Clear the Bench Colorado

Breaking News: the U.S. Supreme Court just reversed Sotomayor (Monday, 29 June 8AM MDT)

The Supreme Court has ruled that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

This decision must be considered a victory for the rule of law over “preferred outcome” jurisprudence.  The ruling majority in the case, Ricci vs. DeStefano, upheld the rights of New Haven firefighters under Title VII of the Civil Rights Act of 1964, which “prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin, 42 U. S. C. §2000e-2(a)(1).”

The city of New Haven, CT had refused to certify the results of an examination given to firefighters seeking to qualify for promotion once it became apparent that none of the black candidates qualified, “based on the statistical racial disparity” and responding to public pressure.  The Supreme Court found

There is no genuine dispute that the examinations were job-related and consistent with business necessity. The City’s assertions to the contrary are “blatantly contradicted by the record.” (p.33)

The City, moreover, turned a blind eye to evidence that supported the exams’ validity. (p.33)

The majority ruling was clear in upholding the rights of ALL Americans to equal treatment under the law:

The record in this litigation documents a process that, at the outset, had the potential to produce a testing procedure that was true to the promise of Title VII: No individual should face workplace discrimination based on race. Respondents thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the test itself and its administration. As we have discussed at length, the process was open and fair. (p.37)

The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. (p.38)

Racial discrimination is abhorrent to the principles expressed so eloquently in the 4th of July 1776 American Declaration of Independence (which must be seen as the philosophical source of our system of laws) and enshrined in the U.S. Constitution: that ALL men are created equal, and deserve equal treatment - as individuals, not categories or representatives of groups - before the law.  Supreme Court Justice Antonin Scalia makes this point explicit in his concurring decision:

“[T]he Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson, 515 U. S. 900, 911 (1995)  (p.40)

However, some ‘justices’ apparently don’t see things this way, viewing people as mere manifestations of group (race, class, gender, etc.) identity, to be advanced (or denied advancement) due to their identification or affiliation, based on the sympathies (or “empathy“) of judges interpreting the law.

 The logic (or lack thereof) in Justice Ruth Bader Ginsburg’s dissent is illuminating:

The white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them. (p.55)

Justice Ginsburg’s stance - that “white firefighters” have no “vested right” in fair and equal application of the law and due process in applying for promotion, only because no one else received preference instead - is ludicrous.  Moreover, her position damages not only the “white firefighters” (and Hispanics) denied promotion as a direct result, but ALL firefighters and citizens of New Haven.  In the six years since the city rejected the results, NO firefighters have been promoted to the rank of Lieutenant or Captain AT ALL.  This cannot be of benefit to the firefighters (even those not making the cut) or anyone in the city.  Typical of preference-based treatment, everybody suffers.

Justice Samuel Alito’s opinion concurring with the majority decision - which also exposes the undue influence exerted by political allies of New Haven Mayor DeStefano in throwing out the test results - provides perhaps the best summary of the underlying principles of the case:

Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision.

The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39. But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law-of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.  (p.54, emphasis added)

Whether in the Supreme Court of the United States, or in Colorado’s Supreme Court: citizens have a right to demand evenhanded enforcement of the law.  The “Mullarkey Majority” in Colorado has repeatedly demonstrated incapacity or unwillingness to live up to this standard.  We demand better; vote “NO” on retaining the unjust justices of the Mullarkey Court (Justices Bender, Martinez, Rice, and Chief Justice Mullarkey) in 2010.  Let’s Clear The Bench, Colorado!

Restoring accountability to Colorado’s judiciary, upholding the Rule of Law, and defending YOUR rights as citizens and taxpayers against the worst abuses of the Mullarkey Court is serious business.  Extremely serious - but that doesn’t mean that we can’t point out some seriously funny aspects, too.

In 2008, Colorado’s very crowded ballot not only featured a dizzying array of candidates for elective office, but also a veritable plethora of judges (in my area, 17 up for retention, including two Supreme Court justices - one of whom got my “YES” vote) and an alphabet soup of ballot initiatives.

Most of those, including amendments to gut TABOR and increase taxes, were rejected by Colorado voters, but some passed - including Amendment 54, the “Clean Government Initiative.”

Now, a Denver district judge has stopped the implementation of that constitutional amendment - which passed by a vote of the citizens of Colorado - by granting a “temporary injunction” against enforcement of limits on campaign contributions by “no-bid” government contractors:

The amendment prevents anyone tied to an entity that receives a no-bid government contract greater than $100,000 from giving to political parties or candidates at any level.

Once again, a judge has acted on the behalf of special interest groups intent on “gaining favor and contracts from public officials” through political contributions - “probably triggering a flood of campaign contributions” from those seeking to curry favor while the ‘temporary injunction’ remains in effect.

So how does this relate to puppies?  As we are reminded by an article in the June 24th Westword, “Colorado’s puppies and kitties at risk after Amendment 54 ruling,”

“Last November, DMYR reps upset by what they saw as illogical ads opposing 54 and two other amendments, 47 and 49, decided to come up with equally absurd salvos representing the other side of the issue.”

Then-DMYR President and current PeoplesPressCollective correspondent T.L. James created the ads poking fun at the opposition’s hyperbole at the time, and now notes that

“from TABOR to transparency, it doesn’t matter what you vote for…” special interests,  politicians, and “corrupt collaborators in business… will just find ways to get around it or nullify it in the legislature and the courts.”

Despite the apparently high-minded rhetoric, many Colorado judges (including the Mullarkey majority on the Colorado Supreme Court) have been extremely selective (some might say, capricious or biased) in applying First Amendment protections to political speech, campaign contributions, and ballot initiatives: favoring some, crushing others, depending on their personal preferences.

It’s too bad that we can’t send the judiciary a message by voting to non-retain four Colorado Supreme Court justices (e.g. Justices Bender, Martinez, Rice, and Chief Justice Mullarkey) in the 2010 elections.

Oh wait! YES WE CAN!

Help save Colorado’s puppies and kittens by fighting back against our state’s unjust justices…  Support Clear The Bench Colorado with your voice (Sound Off!), your contributions, and your “NO” vote on retaining unjust justices in 2010!

Come back every week for another edition of the Friday Funnies at Clear The Bench Colorado!

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Remember, Freedom isn’t Free - support the only grassroots campaign to restore accountability to our judiciary and uphold the Constitution and rule of law in Colorado.  Vote “NO” on unjust justices in 2010!

In an otherwise excellent article in today’s Denver Post Perspective section, columnist Vince Carroll, decrying legislators and others who play the “Blaming TABOR” game as an excuse for failing to balance the state budget, makes one glaring error.  He correctly calls Colorado Springs Democrat John Morse to account for getting it wrong on possible approaches to balancing the budget:

I had called Morse because he is an outspoken member of a committee of lawmakers and other leaders charged with finding long-term fixes for the beleaguered state budget. And it didn’t take him long to home in on the nub of the problem as he sees it. Every other state, Morse says, has four choices when confronting a budget shortfall: raise taxes, borrow, hike fees or “cut valued public services.” Colorado, thanks to its constitution, has only “two of those options.”

What Morse means is that the Colorado legislature has only two options (or 2 1/2, if you properly classify certificates of participation as borrowing). The Taxpayer’s Bill of Rights does in fact allow voters to raise taxes - that irksome direct democracy business, of course. But to Morse, “that is the most offensive part of TABOR.”

Offensive or not - and I love that particular check on government ambition - voting on taxes isn’t going away. Most Coloradans still support this grassroots power, as Morse concedes, and even our Supreme Court wouldn’t dare invent a rationale to circumvent it.

 ”Voting on taxes” - a right reserved to the people of Colorado by Article X, Section 20 of the Colorado Constitution (TABOR) - is not only popular, IT’S THE LAW.

Carroll’s assertion that “even our Supreme Court wouldn’t dare invent a rationale to circumvent it” is incorrect - as he himself has pointed out on numerous occasions, including later in the article.  After all, what else was the “Mill Levy Tax Freeze” but a “tax policy change directly causing a net tax revenue gain to any district“) as pointed out by Justice Allison Eid in her scathing (and correct) dissent to the majority ruling?

Our current Colorado Supreme Court Majority, let by Chief “Justice” Mary Mullarkey, DOES indeed “Dare to be Stupid” - er, “dare” to trash TABOR, “dare” to circumvent the Colorado Constitution, and “dares” to violate YOUR rights.  They have in fact been growing MORE “daring” with each opportunity…

However, these unelected judges are NOT unaccountable.  Four of the worst offenders - Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mullarkey herself - must face the voters and stand for retention in 2010.  They NEED YOUR APPROVAL to be able to continue taking away your rights - DON’T GIVE IT TO THEM!

Vote “NO” on these “unjust justices” in 2010!

Appearing as the guest speaker at the next Colorado Republican Business Coalition (CRBC) luncheon Friday June 19th at Brooklyn’s (9th & Auraria) from 1130-1:00, Clear The Bench Colorado Director Matt Arnold will discuss the grassroots movement to vote “NO” on retaining the four Colorado Supreme Court justices (Mullarkey, Bender, Martinez, and Rice) facing voters in 2010…

Matt will explain how the four justices subject to retention by voters in the 2010 election (Chief Justice Mary Mullarkey, and justices Michael Bender, Alex Martinez, and Nancy Rice) have betrayed the trust of the people of Colorado, neglecting the proper judicial function of upholding the law in favor of imposing their partisan political will.
Three prominent examples: 1) Upholding the Mill Levy Tax Freeze, which ignored and violated TABOR and cost $117 Million (and counting!) in additional taxes on homeowners who never voted on the question of tax increases; 2) Colorado’s own Kelo case, the “Telluride Land Grab“, which upheld the exercise of eminent domain by ANY home rule entity ANYWHERE in the state (not bounded by geography); and  3) The congressional redistricting case where the Court determined that “judicial redistricting is part of the definition of General Assembly, therefore we are justified in declaring ourselves part of the General Assembly for the purpose of conducting judicial redistricting.” 

The Court’s seizure of power is simply breathtaking.  In these and other cases, the Court violated the state Constitution, re-wrote or ignored legislation, and undermined the rule of law and government accountability to the people.

Colorado voters have an opportunity to restore some measure of accountability to our judiciary by voting “NO” on retaining these “unjust justices” - Mullarkey, Bender, Martinez, and Rice - in 2010.

Clear The Bench Colorado Director Matt Arnold is appearing on Rocky Mountain Radio this Wednesday, 10 June 2009 from 9-11PM.  Rocky Mountain Radio’s Bob Glass will interview Matt on why it’s time to restore accountability to our out-of-control Colorado Supreme Court, rein in their assaults on Colorado’s Constitution and the rule of law through their outrageous rulings (most prominently upholding the Mill Levy Tax Freeze and the Telluride Land Grab) and discuss the grassroots movement to oust 4 current Colorado Supreme Court justices who must receive voter approval in 2010 to retain their positions.

The show can be heard on 1060AM from Longmont, 1580AM from Colorado Springs, or online at thebigmoneystation.com.

Although the Colorado Supreme Court’s assault on our constitutional rights is unrelenting, even a crusading commentator needs a break from time to time.  This video clip by the insightful and ever-amusing Steven Crowder of PJTV is not only on-topic, but outrageously funny (in a sad but true way).

Today’s Denver Post headline trumpets the “loosening” of “Colorado’s fiscal knot” with the governor signing into law the repeal of the 1991 Arveschoug-Bird statute that had limited out-of-control legislative spending by capping the growth of the general fund at a reasonable rate of 6%/year.

However, political reporter Lynn Bartels (formerly of the late and lamented journalistic counterweight Rocky Mountain News) inadvertently gave the game away with her lead-in to the article:

Gov. Bill Ritter signed a landmark budget reform bill Wednesday, with supporters promising it is the start (to fixing a constitutional mess) that has Colorado headed toward a California kind of economic pickle.

OK, I added the parentheses around the dangling participle - to illustrate the point that Governor Ritter and the bill’s supporters have indeed promised that this bill does have Colorado “headed toward a California kind of economic pickle.”  Can’t say they didn’t warn you…

Spending limits such as TABOR - the Taxpayer’s Bill of Rights - and the Arveschoug-Bird measure are the only things that kept Colorado from sliding into the deep fiscal hole and “economic pickle” that is the state of California’s budgetary woes.  As Bartels points out towards the end of the article, “California is struggling to close a $24.3 billion deficit.”  Note that deficits don’t magically appear due to declining revenues - they are a direct result of the kind of unrestricted spending that TABOR and the Arveschoug-Bird measure were designed to prevent (or at least limit).

It is the natural inclination of politicians to promise the moon - anything to please constituent interest groups, in order to get elected - particularly when it comes to spending other peoples’ money.  Establishing spending limits (as any parent knows) is the only way to introduce some measure of control to protect the taxpayer’s wallet.

These measures are not only good policy - they are locked in to our state constitution, the highest law of the land (subject only to the U.S. Constitution).  At least, that was the case, until our out-of-control Colorado Supreme Court decided otherwise, substituting their word over written law.

The majority ruling in the Mill Levy Tax Freeze case only this Spring (16 March 2009) signaled loud and clear to Governor Ritter and the Democrat-contolled Colorado Legislature that it was open season on any provisions of the Colorado Constitution (such as TABOR) or statutory law incorporated into TABOR’s constitutional limits (such as the Arveschoug-Bird measure) that had previously shielded Colorado taxpayers from increased taxation and government spending.  It was only AFTER the current majority on the Colorado Supreme Court had cleared the way with this ruling (in March) that an emboldened Governor Ritter and his accomplices in the legislature moved to repeal Arveschoug-Bird through SB-228 (in April). (See my post at the time: Ritter, Legislators Assault Constitutional Spending Limits… Again)

So while it’s appropriate to be critical of Governor Ritter and the Colorado Legislature for acting to increase spending, it’s kind of the nature of the political beast; spending is what they do.  However, they could not do so without restraint until aided and abetted by the current majority on the Colorado Supreme Court.  As noted in the Post article,

House Majority Leader Mike May, R-Parker, opposed the change: “In essence, it’s like removing the spending limits on a credit card.”

May and other opponents also argue that the 6 percent limit was included in the voter-approved 1992 Taxpayer’s Bill of Rights, or TABOR, so it can’t be repealed without a vote of the people.

The Colorado Supreme Court once again aided and abetted in taking away YOUR right to a vote on this policy - in violation of the Colorado Constitution, and further undermining the rule of law.

The supposed adults in the room - the Colorado Supreme Court - have just handed over YOUR credit card to the shopaholic teenagers that are Colorado’s statewide executives and legislators.

Are you cool with that?  ‘Cause I’m not…

Don’t allow the current majority on the Colorado Supreme Court to continue taking away your rights (and your money). Vote “NO“ on retaining these “unjust justices” in office in 2010.

The recent nomination of Sonia Sotomayor to succeed retiring justice David Souter on the United States Supreme Court has generated increased scrutiny on the power of the judiciary to endorse and validate government seizures of private property.  Joining the notorious 2005 Kelo vs. New London case at the Federal level, and the outrageous Telluride Land Grab case decided a year ago yesterday (2 June 2008) here in Colorado, is a lesser-known ruling by Judge Sotomayor in 2006 (Didden v. Village of Port Chester).

A recent article by distinguished law professor Richard Epstein of the University of Chicago characterized Sotomayor’s ruling in this case as an even worse attack on property rights (and individual protections) than Kelo:

The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The “or else” was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow.

So Sotomayor and the Second Circuit essentially endorsed a thuggish extortion racket “pay-to-play” move by a small-time tinpot dictator controlling a local redevelopment district.  Having spent some time overseas, this sounds more like the kind of 3rd World corruption you’d find in some of the worst-governed corners of the globe, not the United States of America.  Or is that the new standard on the East Coast?  “Back to the Future” of Boss Tweed and machine-style politics?

As Epstein notes, “American business should shudder in its boots” - to say nothing of individuals owning homes (Kelo) or other property (Telluride) over which government casts a covetous eye.  When outright theft is justified in the name of law - who can respect the law?  We MUST restore accountability to our judiciary - and restore the rule of law - before it’s too late.

In Colorado, we have that opportunity - vote “NO” on retaining the unjust justices who perpetrated the Telluride Land Grab when they must face the voters in 2010.

In light of the recent ruling by the California Supreme Court to uphold the will of the people in amending the state constitution (despite a highly-resourced and publicized campaign to overturn, via judicial activism, a strong majority decision), it is useful to look back on the California experience at restoring some accountability to its judiciary as a result of voter recall of judges, as pointed out in a recent post on another site, the Colorado Index:

Yesterday, it was announced that the California Supreme Court honored its voters wishes.  Doubtless there were some on the court that wished they could vote the other way, given the liberal leanings of most lawyers, but they didn’t.
Why didn’t they?
A few decades ago, California had an out of control Supreme Court that routinely ignored the law, the constitution, and the people to the point that they provoked the public not to reconfirm them at election time.  Several justices, including Chief Justice Rose Bird were put out of office by the voters.
That results of that election instilled a discipline in the California Court that is missing here in Colorado. The Colorado Supreme Court has no respect for TABOR and has never ruled in its favor.  It routinely ignores the plain language of that amendment and did again two months ago.
In 2010, Colorado voters will have an opportunity to reassert their will by clearing the bench of four of the six justices who ignored the will of the voters.  I hope we are smart enough to take it.

Indeed.  Let it not be said that California voters are smarter than those of us in Colorado.  The current majority on the Colorado Supreme Court - led by Chief Justice Mary Mullarkey, aided and abetted by justices Michael Bender, Alex Martinez, and Nancy Rice, all of whom must face the voters in 2010 - are of the partisan, capricious ilk of California’s notorious Rose Bird.

Vote “NO” on retaining these “unjust justices” in office in 2010.