Colorado Supreme Court prepares additional assault on taxpayer rights, hearing another stealth tax increase case

Colorado taxpayers have taken a real beating over the last several years, courtesy of several Colorado Supreme Court rulings which have set aside the clear language of the Colorado Constitution (Article X, Section 20 – the Taxpayer’s Bill of Rights) to enable a series of unconstitutional tax increases by other names; some of the most prominent examples:

• ‘Mill Levy Tax Freeze‘ property tax increase (calling the tax increase a “rate freeze”)
• ‘Dirty Dozen‘ tax increases (2010) and the 2009 tobacco tax increase (calling tax increases “elimination of Tax Credits & Exemptions“)
• ‘Colorado Car Tax’ (enabling tax increases by calling them “fees” instead of taxes)

Another assault on taxpayer rights – and a potential blow to local governments, since the state government is proposing to take revenue away from localities – is brewing with the Colorado Supreme Court’s announcement Monday that it will review (and potentially reverse) the finding of the Colorado Court of Appeals that a severance-tax increase violates the Colorado Constitution (Article X, Section 20 – the Taxpayer’s Bill of Rights).  As announced on the Law Week Colorado website yesterday (Monday) (“Colorado Supreme Court Will Hear Coal-Severance Tax Case“),

The Colorado Supreme Court announced on Monday that it will review the Court of Appeals’ February decision that the state’s coal-severance tax violates the Taxpayer Bill of Rights, or TABOR. The case was a rare win in the appellate courts for TABOR.

It would be an even rarer win for Colorado taxpayers (in fact, it would be unprecedented – since the current Mullarkey Majority has NEVER found in favor of taxpayer’s rights despite the clear language of the Colorado Constitution (Article X, Section 20 – the Taxpayer’s Bill of Rights) in over a dozen major cases) if the Colorado Supreme Court does not overturn the lower court.

It would continue a pattern of politicized rulings by the incumbent majority on the Colorado Supreme Court overturning lower courts who faithfully apply the law and support the Constitution, as written.  The lower court (Colorado Court of Appeals) got it right; outgoing Judge Sean Connelly (a recent – 2008 – Ritter appointee who is returning to private practice, one of several well-qualified, non-political judicial appointments the governor has made, to his credit) issued a superbly clear and concise opinion (which, as the Law Week article pointed out, could be essentially reduced to a few simple sentences):

We hold that TABOR precludes the challenged coal severance tax adjustments. Our holding is based on a simple syllogism:

(1) TABOR prohibits increasing tax rates without voter approval. Colo. Const. art. X, § 20(4)(a); Nicholl v. E-470 Public Highway Auth., 896 P.2d 859, 867 (Colo. 1995).

(2) Applying the statutory formula increased the coal severance tax rate (initially from $0.54 to $0.76 per ton) without voter approval.

(3) Therefore, TABOR was violated.

So simple, even a caveman could understand it.

Unfortunately, the Mullarkey Majority on the Colorado Supreme Court has consistently demonstrated a more sophisticated view of the Colorado Constitution – redefining clear language and twisting logic to reach a pre-determined outcome in pursuit of a personal, political agenda.  The incumbent majority has demonstrated time and again that it is less interested in upholding the law (acting as fair and impartial referees, the proper role of a judge) than in advancing an agenda (as players, supporting their ‘team’).

Ironically (or perhaps not so ironically, given the role on the Supreme Court Nominating Commission played by retiring Chief Justice Mary Mullarkey, who announced in June that she would retire rather than be held accountable by Colorado voters this November), the lead attorney in advocating for the violation of taxpayer’s rights in this case is none other than:

Deputy Attorney General Monica Marquez, one of three finalists for the upcoming vacancy on the state Supreme Court, [who] handled Court of Appeals briefing and oral arguments for the state.

Marquez has actively advocated on several occasions against Colorado taxpayers; in addition to this case, she also argued that “fees” are not taxes in the Barber v. Ritter case, advocated in favor of the 2003 judicial takeover of legislative redistricting authority in the Salazar v. Davidson redistricting case, and has sought to restrict the 1^st Amendment rights of citizens seeking to address ballot issues in recent and ongoing cases.  If appointed to the Colorado Supreme Court, she would likely have to spend a considerable portion of her first term (the ‘probationary’ initial 2-year term for any new judge) recusing herself from many cases coming before the court (or be guilty of massive conflict of interest).

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