was able to insert an “escalator” clause into property taxes, so that taxes would rise as property values rose. When the Supreme Court refused to strike down these revenue-raising strategies, the movement to “clear the bench” began. The group claims that the Supreme Court’s rulings on these issues are “unconstitutional” (Of course, once the Supreme Court approves a certain law, the law is—by definition—constitutional, because the Supreme Court has the final word on the matter. What the group really means to say is that it disagrees with how the Supreme Court has interpreted the state constitution).

Clear the Bench Colorado not only attacks the judges it wants to remove from the bench, but also the state bar’s method of evaluating judges. Their website notes that the Colorado Commission on Judicial Performance Evaluations has always recommended that voters retain Supreme Court Justices, complaining that “[e]ven Fidel Castro and the late Saddam Hussein didn’t receive that level of “retain” votes!” As we have pointed out elsewhere on this website, the high level of positive recommendations from state bar commissions is certainly not unique to Colorado—judicial performance evaluations frequently result in a 99% or 100% “retain” recommendation.

In response, Clear the Bench offers its own “evaluations”, which are little more than a repetition of the organization’s ideology—all three Justices deserve a “no” vote because of their “unconstitutional” ruling regarding taxes and various other rulings. These types of “performance evaluations” are in reality no more useful than the rubber-stamp evaluations that the group criticizes, since they can only provide useful guidance to voters who agree with the group’s underlying ideology. (For more information on what voters should take into consideration when electing judges, see our commentary on judicial election evaluations.

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