Still No News On Local Control Special Session Deal

Photo courtesy Rep. Jared Polis

Photo courtesy Rep. Jared Polis

The Colorado Independent's John Tomasic reports on what's known, as of today, about the state of negotiations over local control legislation to forestall oil and gas local regulation measures being readied for this November's statewide ballot. The latest news is…no news:

Draft legislation shopped around this weekend that seeks to clarify powers held by state, county and city authorities in Colorado to regulate oil-and-gas drilling has not won full support by the main negotiating parties, and so a special legislative session tentatively scheduled to begin today in Denver has been postponed.

Officials have said for some time that they hoped to make a deal in June. Governor John Hickenlooper weeks ago asked lawmakers to clear their schedules for the beginning of this week. That Friday’s proposal failed to gain the support it needed to launch the session today seems like a significant setback. Although the governor can call a special session any time, sources have said they want to ink a deal before election-year momentum builds and campaign politics steal progress already made and narrow wiggle room in which to find future compromise.

The draft bill sparked frenzied speculation over the weekend that parties had drawn close to a deal after weeks of stops and starts and that the plan for a special session beginning today was on track.

News this morning that the proposal has so far failed to launch the session will please grassroots groups that have led the movement in the state over the past five years to push back against boom-time natural-gas drilling activity. The groups received the six-page proposal this weekend with frustration and anger.

Rep. Jared Polis, so far the leading backer of any serious effort to pass a local control ballot measure, is reportedly willing to pull his support for the initiatives, if the draft legislation unveiled Friday sees no weakening during legislative debate. Grassroots supporters of greater local control, who aren't happy with the draft legislation, need the support of Polis and/or other well-heeled players to have any realistic shot at winning a statewide ballot fight against what would doubtless be fierce industry opposition. But the reason a special session of the legislature did not convene today is the closely divided body, particularly the Colorado Senate where pro-industry Democrats throw a one-seat majority into doubt, may not be in a position to pass anything.

The question is, would that really be so bad?

It's critical to remember as these negotiations drag on that there is a great deal of public support, as evidenced by the local "fracking" bans and moratoria that have passed in several Front Range residential cities, for strengthening local control over oil and gas drilling. Arguments that a statewide local control ballot measure could hurt Democrats politically are poorly founded and of dubious origin. If the industry and its political allies get cocky, for which the early shrill attacks on Polis betray at least a desire, there's no reason to further try to appease them.

A legislative compromise is the industry's chance to prevent both tighter regulation and humiliation in a statewide vote–and the risk of consequences at the ballot box in November hinges on the industry's willingness to show good faith today. The compromise that Polis says he would accept even as many grassroots activists complain about its weakness is, under the assumption the local control measures can pass in November, as good a deal as the industry is going to get.

If they don't understand that, we say let them learn the hard way.

My Opinion: Colorado PERA Pensioners Expose Deception by PERA Lawyers at the Colorado Supreme Court.

(Note: This is a corrected version of an earlier version of this article in which I mistakenly attributed a comment by Justice Hobbs to Justice Hood.)

For five years now, truly shameless Colorado PERA officials have employed deception in their attempt to take money from elderly pensioners in our state.  In my opinion, the deception continued this week in the chambers of the Colorado Supreme Court.

Why do Colorado PERA administrators, trustees and lawyers feel that they must deceive in order to make their case in Justus v. State?  (A case, it should be noted, that has never gone before a jury for fact-finding.)  Is this a normal and expected appellate strategy?  As a layman, I find it extremely disturbing.

Is it appropriate that Colorado state employees engage in deception in the course of their official duties?  Do we really want Colorado state government to rest on a foundation of deception? 
If Colorado politicians and PERA administrators are successful in their efforts to force Colorado PERA pensioners to payoff accrued state debts will honest Colorado taxpayers be satisfied with the result?  How many Coloradans actually want the State of Colorado to break its contracts?

Whether or not the 2010 Colorado PERA contract breach is ultimately successful, a record of Colorado PERA's attempts at deception must be readily available to the public for posterity.  Colorado voters and future elected officials must have easy access to the record of the SB10-001 taking.  In my opinion, the moral underpinnings of Colorado state government are being written in this bill, SB10-001.  If the State of Colorado can freely abrogate its contracts, all parties contracting with Colorado state government in the future should be fully informed of the fact.

I write this article to set the record straight, and to expose the deception of Colorado PERA officials and certain Colorado politicians.  In the article, I highlight statements made during the June 4, 2014 oral arguments before the Colorado Supreme Court in the Colorado PERA retiree COLA lawsuit, Justus v. State.

If the State of Colorado (one of the wealthiest states in the nation) is indeed facing a financial "crisis" that would justify breach of state contracts, why would the Colorado Supreme Court allow the Executive and Legislative branches of Colorado state government to redress that financial "crisis" by asking retired public sector workers to relinquish their earned benefits, their deferred compensation?  Earned benefits, I might add, that replace Social Security for these retirees.

Why would the Colorado Supreme Court agree to take money from retired workers, yet fail to ask corporations to relinquish any of the billions of dollars worth of unearned, non-contracted tax exemptions and subsidies they regularly receive from the Colorado Legislature?

Why would the Colorado Supreme Court allow the state agency Colorado PERA to avoid paying its contracted annuity COLA payments, but require private sector insurance companies to continue to pay contracted annuity COLA payments?

Here is a link to the June 4, 2014 Colorado Supreme Court Oral Arguments in the Colorado PERA retiree lawsuit, Justus v. State:

An earlier article addressing Colorado PERA's attempts to deceive the Colorado Supreme Court:

Three attorneys who participated in the Colorado Supreme Court oral arguments on June 4, 2014:

Richard Rosenblatt, represented Colorado PERA retirees.  Sean Connelly, represented Colorado PERA, and Colorado Solicitor General Dan Domenico, represented the State of Colorado.  Rosenblatt was up first at the one-hour hearing, followed by Connelly and Domenico.  Richard Rosenblatt concluded the oral arguments with a brief rebuttal.


At 31 minutes into the June 4, 2014 oral arguments Attorney Sean Connelly, representing Colorado PERA, throws what I see as a new PERA deception at the wall to see if it will stick, Sean Connelly's comments:

"If you look at the language of the PERA statute, in 801.1, Section 801.1, of the PERA statutes, says that the monthly benefit is payable for the lifetime of the beneficiary."

"COLAs are instated in Part 10 of the PERA statutes, specifically in Sections 1001, 1002, 1003 and those were the parts that were amended in SB10-001 in 2010."

(My comment: Contrary to Sean Connelly's argument, the statutory language creating the PERA COLA contract and the PERA base benefit is identical . . . both benefits "SHALL" be paid to annuitants.  Colorado PERA's attorneys agree that the PERA statutes create a contract for the PERA base benefit.

Articles of Colorado law are divided into "parts" and "sections."  As plaintiff's attorney Richard Rosenblatt points out in his concluding remarks at the June 4, 2014 oral arguments, Part 8 of the PERA statutes is not the portion of the PERA statutes that creates the contract for the PERA base benefit.  The contract for the base benefit is created in Section 24-51-602, located in Part 6 of the PERA statutes, a Part that is titled "Service Retirement."  Section 602 is titled "Service retirement eligibility," it addresses eligibility for service retirement benefits in the PERA pension plan that are a contractual obligation of PERA and PERA-affiliated employers.  Section 602 provides that: "Members . . . SHALL, upon written application and approval of the board, receive service retirement benefits pursuant to the benefit formula . . ."

This Colorado PERA statutory language creating the PERA "base benefit" contract is identical to the PERA statutory language creating the PERA COLA benefit contract.  Colorado PERA's lawyers would have us and the Colorado Supreme Court believe otherwise.

Part 8 of the PERA statutes (which PERA's lawyers would have the Supreme Court believe creates the PERA base benefit contract) simply implements Part 6 of the PERA statutes.  Part 8 of the PERA statutes addresses "Benefit Options" for payment of the service retirement benefit offered under the PERA pension contract.  The Part 8 payment options for this PERA annuity are: single life, joint life with one-half payable to a cobeneficiary at death of the retiree, and joint life with the same benefit payable to a cobeneficiary at death of the retiree.

Under the PERA statutory construction, Part 8 addressing PERA annuity payout options rightly follows Part 6 which addresses eligibility for the PERA retirement benefit itself.  Section 602 provides that the qualified PERA retiree SHALL receive the base benefit.  Part 8 provides choices for the payout of the benefit.

Why would PERA's lawyers state or imply that the contract for the PERA base pension benefit is created in the section of PERA law that addresses retiree choices for the method of payout of the total contracted PERA benefit, rather than in the section that addresses PERA member eligibility for the PERA annuity itself?  In my opinion, deception.

The provision in Colorado PERA law providing the contracted Colorado PERA 3.5 percent COLA benefit [prior to its retroactive alteration by SB10-001] read:

Colorado Law – Section 24-51-1002 (1), Colorado Revised Statutes, “ . . .the cumulative increase applied to benefits paid SHALL be recalculated annually as of March 1 and SHALL be the total percent derived by multiplying three and one-half percent, compounded annually, times the number of years such benefit has been effective . . .”

Under Colorado law, members of Colorado PERA who purchase PERA service credit SHALL receive Colorado PERA pension benefits in effect at the time of the purchase:

Colorado Law – Section 24-51-502 (3), Colorado Revised Statutes, “Service credit purchased by members . . . SHALL be subject to the benefit provisions in effect for the existing member contribution account.”)

In oral arguments, PERA's lawyers imply that the PERA base benefit contract is formed in Part 8 of the PERA statutes, a Part that addresses options for payment of the PERA base benefit, rather than in Part 6 that establishes the base benefit itself.  I see this as a weak attempt to persuade the Justices that the language creating the PERA base benefit somehow differs from the language creating the COLA contract.  It doesn't, both "shall" be paid under the PERA statutes.

Note that the Defendants in this case agree with Judge Hyatt's ruling (before his retirement) at the District Court.  Note also that Judge Hyatt found that the PERA base benefit contract was formed in Sections 602 and 603 of the PERA statutes rather than in Part 8 as the Defendants now choose to argue before the Supreme Court.  Note that Judge Hyatt made no mention of Part 8 of the PERA statutes relating to annuity payment options when he identified the PERA base benefit as a contractual obligation in his Decision.

Judge Hyatt found that the PERA base benefit contract exists based on the identical language, "shall," that creates the PERA COLA benefit.  Judge Hyatt's position conflicts with the Defendant's latest claim. 

From Judge Hyatt's Decision, June 29, 2011, page 2:

"When a member retires, their monthly base benefit is calculated using the member’s age at retirement, years of service, and their highest average salary (which also has its own calculation). C.R.S. § 24-51-602-603 (2010)."

At approximately 46 minutes into the June 4, 2014 oral arguments, Colorado Solicitor General Dan Domenico repeats what I see as Sean Connelly's earlier attempt to mislead the Colorado Supreme Court to believe that the statutory language creating the PERA base benefit contract differs from the statutory language creating the PERA COLA benefit, Dan Domenico:

"If you compare the language of the base benefit . . . in Parts 6, 7, ad 8 of the PERA statutes, that includes language of entitlement, durational language, this is what you get for life."

"The COLA statutes in Part 10 simply don't.  That language is conspicuously absent from the COLA statutes."

(My comment: Apparently Domenico is not troubled by the fact that this durational language is also "conspicuously absent" from the statute creating the PERA base benefit contract.)

Dan Domenico:

"So, as a matter of statutory interpretation it's simply a different treatment by the Legislature of the cost-of-living benefit versus the base benefit."

(My comment: In my opinion, this statement is glaring, shameless deception of the Colorado Supreme Court. The language is identical.)

Dan Domenico:

"The base benefit is an individualized assessment . . . it's about you and what you have put in, you should get it back."  "The cost-of-living formula is not about you, it's about external economic factors, including inflation and the health of PERA."

(My comment: This Domenico statement is, in my opinion, manufactured from whole cloth.  PERA member contributions support the PERA COLA benefit AND the base benefit.  Colorado PERA's actuaries have incorporated the 3.5 percent COLA into actuarial reporting on the plan.  PERA-affiliated employers do not make a separate contribution to support the PERA COLA benefit.)


Next Dan Domenico makes a statement that betrays either ignorance of PERA's legislative history or more deception in my opinion:

"It would be a very strange system if we had a system that said, well this group of people's cost-of-living should be adjusted differently than this other." 

(My comment: As I listened to this Domenico statement my first thought was that he is ignorant of the legislative history of Colorado PERA pension benefits.  The "very strange system" he objects to is indeed present reality.  It is in current Colorado PERA law. 

Thankfully, the PERA retiree's attorney recognized the lack of knowledge of PERA's legislative history [or deception] and corrected it at the end of the June 4, 2014 oral arguments.

From the Colorado PERA Publication "History of Colorado PERA Legislation":


SB04-132 – new members hired effective 7/1/05, eligible for early retirement [not unreduced retirement] at age 50 with 30 years of service, and the COLA would equal the lesser of 3% annually, or the actual CPI change."

For new PERA members, SB04-132 created a new PERA COLA of the lesser of 3% or inflation, from the 2004 Digest of Bills:

“For any person who becomes a member of the association on or after July 1, 2005, specifies: . . . That the annual increase applied to benefits shall be the lesser of 3% or the increase in the consumer price index.”

From Section 9 of SB 04-132:


[Note that the language “THE INCREASE SHALL BE” is used in the bill by the bill’s drafter to indicate an “automatic” COLA.  Some years ago the Legislature struck the "ad hoc" language relating to the PERA COLA from Colorado law.]

From the SB04-132 Fiscal Note:

“for any person, except a state trooper, who becomes a PERA member after July 1, 2005 . . . specifies that the annual increase in benefits shall be the lesser of 3.0% or the actual increase in the National Consumer Index for Urban Wage Earners and Clerical Workers during the calendar year preceding the benefit increase.”

Discussion of SB04-132 [from the Minutes of the PERA Board of Trustees, March 19, 2004]:

"Mr. Gray then updated the Board regarding SB04-132.  Mr. Gray stated that Senator Ken Arnold would like to get SB04-132 moving again to ensure that it is can be [sic] considered in a timely enough manner by the full Senate and the House of Representatives.  Mr. Gray then requested direction from the Board regarding their view on including additional legislative proposals approved by the Board including, for members hired on or after July 1, 2005, no full retirement benefits at age 50 with 30 years of service, and annual post-retirement benefits of 3 percent or the actual change in the consumer price index, whichever is lower, as well as the reallocation of 0.08 percent of salary of future employer contributions to the PERA pension trust fund rather than to the PERA Health Care Trust Fund.  Board discussion ensued regarding the consequences of including these elements in SB04-132. 

At the conclusion of the discussion, James Casebolt, Board Chair, expressed that consensus among the Board was for staff to continue negotiations with the Governor's Office regarding the defined contribution legislation.  Mr. Casebolt also stated that the Board would provide staff with the latitude to include the three aforementioned provisions in SB04-132, if necessary.")

Back to excerpts from the oral arguments, Dan Domenico:

"I think the plaintiffs concede that saving PERA, trying to get it back to being actuarially sound, is in fact a legitimate public purpose."

(My comment: Note that the funding ratio [AFR] of the Colorado PERA pension system was 69 percent at the time of the PERA COLA taking.  The PERA system was actuarially sound at the time of the taking.  In the 1970s, many public pension systems in the United State operated on a "pay-as-you-go" basis, that is, the systems had zero percent funded ratios, yet they continued to meet their contractual obligations.  Further, it is not the responsibility of Colorado PERA members and retirees to bail out Colorado state government, to pay for the state's decade-long failure to meet its ARC obligations, and its past mismanagement of the PERA pension system, such as the Bill Owens "service credit fire sale.")

Question from a Colorado Supreme Court Justice at 56 minutes into the oral arguments:

"Mr. Domenico, tell me, just very quickly again why you think, what the principal difference is between why the PERA benefits themselves are contractual, and the COLA is not contractual."

Dan Domenico:

"The key difference is the statutory construction difference.  Part 10 does not include the durational language that says you're entitled to this for life."

"It simply says, while this statute is in effect, here's how we calculate the benefit."

"The base in Part 8, especially 801, says you're entitled to this benefit for life."

(My comment: Of course, I see this as further deception of the Colorado Supreme Court.  The language creating the base benefit contract and the COLA contract is the same, "SHALL."  I cannot believe that Colorado PERA's lawyers have embraced such a transparent deception.)

PERA retiree attorney Rosenblatt comments in rebuttal at the conclusion of the oral arguments (57 minutes into the oral arguments):

"First of all, I want to disagree with my colleagues as to what creates the base contract, the base pension contract, it is 24-51-602, which reads, that members . . . SHALL upon written application and approval of the board, receive service retirement benefits pursuant to a benefit formula . . ."

Richard Rosenblatt:

"So, it's 'SHALL RECEIVE' is the language that creates the contract for the base pension, which they (defendant's attorneys) agree is a contract."

"And, the COLA statute says "SHALL," uses the same mandatory language."

"The durational language that they speak of is under a section that sets forth options for payment of lesser amounts if the retiree wants the benefit to cover the life of a spouse."

"The actual creation of the (base benefit) contract is based on the mandatory language 'SHALL RECEIVE" in 24-51-602 and I would submit that the mandatory language is the same as the mandatory language in the COLA."

Attorney Rosenblatt continues:

"As far as Justice Boatright's question concerning . . . have there been any changes to the detriment, since 1994, which is when the class that we have begins, there's been no change to the detriment of any current retiree."

"In 2005, contrary to what the Solicitor General said, they decided to change treating everyone identically with the COLA."

"In 2005, and it was based on a recommendation from the (Treasurer's PERA) Commission, and in our belief, based on the McPhail/Bills analysis that Attorney General Salazar had followed, they said in 2005, for future retirees, not for current retirees, but for future retirees, it's going to be a different COLA formula."

"So, already they had created a different COLA formula, for post-2005, people fully-vested after 2005, than for people fully-vested before."

"So, the idea that it was identical is just not correct."

"We believe that this court should continue as it did in Peterson to follow McPhail and Bills and apply the fully-vested COLA right."

On June 4, the periodical Chalkbeat covered the Colorado Supreme Court oral arguments in Justus v. State:

From Chalkbeat:

"The size of future checks for thousands of retired teachers and other civil servants is now in the hands of five Colorado Supreme Court justices."

"The court heard an hour of oral arguments Wednesday morning in the case of Justus v. State, a lawsuit that challenges reductions in retiree cost-of-living payments by the Public Employees’ Retirement Association (PERA)."

"A 2010 law (Senate Bill 10-001), eliminated payments associated with cost of living that year and cut retirees’ annual benefit increases from 3.5 percent to 2 percent starting in 2011.  Future increases could drop below 2 percent under certain conditions.  (While the increases are commonly referred to as cost of living raises, they aren’t pegged to inflation or consumer prices.)"

"When the lawsuit was filed, plaintiffs estimated the COLA reduction could cost the typical retiree more than $165,000 over 20 years."

"The legal issue before the supreme court is whether retirees have a contractual right to the 3.5 percent COLA."

"Lawyers for each side presented starkly opposing views to the high court on Wednesday."

"The COLA 'is part and parcel of the pension,' said Richard Rosenblatt, who represents the retirees who filed the original suit.  A retiree’s main pension benefit together with the COLA 'clearly is a contract.'”

"But Sean Connelly, representing PERA, argued, 'There is no contractual right to a COLA fixed at a certain point.'  He urged the justices to overturn the Court of Appeals and accept the trial court’s dismissal of the case."

"Both Connelly and Solicitor General Dan Domenico, representing the state, noted that COLA payments have fluctuated several times over the last few decades, and that those changes have applied to retirees."

(My comment: "fluctuation" is not the issue, impairment is the issue.  An improvement of the PERA contract does not breach the contract, only a retroactive reduction of the COLA impairs the contract.)


"Four of the five justices asked questions during the arguments, but their queries didn’t hint at any clear leanings on the case."

"The case originally was filed within days of SB10-001 becoming law.  A district court judge ruled in 2011 that the state and PERA could reduce the payments.  But the Colorado Court of Appeals ruled in 2012 that pensioners do have a contractual right to the COLA in effect at the time of retirement but gave the state a possible out.  The appeals court concluded the courts 'must still determine whether any impairment of the right is substantial and, if so, whether the reduction was reasonable and necessary to serve a significant and legitimate public purpose.'”

"There are no set deadlines for the court to rule on a case after oral arguments.  In a recent big public policy case, the Lobato v. State school funding suit, the court ruled a little less than three months after arguments were held."

"Chief Justice Nancy Rice announced that Justices Allison Eid and Monica Marquez would not be participating in Justus v. State. Justices typically don’t announce why they’re not participating."

(My comment: Justice Hood did not recuse himself in this case, Justus v. State, in spite of his past association with an attorney who worked on the case [Mark Gruseskin,] and although he was recused or removed in Colorado's Moreno "redistricting" case due to his past association with the attorney Grueskin who worked on the Moreno case.)

The Code of Judicial Conduct:

“A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.”

Is the rationale for Justice Hood’s recusal or removal in the Moreno case public information?  Why would Justice Hood recuse himself in one case due a former association with case attorney Mark Grueskin, but not in another case due to a former association with case attorney Mark Grueskin?


Attorney Richard Rosenblatt began the oral arguments by noting that the taking of the contracted PERA COLA benefit was "per se" unreasonable.  He commented extensively on Colorado's primary on-point public pension case law, Bills, McPhail and Peterson.  He said that the Bills case dealt with a "limited vested" pension right and applied a "reasonable and necessary defense."  He said that the State of Colorado cannot impair a fully-vested public pension contractual right under the Contract Clause.  Rosenblatt stated that the Defendants believe that another case, DeWitt, changed the legal test for acceptable contract breach set forth in Bills and McPhail.  He commented on an important U.S. Supreme Court contract case, U.S. Trust (decided in 1977) and he noted that eleven years later, in 1988, the Colorado Supreme Court held that a fully vested public pension contractual right could not be impaired in its own Peterson case.

PERA retiree attorney Rosenblatt said that the State of Colorado must fulfill its end of the PERA pension bargain.  He noted that current workers in the Colorado PERA pension system have the right to leave that employment, and that they are not forced to live under the terms of their contracts with PERA.  Colorado PERA retirees on the other hand have completed the contribution of money and labor, constituting their consideration under the PERA pension contract. 

Richard Rosenblatt noted that an opinion of the Colorado Attorney General, supporting contractual public pension rights, agrees with the analysis in McPhail, Bills and Peterson.  He commented on the work of the Colorado Treasurer's Commission, that studied Colorado PERA public pension benefits a decade ago, and that found that the benefits of current PERA retirees could not be impaired.

(For the record, an August 17, 2005, press report of the Colorado Treasurer's Commission to Strengthen and Secure PERA:

Colorado Assistant Attorney General Heidi Dineen, Rocky Mountain News [in a four part series]: "'Everyone agrees you certainly can make changes for people you haven’t even hired yet,' said Heidi Dineen, a state assistant attorney general retained to explore the issue for the Commission to Strengthen and Secure PERA. 'On the other side of the spectrum is pensioners, getting their pension checks, you cannot take that away.'"

"[Colorado PERA General Counsel Greg] Smith said in his opinion that ‘other [non-Colorado] courts have set a high burden to meet the necessity threshold.'"

“His [Colorado PERA General Counsel Greg Smith's] briefing paper said 'there has never been a finding in Colorado that the state has reserved its power to make changes' in PERA's benefit structure.”

"The PERA board, however, relying on a legal opinion by General Counsel Greg Smith, thinks benefits cannot be cut for any active PERA member.  That means not just current retirees and workers who are eligible to retire but the brand-new employee who has put less than a year of contributions into the plan."

"Smith argued, however, that there is no precedent for declaring an actuarial emergency unless a pension fund has a serious cash liquidity problem."

Greg Smith, Colorado PERA’s General Counsel told us in a Denver Post article from November 30, 2008: “The attorney general’s opinion seems clear that fully vested employees — those retired or with enough years of service to retire — cannot see any benefits reduced, including cost-of-living adjustments.”

Back to coverage of the Colorado Supreme Court oral arguments:

Attorney Rosenblatt also noted that Colorado PERA, in a 2008 publication, stated its agreement that the fully-vested pension benefits of PERA retirees could not be legally impaired.  Attorney Rosenblatt informed the Colorado Supreme Court that the PERA COLA "is not a free-standing benefit."  He said that the COLA is part of the pension benefit, "it's intertwined."

He noted that the COLA is simply a method by which the pension benefit retains its value over time.  He said that Colorado PERA retirees have relied on their accrued COLA benefits in planning their retirements and the remainder of their lives.

Transcribed excerpts from the oral arguments;

A question from Colorado Supreme Court Justice (Hobbs):

"To me, you're arguing for a divestment of legislative authority here, there are plenty of people right now who didn't get raises the past ten years because of the economy, that are contracted with by the State of Colorado.  Right?  When they took those jobs and continue those jobs they would have expected hopefully, a cost-of-living adjustment, there's no guarantee to that, even for present employees, so why should that be with respect to the prospective argument that you're making that the Legislature is somehow divested of the authority to make these decisions, particularly when they have to do with the fiscal integrity of the whole system?"

(My comment: There are many problems with this statement/ question from Justice Hobbs, including its presumptions, and the lack of understanding it betrays.  First, there is no proposed divestment of legislative authority.  The Legislature does not have the authority to violate the constitutional Contract Clause.  Second, obviously, governmental employees have no contractual right to receive a raise each year.  Colorado PERA retirees in accordance with on-point Colorado case law, a Colorado Attorney General's opinion, clear Colorado statutes, legislative intent, the report of the Colorado Treasurer's Commission to Strengthen PERA, Colorado PERA's publications, Greg Smith's legal briefs, Greg Smith's statements in the press, and Colorado PERA attorney's testimony to the Colorado Joint Budget Committee, INDEED HAVE a contractual right to their accrued PERA COLA benefits.  Third, taking accrued public pension benefits is retroactive and retrospective under the Colorado Constitution, rather than prospective.  Fourth, the fiscal integrity of the Colorado PERA pension system is not at issue here.  At the time of the PERA COLA contract breach in 2010, PERA's [actuarial funded ratio] stood at 69 percent, approximately the funding ratio of major U.S. public pension systems at the time.  The taking of the Colorado PERA COLA benefit in perspective: [54.5% to 105.2%] – 40-year range of the Colorado PERA actuarial funding ratio [AFR], [source, Colorado PERA.]; 78% – average PERA AFR over the 40-year period; 68.9% – PERA AFR at time of the taking of the contracted 3.5 % COLA benefit; 9.1% – difference between the PERA AFR at time of COLA taking and the 40-year average PERA AFR; 11.1% – difference between PERA AFR at the time of the COLA taking and an 80% AFR level considered “well-funded” by Fitch Ratings; 72% – average AFR at the end of 2009 for 57 state retirement systems reporting to Wilshire Associates; 3.1% – difference between the Colorado PERA AFR and Wilshire Associates average AFR for 57 state retirement systems at time of PERA COLA taking; 2.16 – percent of Colorado state and local government spending dedicated to public pension support in 2008 [Census Bureau, NASRA]; 2.89 – average percent of state and local government spending dedicated to public pension support among the states in 2008; 5.55 – highest percent of state and local government spending dedicated to public pension support among the states in 2008 [Nevada]; #32 – Colorado 2008 rank among the states in taxpayer support for public pensions; [For the entire decade of the 1970s the PERA AFR was lower than it was at the time of the taking of the contracted COLA, yet there was no campaign to breach retiree pension contracts.]

It is the responsibility of the Colorado Supreme Court to determine if payment of the PERA COLA benefit is a contractual obligation of Colorado PERA, not to use other people's money to pay the labor costs of Colorado state and local governments.

I was surprised at Justice Hobbs' statement in the oral arguments:

"To me, you're arguing for a divestment of legislative authority here . . ."  I ask, is it appropriate for an appellate judge to state a position in a case prior to deliberations in the case?  [Particularly, in a case where the plaintiffs have had no opportunity to present the facts of the case to a jury?  The facts of the case have not yet been discovered.]

From his comments, it sounds like Justice Hobbs has already made up his mind that there is no contract for the PERA COLA benefit.  It sounds this way because, if the PERA COLA is a contractual obligation, there is no such claimed "divestment of legislative authority."  The Legislature has no authority to violate the Contract Clause.)

Attorney Rosenblatt's response to this question posed by Colorado Supreme Court Justice Hobbs:

"Because, for this particular right, just like the base pension, there is a contract that provides that they will continue it, that they were promised this."

"We're talking about people who have fulfilled their end of the bargain, have left, they're gone, they're retired.  They have now completed their career.  They did everything they were asked to do under their contract with the state."

"There's nothing in the Legislature that guarantees anyone a pay raise every year during the term of their employment, not even these retirees when they were employed."  "But, there is something there that guarantees them a base pension under a certain formula, and a COLA."

(My comment: August 8, 2012, Douglas Greenfield: “The theory behind that is that a pension that has a COLA is the equivalent of a fixed pension . . . that you could just have a higher fixed pension and no COLA . . . and is just a method by which you are providing the benefit.”  Greenfield participated in a panel discussion on hosted by the National Conference of State Legislatures.  The panel discussion was titled: “How Much Can States Change Existing Retirement Policy?”

Question from a Supreme Court Justice:

"A number of times you've talked about promises, and then sometimes you've talked about fulfilling a bargain."  "Do you think for purposes of the Contract Clause, there is a difference between something that in normal contract terms we would distinguish as promissory estoppel, or relying to your detriment on a promise, from actually being a contract in which there is an exchange of promises?  And the reason I ask that is because the argument pegs the COLA to the point at which retirement occurs, is that more implicitly an argument that the COLA should not be allowed to be changed after that point, because the employee has relied to his detriment in choosing to retire at that level, rather than promising to give something up in exchange for the promise?"

Attorney Rosenblatt's response:

"Well, we hadn't made the promissory estoppel argument, as a detrimental reliance argument, but I will say that in McPhail and Bills they . . . talked about, as fully-vested, you have fulfilled all of the conditions of the promise, they then found it contractual because of the mandatory language . . . they found a contract, the contract is 'you shall receive this escalator clause.'  'You shall be entitled to it' is the exact language."

(My comment: Colorado has traditionally followed the contractual "California Rule" of public pension jurisprudence.)

Question from a Colorado Supreme Court Justice:

"So, can the worker, the employee, be said to have given something in exchange to the state, in order to receive that retirement benefit?"

Richard Rosenblatt:

"Every contract has consideration, and the consideration that the employee gave was X number of years . . . of service, and X amount of contributions toward the plan, that's their consideration."

(My comment: August 2, 2010, Ritter Administration Letter to GASB on contractual public pension obligations:

“COSC agrees that an obligation exists since the government entity has entered into a duty, contract, or promise to provide compensation in the form of benefit payments during retirement; and furthermore, we agree that this obligation is a present obligation to the extent that the benefits owed have already been earned through past services, and are legally enforceable once vesting provisions have been met.”

“Because the exchange transaction which gave rise to this present obligation was made between the employer and the employee who is also a member of the pension plan, a reduction in member benefits [such as COLAs], or an increase in required employee contributions both serve to change the net economic benefit to the employee that was entered into at the time of the exchange transaction agreement.”

“The criteria suggested as the basis for differentiating these COLAs [automatic] versus ad-hoc COLAs is the statutes that exist as of the date of the employer’s financial statements.”

“The essential difference between an automatic COLA and an ad hoc COLA is the legal requirement; with this core difference there is no way for the two not to be substantively different.  The legal difference in this instance is critical to the determination of whether the government is unable to avoid the surrender of resources to meet the obligation.”

Question from a Colorado Supreme Court Justice:

"You haven't talked much about the DeWitt case, and your opponents take the position that DeWitt really is the case that controls.  What's your position with respect to that?"

Richard Rosenblatt:

"Let's be clear, DeWitt involved an insurance contract, it wasn't (a case) where the state is a contracting party."

"DeWitt didn't enunciate a new test on the overarching issue, it simply articulated for the first time in this court, what the three parts of determining . . . that applying U.S. Trust."

"DeWitt is not new law.  DeWitt is just applying what's been the long-term law of the state and of the United States Supreme Court."

At 27 minutes into the oral arguments Sean Connelly representing Colorado PERA began his commentary.  He started with the second question (of three issues) facing the court, whether plaintiffs have their claimed contractual right to the PERA COLA benefit.

Sean Connelly said that the defendants support the finding of a contractual right to the COLA in the Bills and McPhail cases.

Sean Connelly:

"In evaluating whether the contract right exists, the court is to begin with the presumption that Legislatures, in Justice Hobbs words, do not divest themselves of the power to respond to changed circumstances in the future."

(My comment: This statement by Sean Connelly, regarding divesting legislative authority calls to mind a recent Florida court decision in a public pension case:  “This court cannot set aside its constitutional obligations because a budget crisis exists in the state of Florida.  To do so would be in direct contravention of this court’s oath to follow the law.”  “To find otherwise would mean that a contract with our state government has no meaning.”  “Courts, though, 'sit to determine questions on stormy as well as calm days,' and the Constitution was upheld during the Great Depression.”)

Sean Connelly:

"Based on the language and surrounding circumstances (in Bills and McPhail) the court properly held that the pension and the right to the escalation there, was a vested right that could not be impaired, absent sufficient justification."

"The vested benefit under PERA is the right to the initial monthly benefit, and not, we submit, the right to the annual increases under a specific formula."

(My comment: December 16, 2009, Colorado PERA officials in written testimony to the Joint Budget Committee: “The General Assembly cannot decrease the COLA [absent actuarial necessity] because it is part of the contractual obligations that accrue under a pension plan protected under the Colorado Constitution Article II, Section 11 and the United States Constitution Article 1, Section 10 for vested contractual rights.”

Question from a Colorado Supreme Court Justice at 30 minutes into the oral arguments:

"Is DeWitt consistent or inconsistent with Bills and McPhail?"

Sean Connelly:

"I think that it's consistent with the result.  It's consistent with the result of everything else.  In our view, under Bills and McPhail the result would be exactly the same that there was a protected benefit and there was no overriding justification that could have justified that impairment."

"Where there might be some tension with it, is when can that right be impaired?"

(My comment: Sean Connelly notes that the position of the City of Denver in Bills/McPhail was that the pension was a mere "gratuity."  The Colorado Constitution includes an anti-gratuity clause, therefore the PERA COLA cannot be a gratuity.)

Question from a Colorado Supreme Court Justice:

"Do you think that tension exists or has to be resolved in this case?"

Sean Connelly:

"I don't think it has to be resolved."  "I think the dispositive issue here can be 'is there a contract right to a COLA fixed in formula.'"

"I'd like to argue further why there is no contract right."

Sean Connelly at 34 minutes into the oral arguments:

"DeWitt, as Mr. Rosenblatt points out, was a private contract, but it cited U.S. Trust which was a public contract, and the Supreme Court and this court historically have not distinguished between private and public contracts."

(My comment: In 1977, the U.S. Supreme Court [in U.S. Trust Co, 431 U.S.] clarified that state attempts to impair their own contracts, ESPECIALLY FINANCIAL OBLIGATIONS, were subject to greater scrutiny and very little deference because the STATE'S SELF-INTEREST IS AT STAKE.  As the court bluntly stated:
“A governmental entity can always find a use for extra money, especially when taxes do not have to be raised.  If a state could reduce its financial obligations whenever it wanted to spend the money for what it regarded as an important public purpose, the Contract Clause would provide no protection at all . . . Thus, a state cannot refuse to meet its legitimate financial obligations simply because it would prefer to spend the money to promote the public good rather than the private welfare of its creditors.")

Sean Connelly:

"This is economic legislation and there is no basis . . . for straightjacketing the Legislature from changing to, changed circumstances."

"These are specifically the kinds of decisions that must be left to a Legislature if they can make the showing of reasonableness and necessity as to the need for impairing any contract."

(My comment: The Legislature, the state, and PERA have not made any showing of reasonableness and necessity due to the fact that this case has never gone to trial.  I hasten to add that Colorado PERA's attorneys have expressed their desire that the case not go to trial.)

Question from a Colorado Supreme Court Justice to Sean Connelly:

"So your position is that it's the rate increase that is not a contract, not whether the COLA is a contract?"

Sean Connelly:

"Yes, that is my position, that's my position if that's the only question presented here."

(My comment: Pause for a moment and consider just how ludicrous this statement is.  Sean Connelly argues that the PERA COLA benefit is a contractual obligation, yet it may legally be reduced to ZERO.  In accordance with his view of contractual obligations Connelly should have no problem with Colorado PERA paying him one dollar for his legal services under his employment contract.  If Connelly's contract requires that he be paid $50,000 for his legal services, the fact that the contract specifies this amount of compensation is apparently of no relevance to Sean Connelly.  He would be happy with one dollar, and consider himself to have been provided "compensation" under his contract.)

Question from a Colorado Supreme Court Justice at 40 minutes:

"The contract here includes an adjustable COLA that the Legislature sets, it can go down or up, but when that is done for that particular increment of a monthly paycheck then it becomes part of a contract."

Sean Connelly:

"Certainly current workers are contributing more, working longer, and retiring ultimately with less than any of these current plaintiffs."

"Even when there is a state contract being impaired, this is still economic legislation."

"In this case, the state was acting to respond to a crisis and at the end of the day the PERA fund is more healthy now because more money is being put into it."

(My comment: Sean Connelly's statement that current workers are working longer for their PERA benefits, in my opinion, misleads the Supreme Court.  In 2010, SB10-001 did not increase the years of service needed by current workers to qualify for a PERA pension benefit.  How can he possibly not know this?

Also, we have seen that the Colorado Legislature is the author of the downturn in Colorado PERA's financial condition, due to a failure to pay the pension system's ARC for a decade, and the preference of politicians to use state resources for discretionary purposes such as corporate welfare.  Finally, it is obvious that when the State of Colorado escapes its contractual financial obligations, it has more money.) 

Colorado Solicitor General Dan Domenico representing Governor Hickenlooper and the State of Colorado began his comments at 44 minutes into the oral arguments:

"The plaintiff's case is wrong . . . as a matter of the purposes and functions of a COLA, a cost-of-living adjustment."

(My comment: Dan Domenico apparently lacks an understanding of the history of the PERA COLA benefit.  When the PERA COLA benefit was created, PERA officials took the position that the 3.5 percent COLA rate would approximate PERA's long-term expectations of inflation.

March 24, 1993 (1:32 PM – 2:28 PM)

Rob Gray, Director of Government Relations, Colorado PERA:

“The (CPI up to) 3.5 percent increase is a reasonable level.”  “It will probably come close to what the long-term inflation rate is.”

Rob Gray, testifying to the Legislature's House Finance Committee in regard to the "automatic" PERA COLA benefit under consideration [in House Bill 93-1324]: “The PERA Board does support this bill.”  “We felt like it is something that is good pension policy . . . that it makes sense . . . THAT IT IS MAKING PERMANENT CHANGES, and also that it does help employers which is one of the goals of the bill.”  Rob Gray states that the proposed COLA “adds predictability for current and future retirees, people looking at leaving might look at this and say now I know how my future increases are going to be determined . . .”.  Rob Gray characterizes the “automatic” PERA COLA benefit as a Colorado PERA liability: “when a change in benefits is added, like this bill, it extends out the period for paying off that unfunded liability.” If you listen to the recording of this meeting, you will also hear a member of the House Finance Committee refer to the Colorado PERA COLA provision under consideration as a pension benefit that is “guaranteed,” “now and in the future.”  [Note that the contracted PERA COLA benefit adopted by the committee was in later years improved by the Colorado General Assembly to flat 3.5 percent level, constitutionally permissible as this "improvement" did not impair PERA pension contracts.])

Support the rule of law in Colorado at

Pretty Thin Primary Ballot for Denver Democrats

House Speaker Mark Ferrandino, right, is backing Alec Garnett as his successor in HD-2.

Alec Garnett (left) and House Speaker Mark Ferrandino.

Denver Democrats are used to Primary Election evenings that are about as suspenseful as waiting to hear the name of the Broncos' starting quarterback, but this year is even quieter than most. The only real Primary race in Denver is in HD-2, where Alec Garnett and Owen Perkins are running to succeed the term-limited House Speaker Mark Ferrandino.

Most Denver races are decided in a Primary because of the overwhelming voter advantage for Democrats, and once someone gets elected for the first time, they tend to go unchallenged as long as they don't make any unusual mistakes. Since a Republican has virtually no chance to pull a General Election upset, any aspiring candidates in Denver must bide their time until term limits re-open the field. In cities such as Denver and Colorado Springs (the latter being overwhelmingly Republican), it has become something of a paradox that it often takes more time and effort to win a Primary even though you are courting a significantly smaller number of likely voters. For example, candidates have been actively campaigningin HD-2  for more than a year; this is quite a contrast to a more competitive House District such as Lakewood's HD-23, where Republicans have only had a candidate in place for a few weeks. This happens, of course, because more candidates are realizing that consolidating support early can leave your opponent few places to turn once the ballots finally start to drop. Call it the Perception Primary — the campaign inside the campaign.

There is a great example of this happening in HD-2, where Garnett has run an exceptional race thus far. Garnett faces Perkins in a two-person race that narrowed when Aaron Silverstein failed to make the ballot threshold requirement through the caucus process. To date, Garnett has been the most proficient fundraiser of any State House candidate in Colorado, and he has deftly maneuvered to pick up critical endorsements at key points in the race (including Rep. Ferrandino's endorsement in February). Last week, Garnett announced the support of former Gov. Bill Ritter and current State Rep. Daniel Kagan, two excellent endorsements to add to your list just before ballots begin to go in the mail. 

Weird things can, and do, happen in Primary Elections, so there's no guarantee that Garnett's efforts will be rewarded when ballots are counted. But if you were a betting man (or woman), you'd have trouble finding a candidate with stronger odds next month.

“Lose By Winning”–The Colorado GOP’s Long-Term Dilemma

The Republican base (increasingly to scale).

The Republican base (increasingly to scale).

A great analytical piece from Politico's Todd Purdum this weekend makes points that observers of Colorado politics should keep in mind, and have been borne out by Colorado's recent political history as we'll explain:

It’s the predominant paradox of contemporary American politics: If Republicans prevail in this year’s midterm congressional elections, it will be because of their party’s sharp-edged stances on topics like abortion and Benghazi, Obamacare and immigration, gay marriage and the minimum wage — issues that energize the GOP’s core base of support.

But if Republicans lose the race for the White House in 2016, it will be because of their party’s polarizing, out-of-step stances on those very same issues, which alienate much of the broader electorate the GOP needs to win a national contest in a country whose demographics and political realities are shifting under its feet…

“The Republican Party has essentially now two wings: a congressional wing and the national wing,” the veteran GOP pollster Bill McInturff said at a recent Pew Research Center forum on so-called millennial voters, those from 18 to 29 years of age. The congressional wing is thriving, especially in the South, in districts that are 75 percent, or even 80 percent, white, and where every incumbent’s worst fear is a challenge from the right.

…On questions like climate change and gay marriage, pollster McInturff said, younger voters no longer believe there is anything to argue about. He summed up their views as: “‘We wouldn’t fight about that. That’s just presumed to be true.’” [Pols emphasis]

Thomas Mann, the veteran political scientist and Congress-watcher at the Brookings Institution, said that, at the moment, the Republicans are “simply not a presidential party.”

In Colorado, the 2010 "GOP wave" election is generally reckoned to have been a "modest" defeat for the Republican Party. Democrats easily won a gubernatorial race in which the Republican frontrunner self-destructed, and won a narrow victory in a top-tier U.S. Senate race against a candidate whose backward views on social issues rendered him unpalatable to independent and women voters. The state didn't completely escape the effects of historic Republican victories across the nation in 2010, with the GOP picking up two congressional seats, winning the statewide races for Attorney General, Treasurer, and Secretary of State, and the Colorado House flipping to the GOP by a single extremely narrow win in the northwest Denver suburbs. But the overall result was well short of what Republicans had expected the summer before.

In 2012, Democrats in Colorado ran the table on Election Night, sweeping GOP House Speaker Frank McNulty from power in the state House and delivering the state to Barack Obama by a comfortable margin. Going into the 2014 midterms, we see the same pressure on Colorado Democrats to turn out their base voters and swing independents that was evident in the midterm elections of 2010. The question is, can Colorado Democrats minimize the impact of this midterm "wave" as they did in the last midterm election?

The answer is very logically yes, and as the story above explains, it's because the overarching demographics driving this whole midterm/presidential year dichotomy inexorably favor Democrats. One of the biggest reasons the Republican Party has lurched so far to the right since the election of Barack Obama is that, as this changing American electorate begins to decide elections, the biggest constituency Republicans have left to appeal to is the out-of-the-mainstream fringe right wing. Republicans were fully willing to embrace the "Tea Party" to win in 2010. There was a powerful short-term advantage in appealing to this segment of the electorate, in that they are extremely reliable and passionate voters. There is a tremendous enthusiasm gap between such voters, who vote in greater numbers in every kind of election, and the much larger body of voters who turn out once every four years. We're certainly not the only ones who have said this, but we've been saying it for years: 2010 wasn't about who voted, it was about who didn't vote.

And we could say the same thing about John Morse's recall. Or the Jefferson County school board.

The markedly different electorates who decide midterm and off-year vs. presidential elections can result in head-snapping results from one election to the next. Just as one example, the Jefferson County voters who turned out to re-elect Barack Obama in 2012 would never have voted in the radical conservative school board majority now causing street protests the following year. If this seems like an obvious point to you, that's great, but most voters simply don't understand these differences–and as a result, fringe minority electorates are assumed to be representative.

In 2010, Colorado Democrats used exactly what appeals to these ardent conservative voters against Republicans with the broader presidential-year electorate–and by effectively driving home the message of GOP extremism, incompetence, and moral turpitude, they turned out just enough of the 2008 electorate to break the "GOP wave." Colorado Democrats have the same challenge in 2014, but they also have the same opportunity: a rich body of material to use against Republican candidates at every level, from Cory Gardner to Victor Head.

And each year, as the changing electorate chips away at the GOP's narrowing coalition, it gets easier.

New Online Tool Tracks Colorado’s Many Oil Spills


As the Colorado Independent's John Tomasic reports, food for thought as the debate over "fracking" near Colorado's populated areas goes on:

The energy and environment research Center for Western Priorities this week released a map of oil-industry spills that have occurred in Colorado over the past 13 years. It’s a colorful map but it’s not very pretty.

The map is built on information compiled by the state’s Oil and Gas Conservation Commission and it’s dotted with 4,900 Colorado spill sites, which the group says amount to tens of millions of gallons of oil, drilling fluid and other toxic waste. The main sites of the spills come in the four corners of a square that runs between Grand Junction, Durango, Trinidad and Greeley. The vast majority of the spills come in the northern front range, in an area extending southwest from Greeley between Fort Collins, Boulder, Broomfield, Longmont and Lafayette. Those are the five cities that have drawn lawsuits from the industry and the state for voting over the last two years in support of municipal bans and moratoriums on hydraulic fracturing — the extraction technique where drillers blast millions of gallons of mixed sand, water and chemicals deep into underground rock formations to crack open fissures and release oil and gas.

At its related “Colorado Toxic Release Tracker,” the Center for Western Priorities reports that, since the beginning of the year, drillers reported 156 spills in the state. They reported 44 spills in March. So far, 6 percent of spills this year were reported to have contaminated water. Eighty-four spills occurred within 1,000 feet of surface water. Forty-two spills have occurred less than 50 feet from groundwater.

Looking casually at this sobering interactive map, it becomes really obvious why two of the northern Front Range's "L-Towns"–Lafayette and Longmont, along with Boulder, Broomfield and Fort Collins–have banned or passed moratoria on fracking within their boundaries. Fracking causes more problems than just surface spills, and spills aren't always directly related to the fracking process, but this map vividly illustrates the dirty, accident-prone industrial process going on every day in Colorado–in many cases just across the street or field from neighborhoods.

If you look at this report and still can't understand why local communities are tired of state regulators' outright contempt for their concerns, which has led to the "crisis" of ballot measures to give local communities real power to regulate oil and gas drilling, we respectfully submit that you are the one with the problem. Fracking isn't just an environmentally worrisome process of drilling, it's the fact that it brings drilling to places it hasn't been before–with all of drilling's attendant nastiness like surface spills and air pollution.

And as you can see, the industry's track record where they drill now isn't very good.

Jefferson County Republicans Go Further Down the Rabbit Hole

Nate Marshall, former Republican candidate for HD-23.

Nate Marshall

Anyone familiar with Colorado politics knows that there is no more important county than Jefferson when it comes to winning statewide elections. It may be mathematically possible to win a statewide race in Colorado without carrying Jefferson County, but nobody in their right mind would actually consider that approach. That's why the spectacular implosion of the Jefferson County Republican Party is so important…and why we're baffled to see the problem continuing. Follow along as we reconstruct the tale of one of the strangest few months in recent political memory.

Back in March, Jeffco Republicans nominated Nate Marshall as their candidate to run against incumbent Democratic Rep. Max Tyler in HD-23. It didn't take more than a cursory Google search to reveal that Marshall was probably not the GOP's best option in the Lakewood district; not only did Marshall have a criminal record (which included a 9News investigation from an old crime), but he also had very clear and obvious ties to White Supremacist groups. In other words, you would have had a difficult time finding a worse candidate to represent your Party. On March 27, Jefferson County Republican Party Chair Bill Tucker demanded that Marshall resign as a candidate. An angry and defensive Marshall initially balked — after all, he was officially nominated through the caucus process as the only GOP candidate in HD-23 — but he finally relented and formally terminated his candidacy on April 9.


Jeffco GOP Website, May 15

And that's when things get even weirder.

Jefferson County Republican Party officials inexplicably waited several weeks to form a vacancy committee to replace Marshall on the ballot — you would think that the GOP would be in more of a hurry to close this ridiculous chapter — and it wasn't until Monday, April 28, that they (very quietly) officially met to replace Marshall on the ballot. If you are wondering who the Republicans found to replace Marshall on the ballot, you wouldn't be alone — nobody in or out of the Republican Party said anything about the candidate who prevailed at the vacancy committee. There was no press release. No call to reporters. Even today, the Jeffco Republican Party website doesn't even list a candidate in HD-23.

But there is a Republican candidate in HD-23, which is what makes this whole story even more baffling.

Jane Barnes

Jane Barnes, GOP candidate in HD-23

The Jeffco GOP actually came up with a decent candidate to replace Marshall in Jane Barnes, a former member of the Jefferson County School Board who should have some level of name recognition in the district. Barnes filed candidate paperwork with the Secretary of State's office on May 6, and on May 8, somebody started to create a website for her campaign. But as of this writing, there has been no mention of Barnes as a candidate in HD-23 by, well, by anybody.

What the hell is going on here? It took weeks for Jeffco Republicans to form a vacancy committee to replace Nate Marshall in HD-23, and when the dust had settled, they emerged with a pretty decent candidate (all things considered) in Jane Barnes. Why would anyone think it was a good idea to keep this a secret? Wouldn't you want to make it crystal clear, as quickly as possible, that you had a candidate in a competitive House district who was not a criminal or a white supremacist?

Over the last two months, the level of incompetence displayed by Jefferson County Republicans has been absolutely stunning. This should scare the crap out of Republicans everywhere in Colorado, because there are a lot of statewide candidates who must carry Jefferson County in order to win in November.

Lakewood GOP House Candidate Lifts Perlmutter Slogan

Attorney Stacia Kuhn is the Republican nominee for HD-28 (Lakewood), where the GOP has an uphill battle in trying to defeat incumbent Democratic Rep. Brittany Pettersen. Kuhn's website sports a really ugly logo that would have been trendy in, say, 1985, but she does have a catchy slogan–and it's already been proven to be effective!


Just ask Congressman Ed Perlmutter, the popular Jefferson County incumbent Democrat who has been using basically the same tagline since being elected in 2006:


Kuhn's slogan is "Your Neighbor, Your Voice," which we suppose is just slightly different enough from Perlmutter's "Our Neighbor, Our Voice" to avoid getting sued. But it's not different enough to avoid ridicule, especially considering that HD-28 lies mostly within Perlmutter's district. Safe to say Kuhn's appropriation of Perlmutter's longstanding brand wasn't a good idea, and the chances it was an accident are pretty remote.

Short of a really good explanation, we're filing this in the "too clever by half" department.

Malkin to Fundraise for Pueblo GOP

(Promoted by Colorado Pols)

Michelle Malkin, Fox news pundit and angry Tweeter,  will headline a Pueblo Republican fundraising event – the Lincoln Dinner- on June 7.

 From Facebook: 


The Pueblo County Republican Party will be hosting our 

Lincoln Day Dinner on Saturday, June 7, 2014. 

Michelle Malkin will be our keynote speaker.

The dinner will be at Pueblo Community College - 

Fortino Ballroom at 6pm. 

The cost for the dinner is $50 per person.

Before the dinner, there will be a reception (5 – 5:45 pm) with 

Michelle Malkin and our slate of republican candidates. 

Malkin has been pushing Benghazi hysteria, and criticizing Pelosi, Grayson, Reid, the Common Core, and most liberal commentators.  She is a supporter of Colorado's medical marijuana laws, and has visited Marisol Therapeutics in Pueblo West.  Malkin is based in Colorado Springs.


No legislators were harmed in the making of this video


This week, the Colorado legislature wrapped up the 2014 session. Some really good things happened this year: help with childcare for working families, better education funding, disaster relief, environmental protections, and supporting high paying jobs in our state. In addition, some bad things got defeated, like crazy abortion bans and repeals of Colorado’s great renewable energy standards. And although there were some partisan fights, over 96% of the bills passed this year in Colorado had the support of both Democrats and Republicans.

We hope you enjoy it. If you do, take a minute right now to share it with your friends on Facebook and Twitter.

2014 should be remembered as a year when Colorado lawmakers got things done and left our state better than they found it. We hope that makes you happy too.

Rep. Don Coram and his War on Rural Coloradans

(Promoted by Colorado Pols)

"Members, this is a war on rural Colorado. This product on the Uravan mineral belt is their only option for jobs.  With this bill, that option is lost." Rep. Don Coram on SB 14-192

What Colorado State Representative Don Coram calls a “War on Rural Colorado” others might call the “holding environmental scofflaws accountable” or “making polluters clean up their mess before we trust them to not make another”  act. 

And surprisingly enough (if apparent conflict-of-interest is surprising among good-old-boy politicians) Rep. Don Coram fought legislation that could force himself to comply with cleaning up a toxic mess for which he himself is responsible.

As passed the Senate Bill 192 requires radioactive contamination to groundwater wells be cleaned up to levels that meet the standards of the Water Quality Control Commission for the well's historic use. But as originally proposed the bill would have placed stricter controls over all the 32 uranium mines that are still operational in Colorado, and on any new operations that apply for licenses.

As the Durango Herald noted in an editorial blasting Rep. Coram:

State Rep. Don Coram, R-Montrose, was on the wrong side of history Monday on several fronts. In opposing Senate Bill 192, he took on the role of a lobbyist, argued against a popular and prudent environmental protection and, at the same time, played off of the unrealistic hopes of economically challenged towns. It was not his finest hour.

SB 192 is a bill meant to address the kind of environmental disaster experienced by Cañon City when the Cotter uranium mill poisoned a neighborhood’s groundwater. It sets minimum standards for groundwater cleanup before a company can be absolved of further responsibility. It also mandates that uranium and thorium mines be licensed by the state health department if they use a process that involves injecting water into rock formations.

Remediation for ‘Collateral damage’ might as well be another name of the Department of Energy’s ‘Legacy Management’ program.  The ‘legacy’ is the mess of toxic waste that will remain deadly for thousands of years.  Colorado’s toxic legacy has already cost the American taxpayer billions—and led to the removal of an entire town, a trail of cancer casualties, and the ruin of lives from the busts that inevitably, almost inexorably, follow booms in company towns built to be solely reliant on single, highly volatile extractive industry.  


ProgressNow Colorado’s Winners and Losers of the 2014 Legislative Session




1. Colorado students

This year, Colorado finally began the road back from years of devastating budget cuts to our public schools and colleges. Thanks to an improving economy and sound budgetary decision making, the state was able to restore $100 million in funding for our colleges and universities and begin to restore millions of dollars in badly-needed funds to K-12. We have a long way to go to restore all of the cuts to education since the Great Recession, but 2014 was a great start.


1. Rocky Mountain Gun Owners

In 2013, the extremist pro-gun group Rocky Mountain Gun Owners helped organize recall elections against Colorado Senators who supported last year’s common-sense gun safety reforms. This year, it was widely expected that RMGO would flood the Capitol with angry mobs and misinformation in an attempt to repeal these new laws. Unfortunately for RMGO, those crowds of gun rights activists failed to reappear at the Capitol as they had in 2013. The reason is simple: the sky didn’t fall, and Colorado’s new gun safety laws are working.


2. Colorado’s economy and working families

From support for advanced industries to helping ensure the working families most in need can get child care assistance, this was a great legislative session for Colorado’s economy. Following up on legislation from 2013, support for advanced technology job creators was increased. Legislation brought by Sen. John Kefalas and Reps. Brittany Pettersen and Tony Exum to expand child care grants will provide invaluable help to families trying to balance their careers with caring for young children. 


2. Anti-choice extremists

This year, far-right legislators introduced yet another piece of legislation that would ban all abortions in Colorado, even in cases of rape or incest. Colorado is a pro-choice state, and voters have repeatedly rejected abortion bans in statewide ballot measures in recent years. This year’s abortion ban bill failed, but not before numerous conservative legislators, including House Minority Leader Brian DelGrosso, had signed on as cosponsors. Attempting to ban abortion in Colorado has already done grave political damage to conservatives, but they still haven’t learned their lesson. Colorado women won’t go back.


3. Victims of floods and fires

Following devastating floods and fires in 2013, Democrats and Republicans in the Colorado General Assembly came together to pass comprehensive legislation to help our state recover from last year’s catastrophic events and improve our ability to cope with future natural disasters. Leaders like Rep. Dave Young, co-chair of the Flood Disaster Study Committee, worked overtime to ensure the lessons learned in 2013 were reflected in policy this year. Tax credits to offset damage to property owners, streamlined relief funding for affected residents, and flexibility for local government to fund road and bridge repairs are just a few of the sensible reforms that passed this year with bipartisan support.



3. House Minority Leader Brian DelGrosso

Republican Colorado House Minority Leader Brian DelGrosso deserves some credit for helping pass many bipartisan bills this year, but he stumbled badly by signing on to the disastrous abortion ban legislation mentioned above. DelGrosso also faced major embarrassments within his caucus, such as the chronically sleepy and tardy Rep. Justin Everett, and Rep. Jared Wright leaving a loaded gun unattended in a Capitol hearing room. Some leaders make the best of a bad situation, but DelGrosso was unable–or unwilling–to help himself and his party's brand this year.

4. Governor John Hickenlooper

Gov. John Hickenlooper’s administration worked both in public and behind the scenes to defend and expand on the historic progress made by the General Assembly in the last two years. Hickenlooper has shown real leadership on issues ranging from education to reproductive choice to equality for every Colorado family. And Hickenlooper ends the 2014 legislative session with an unbeatable record of solid economic growth in his first term.


4. Senate Minority Leader Bill Cadman

At the beginning of this year’s legislative session, Senate Minority Leader Bill Cadman exploded in a fit of rage on the Senate floor, claiming that bills were being mishandled, and even threatening recalls against Senate leadership. But as it turned out, Cadman was completely wrong, and the gun safety repeal bill he complained about received a fair hearing. But the incident underscored Cadman’s reputation as an erratic hothead, prone to emotional outbursts and unsuited to leadership.


5. Speaker of the House Mark Ferrandino

Mark Ferrandino, ending his term as Speaker of the Colorado House of Representatives this year, has made history in too many ways to count. As the first openly gay Speaker of the House in Colorado’s history, Ferrandino presided in 2013 over the long-sought passage of civil unions legislation. This year, Ferrandino has been invaluable in defending the gains made in 2013, and pushing forward with this year’s progressive agenda of economic growth, disaster recovery, and funding education. Republicans and Democrats alike have praised Ferrandino’s steady and fair leadership this year.


5. Legislators seeking higher office

For a host of reasons, conservative incumbent legislators seeking higher office failed to achieve their objectives. Sen. Greg Brophy’s bid for governor fizzled, Rep. Amy Stephens, Sen. Owen Hill, and Sen. Randy Baumgardner failed to gain any traction in their brief campaigns for the U.S. Senate, and Rep. Mark Waller’s run for Attorney General fell apart after faring poorly at the Republican state assembly. In some cases these were simply unqualified candidates, but legislative experience isn’t the plus for Republicans seeking higher office that it once was–mostly because the extreme GOP grassroots can’t stomach the compromises necessary to effectively govern.


6. State employees

Through the Great Recession, Colorado’s state employees worked without a raise for years. Colorado public employees make less than their counterparts in the private sector, and as the state’s largest employer, state employee income has a direct impact on our economy. In the 2014-2015 budget, state workers are seeing base-building pay increases for the second year. Every day we rely on our road workers, corrections officers, firefighters, and other state employees, and it’s great to finally see them being recognized for their hard work.


6. The “clown car caucus”

From banning abortion to going after the non-problem of buying marijuana with public assistance, there was a group of conservative legislators that one could always count on to sponsor the most embarrassing legislation this year. Many of these legislators, such as Rep. Lori Saine and Sen. Vicki Marble, won their seats with help from the Rocky Mountain Gun Owners, which seems to not care if candidates are completely unqualified as long as they vote RMGO’s way on guns. Republicans hoping to put on a fresh face after years of electoral defeats in Colorado weren’t helped by the “clown car caucus” this year.


7. Women

With one of the nation’s highest rates of female representation, the Colorado General Assembly remains a model for the entire nation. This year, in addition to vital support for single moms and working families through child care assistance, progressives in the legislature beat back yet another attempt by the far right to ban all abortions in Colorado. Senate President Morgan Carroll become the second woman to serve in that leadership role. Conservatives keep trying every year, but thanks to our strong women and progressive leadership, the “war on women” stops cold when it arrives at the Colorado General Assembly.



7. Wage thieves

After years of trying, Sen. Jessie Ulibarri and Rep. Jonathan Singer’s bill to strengthen protections for Colorado workers from wage theft by employers finally passed the Colorado General Assembly. Many victims of wage theft don’t have the resources to fight a long, expensive court battle to win back their wages. Ulibarri and Singer’s bill will allow the Department of Labor to determine cases of wage theft directly, and help ripped-off employees get paid faster.

8. Transparency and good government

One of the bills already signed into law by Gov. Hickenlooper this year is legislation to make it easier for citizens and watchdogs to obtain government records through the Colorado Open Records Act. Rep. Joseph Salazar and Sen. John Kefalas teamed up to pass this important bill to prevent abuses of the system by public officials with something to hide.


8. Secretary of State Scott Gessler

This year’s legislative session was a disaster for Colorado Secretary of State Scott Gessler. Gessler made headlines after irresponsible budgetary decisions left his office millions of dollars in the red, compounding a record of bad judgment that already included the Independent Ethics Commission’s ruling that Gessler had “breached the public trust for private gain.” Gessler’s attempts to undermine and vilify Colorado’s election modernization laws fell flat, and his failed quest to uncover “illegal voters” has seriously harmed Gessler’s reputation under the Dome.


9. Colorado’s air and water

Gov. Hickenlooper’s work this year to pass important new air quality protections for oil and gas drilling is a prime example of bringing industry and conservationists together to make a positive step for everyone. New, dramatically steeper fines for oil and gas drilling violations passed by the legislature this year add teeth to the laws already on the books. And protections for water quality around uranium mining and processing sites will protect the public and the environment from harm as that industry responds to market demand. The job of protecting the public health and environment may not be over yet this year, but progress has undeniably been made.


9. Representative Jared Wright

Rep. Jared Wright’s brief legislative career has been marred by controversy, ever since details of his resignation from the Fruita Police Department led to attempts by fellow Republicans to get him out of the race. In the legislature, Rep. Wright further angered his fellow Republicans after leaving a loaded handgun in a Capitol hearing room–leading to calls for all legislators to check their firearms at the entrance to the Capitol like all other citizens must do. Since being pressured into not running for reelection, however, Rep. Wright has turned over a new leaf–frequently siding with progressives on issues related to public health and energy production. That has only made Wright more of a loser among his fellow Republicans, but Wright’s constituents may finally have a reason to appreciate his service.


10. Bipartisanship

Most of what we hear in the news today is about political controversies, and this year had its share. But it’s also worth remembering that around 95% of bills passed this year in the Colorado General Assembly had bipartisan support. On issues like disaster relief, job creation, and government transparency, more often than not there was no daylight between Republicans and Democrats. The issues that divide us sometimes define us, but other times we know how to come together as Coloradans to do what’s right–and that’s important to remember when emotions run high.


10. Palisade peaches

The Palisade peach lost out this year in a bid to become the state’s official fruit. Elementary school student Nick Babiak made a strong effort this year lobbying in favor of a bill to designate Palisade peaches as the state fruit, but was thwarted by opposition from the Rocky Ford Growers Association. Progressives stand with Nick Babiak and with the finest peaches grown anywhere, and hope 2015 will be the year that Palisade peaches finally receive their due.

BREAKING: No Local Control Compromise This Session

UPDATE #2: Conservation Colorado's Pete Maysmith:

Conservation Colorado Executive Director Pete Maysmith released the following statement today on the failure to reach an agreement on legislation to enable local governments to have a say over heavy industrial drilling and fracking in their neighborhoods and communities.

“Coloradans concerned about the impact of drilling and fracking in their communities are indebted to Majority Leader Dickey Lee Hullinghorst and Representative Sue Ryden today.  Both leaders worked tirelessly over the past several weeks to reach a compromise that protects Coloradans and their communities. As Colorado’s oil and natural gas boom continues, cities and counties must have the best tools at their disposal to craft protections that ensure drilling and fracking near homes, schools and neighborhoods is protective of our public health, environment and Colorado quality of life.

Conservation Colorado had hoped all parties could find the proper balance to address the heavy industrial drilling and fracking happening in communities across Colorado.  As the session ends without resolution to these important issues, Coloradans will have to consider if there are alternative forums to protect Coloradans and hold the industry accountable for their impacts on our communities."


UPDATE: FOX 31's Eli Stokols:

Without a legislative compromise, it’s all but certain that a series of ballot measures that would allow local communities to ban fracking outright will continue on a path toward the November ballot.

The measures, which are being financed by Congressman Jared Polis, D-Boulder, go much further than the proposed legislation that was in the works, which would have merely allowed cities and counties control over setbacks (how far wells must be set back from homes and schools) and inspections.

Polis had been willing to drop his ballot measures if lawmakers had reached a deal, according to numerous sources involved in the negotiations; although Republicans, many of whom were open to a compromise, didn’t trust that that would have been the case.


Photo courtesy Rep. Jared Polis

Photo courtesy Rep. Jared Polis

Press release from Colorado House Democrats breaks the news–there will be no compromise legislation giving local governments greater regulatory control over oil and gas drilling this session. Barring the extraordinary, this likely ensures constitutional measures on this hotly controversial subject are headed to the statewide Colorado ballot this fall:

Rep. Su Ryden (D-Aurora) and Majority Leader Diecky Lee Hullinghorst (D-Boulder) announced today that negotiations intended to harmonize state and local authority over oil and gas development have made progress but failed to produce an agreement in time to introduce a bill in the 2014 session. 

Here is a joint statement by Rep. Ryden and Rep. Hullinghorst: 

“Addressing Colorado citizens’ concerns about the impacts of oil and gas development on their lives and their communities is a top priority for us as policymakers. To address those concerns, we have been involved in extensive discussions involving a variety of stakeholders, incuding other legislators, the conservation community, oil and gas operators and the Hickenlooper administration.   

“Those discussions focused on harmonizing local and state authority in regards to energy production. It is of critical importance to people across this state to balance local communities’ ability to act to protect the health, safety and welfare of Colorado families while also creating a consistent and predictable regulatory framework that allows for responsible energy development. 

“Our conversations have been productive, but we haven’t yet struck an accord with all of the stakeholders, and we’ve run out of time in this session to pass consensus legislation.   
“We want to thank all those who have put their time and energy into the conversation, and hope that all involved and other interested parties are ready to continue in a good-faith dialogue about how to meet the reasonable expectations of local communities impacted by energy development as well as the needs of operators. We hope we will continue moving toward these shared goals.” 

We'll update with further developments shortly–this may not be the last word.

Post story exaggerates GOP unity this election cycle

(Promoted by Colorado Pols)


I was all set to write a blog post this morning about Scott Gessler saying on the radio that his Republican gubernatorial opponents are all losers, including Mike Kopp who, Gessler said, presided over the Republicans' disastrous legislative-election collapse in 2010. Gessler told KNUS talk-radio host Jimmy Sengenberger a couple weeks ago:

“If you want to have the same results that we’ve had in the past, just do the same thing… I’ve won a state-wide election. You know, Tom Tancredo is a good man, he has not won one. Bob Beauprez is a good man, he has not won one. Mike Kopp is a good man. When he ran the state Senate Majority Fund, which was the 527 to support senators in 2010, we didn’t win any of the competitive races then either. I think we need to stop looking to the past and looking instead to the future.”

But then I saw Denver Post reporter Lynn Bartels' article about all the "unity" among Colorado Republicans this election cycle. Bartels reported:

Although there's a four-way race this year for the GOP nomination for governor, [GOP State Chair Ryan] Call & Co. so far have done an effective job cajoling the candidates to aim their potshots at Democratic Gov. John Hickenlooper and not each other.


Rep. Jared Wright Goes Full-on Rogue In Career’s Final Days

Rep. Jared Wright (R-Fruita).

Rep. Jared Wright (R-Fruita).

​"One-and-done" GOP Rep. Jared Wright (R-Fruita) is ending his second and final legislative session with quite a flourish, as the Grand Junction Sentinel's Charles Ashby reports:

Rep. Jared Wright doesn’t care what the Grand Junction Area Chamber of Commerce thinks about a bill he’s backing on uranium mining.

The Fruita Republican is co-sponsoring a bill with a Boulder Democrat, Rep. KC Becker, aimed at protecting the state’s groundwater supply from radioactive contamination…

While the bill primarily is aimed at helping residents around a Superfund site near Canon City, some Republicans fear it is overly broad.

We've followed Rep. Wright's stormy one-term career as an elected legislator, which almost never got off the ground after revelations about his departure from the Fruita Police Department and his questionable personal financial troubles sent his Mesa County GOP benefactors running for the proverbial exits. Despite that rocky start, as a fairly reliable Republican vote in the General Assembly, we think Rep. Wright might have gotten a pass to run for re-election–before a disastrously idiotic mistake, leaving a loaded handgun in a legislative committee conference room, made him an unacceptable liability to his fellow gun-toting Republican legislators. Not long after that incident, Wright held a "shotgun press conference" announcing he would not seek re-election and endorsing his erstwhile GOP primary opponent.

Great movie.

Great movie.

But since then, we've seen flashes of a whole different Rep. Wright. Wright was the only House Republican to vote in favor of a bill to study the health effects of oil and gas development in several Front Range counties, voicing arguments in favor of the legislation that made surprisingly good sense. Likewise, with the bill he's co-sponsoring with Democrat K.C. Becker on uranium groundwater contamination, Wright is articulate and on point.

Too much so for his Republican colleagues:

“Representative Coram, I respect your expertise, I just happen to disagree with you on this issue,” Wright said. “I represent an area that abuts a quarter of your district and I don’t see this resulting in job loss.”

“With all due respect, Representative Wright, your district came out in opposition,” Coram added. “The Grand Junction chamber of commerce came out in opposition. Club 20 is in opposition. I don’t know who you’re talking to in your district, but the people who have talked to me have certainly been in opposition.”

“I represent the people of my district, the people of the state of Colorado, Representative Coram. Not one group or organization,” Wright countered. [Pols emphasis]

Rep. Wright has given us lots of material in only two years on the Colorado political radar, most of it in the form of schadenfreude. Here in what are effectively the last few days of his political career, with all the pressure off, no benefactors to please, nothing left to lose, he might actually be just a little bit inspiring.

Replacing Racist Lady in HD-35: “Sustainability Scares Me” Dude

We talked at the end of March about the Republican candidate in Colorado House District 35, an open seat being vacated by term limited Rep. Cherilyn Peniston, named Maria Weese. Weese's Facebook profile revealed a long history of unapologetically racist views, complaining about how "the heat has really been turned up by the Blacks in this country," and "the wagons circling around Obama led by the Blacks…[and] minorities getting government checks in the mail," among plenty of other disqualifyingly out-of-the-mainstream statements.

We've just learned that Weese has decided in the wake of these disclosures not to run for the legislature. Given that she was very likely about to become the next Nate Marshall, the openly racist Republican House candidate forced off the HD-23 ballot, this was a very sensible decision–whether made by her or (more likely) Republicans at a higher strategic level.

The only remaining problem for the GOP in this narrowly-averted disaster? That would be Weese's replacement!

Back in 2012, we introduced readers to then-Westminster City Council candidate Michael Melvin, a gruff-sounding Tea Party "small government" type running on a platform opposed to the redevelopment of the former Westminster Mall property. Melvin's lecture in a debate on the dangers of "sustainability" (above) was one of the funniest clips to emerge from any municipal race that year–transcribed once again for the record: