Mark Hillman’s Capitol Review blog/newsletter today joins the rising chorus of commentators speaking out against the Mullarkey Majority’s most recent blatantly unconstitutional ruling - and piling-on power grab - in Lobato v. State of Colorado last Monday.

In an audacious power grab, the Colorado Supreme Court recently embraced, by a 4-3 decision, a judicial doctrine that would relegate the other two branches of government - and the voters - to a perfunctory role.

The high court’s activist majority used Lobato vs. State not only to intrude on the legislature’s constitutional authority to determine funding for public schools; it also self-servingly suggested that no policy decision is off-limits to judicial review. [emphasis added]

So much for separation of powers, consent of the governed, or checks and balances.  In fact, the Lobato ruling leads to the obvious question:  “What’s left to check or balance the court?”

Indeed.  As oft noted previously in this space, the Mullarkey Majority recognizes no constitutional constraints, no limits to its untrammeled authority, no checks or balances to its power - in their view, the law means “just what I choose it to mean - neither more nor less.”  This “Through the Looking Glass” worldview has precious little in common with the justice’s sworn duty to uphold the rule of law - and support (not dismantle) the Constitution.

Hillman continues: “the supreme court’s majority selectively quoted and distorted the law and its own precedent.  Even more significantly, the majority argued that courts can render judgments even when the law is silent, provides no quantifiable standard or confers specific authority to another branch of government.”

The Mullarkey Majority’s specious arguments and semantic shenanigans are belied by the clear wording and explicit direction of the Constitution itself, as noted in the dissenting opinion, which “argues that, when the constitution says “the general assembly shall . . . provide for . . . a thorough and uniform system of free public schools,” authority is clearly conferred upon the legislature and not the courts.”

 Hillman closes with a summary of what makes a good judge - as contrasted with the unjust justices of the Mullarkey Court - and notes the remedy available to “We The People” as citizens of Colorado:

That’s the important distinction between originalist judges - who believe their job is to apply the laws as written and to seek guidance from those who authored them - and activist judges - who believe their job is to twist the law to suit their own political agenda and to consult unelected, unaccountable academics for inspiration.

Ironically Bender, Mullarkey and Martinez stand for retention in November 2010.  Perhaps then voters will exercise their own “checks and balances.”

Be a part of the “checks and balances” envisioned in our constitutional form of government. Defend YOUR Constitution, and exercise YOUR right to vote “NO” on retaining the four unjust justices of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and 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 homes and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, not rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices in 2010!

“A powerful coalition…  is pushing to undermine democracy and the separation of powers in Colorado. And thanks to a decision last week by the state Supreme Court, it just might succeed.”

So begins Denver Post editor/columnist Vince Carroll’s latest piece in the Sunday Denver Post.  Carroll has long been one of the very few “journalists” at the Post (since his tenure on the late, lamented Rocky Mountain News) who consistently “gets it” on the flagrantly unconstitutional rulings of the Mullarkey Majority (witness his scathing editorials on the “Mill Levy Tax Freeze” decision last March).

Although we’ve been under the illusion that ”Colorado had escaped the appalling spectacle of judges usurping the power of the purse from elected officials”, in reality the Mullarkey Court has not only enabled a litany of new taxes and “fees“, but they’ve been the behind-the-scenes architect of taxation and spending policy that goes beyond what even our spendthrift legislature has imagined.

As Carroll concludes, “we are one step closer to education funding by judicial fiat. By comparison, Denver’s ordeal with court-ordered busing may seem like child’s play.”

And, of course, once courts begin to make policy, it is difficult to stop.  (Excerpted from Lobato v. State of Colorado, dissenting opinion.  Emphasis added).

We are witnessing a slow-motion coup d’etat in Colorado by the Mullarkey Majority of the Colorado Supreme Court.  In disregarding the proper judicial obligation to uphold the law (NOT to make policy), the Mullarkey Court, unrestrained, is seizing more and more power. When these unjust justices rule from the bench, they really RULE from the bench…

This continuing power grab CANNOT STAND.  Exercise your rights (while you still have them) - hold the unjust justices of the Mullarkey Majority accountable to the Colorado Constitution and the rule of law.  Exercise YOUR right to vote “NO” on retaining the four unjust justices of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your rights: your right to vote on tax increases, your right to defend your homes and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, not rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your voice (Sound Off!), your contributions, and “NO” vote on retaining unjust justices in 2010!

Clear The Bench Colorado Director Matt Arnold spoke today (Friday, 23 October) before a committee hearing on the Colorado Taxpayer’s Bill of Rights (TABOR) - the following is a summary of his remarks.

(Note that the following does not purport to be a word-for-word transcript; a video of the presentation will be available within a few days).

“Thank you for the opportunity to address the panel on this important subject.

A previous speaker today, Jonathan Williams, referring to the Maine initiative which mirrors TABOR, stated  ”It means very little unless it’s constitutional.”

Another previous speaker, Dr. Barry Poulson, decried the “stealth erosion” of TABOR by various pieces of legislation and executive decrees.

What Dr. Poulson referred to implicitly, but did not state explicitly, was that the examples he cited of TABOR being undermined - the “Mill Levy Tax Freeze“, the Tobacco Tax, the veritable explosion of new and higher “fees” (the most notorious of which is the Colorado Car Tax), and finally, the elimination of the 6% limit on growth of general fund expenditures (Arveschoug-Bird) - were ALL made possible only through the actions of an activist, partisan Colorado Supreme Court.

ALL of these increases in taxation, and elimination of Colorado citizens’ constitutional rights, are the result of rulings by the Colorado Supreme Court - and one case that was NOT brought.

First, the “Mill Levy Tax Freeze” case not only sanctioned a law resulting in an unconstitutional increase in property taxes.  Also buried in the ruling - which was briefed to the Joint Budget Committee on April 1st - was language effectively eliminating previous constitutional protections for a large list of several existing tax credits and exemptions.  It was literally hours after the ruling that a new tax proposal - which eventually became HB1342, the Tobacco Tax increase - was proposed.

Hearing about this the next day, I thought that it had to be some kind of April Fool’s joke.  Unfortunately, the joke was on Colorado citizens - and the punchline is likely to be replayed, over and over, next session as the legislature attempts to “balance the budget” by eliminating existing tax credits and exemptions.

The explosion of new and higher “fees” is the result of another Colorado Supreme Court decision, which effectively eliminated the distinction between taxes and “fees” for the purpose of collecting (and spending) revenue - while maintaining the loophole allowing “fees” to be imposed without a vote of the people.

The upshot of all this?  Well, there’s some good news, and some bad news.  The good news is that, thanks to the shreds of TABOR still in existence, the Colorado Legislature will almost certainly NOT propose any new taxes next session.  The bad news is that they won’t have to - they’ll just call it a “fee“, or a “freeze“, or eliminate existing tax credits or exemptions.  Sadly, your wallet won’t be able to tell the difference.

Another powerful - and extremely dangerous - implication of these Colorado Supreme Court rulings is the case that was NOT brought last year.  When the General Assembly repealed the Arveschoug-Bird 6% limit on general fund spending increases (SB228), and Governor Ritter signed the bill into law, they did so with the full knowledge that they were violating the Colorado Constitution.  It was well understood - documented in a legislative brief prepared by the General Assembly’s own Office of Legislative Legal Services - that Arveschoug-Bird was “incorporated” under TABOR limits, and could NOT be repealed without a vote of the people.  The Legislature, and the Governor, proceeded to repeal this limit fully knowing that they were violating the Constitution because they KNEW that an activist, partisan Colorado Supreme Court actively hostile to TABOR - which is part of the Constitution that they are sworn to uphold - would “have their back.”  No one bothered to challenge this blatantly unconstitutional law because the fix was in - any lawsuit would have NO prospect of success with the Mullarkey Majority in power on the Colorado Supreme Court.

This is an extremely dangerous situation - a government emboldened to act outside the law, backed by a state Supreme Court actively hostile to the very Constitution it is sworn to uphold and defend.  The resultant undermining of the rule of law puts us on a very frightening path…”

We are witnessing a slow-motion coup d’etat in Colorado by the Mullarkey Majority of the Colorado Supreme Court.  In disregarding the proper judicial obligation to uphold the law (NOT to make policy), the Mullarkey Court, unrestrained, is seizing more and more power. When these unjust justices rule from the bench, they really RULE from the bench…

This continuing power grab CANNOT STAND.  Exercise your rights (while you still have them) - hold the unjust justices of the Mullarkey Majority accountable to the Colorado Constitution and the rule of law.  Exercise YOUR right to vote “NO” on retaining the four unjust justices of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your rights: your right to vote on tax increases, your right to defend your homes and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, not rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your voice (Sound Off!), your contributions, and “NO” vote on retaining unjust justices in 2010!

After searching far and wide for recent examples of humorous content relevant to our Supreme Court (and believe me, after a long and busy week, I needed the laugh), I came up empty.  Apparently, it’s been a very unfunny week for the Colorado judiciary.

Looks like we’ll have to generate our own humorous content for the site - and yes, we do have some great projects in the works, but they’re not quite ready for prime time.  Check back next week, though…

Meanwhile, courtesy of designer/illustrator/cartoonist Benjamin Hummel, we reprise his depiction of the straw that broke TABOR’s back: the “Mill Levy Tax Freeze” ruling of 16 March 2009:

The infamous “Mill Levy Tax Freeze” ruling did more than just (unconstitutionally) raise property taxes; it also opened the door to millions in new taxes, some of which were proposed literally hours after the legislature was briefed on the ruling before passing into law in the last legislative session.

Added to the stealthily-issued (the day before national elections) ruling upholding an outrageously expansive definition of “fees” (replacing “taxes”) and the later unconstitutional repeal of the Arveschoug-Bird spending limit, and TABOR has indeed been “bumped off the cliff” by the Mullarkey Court.

Wow - I guess it has been a pretty unfunny week after all.

Don’t let the Mullarkey Court throw grandma (er, TABOR) off the cliff.  Ditch the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) by voting “NO” to retain these unjust justices in 2010!  Let’s Clear The Bench, Colorado!

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

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.

“Gov. Bill Ritter and lawmakers Wednesday unveiled a deal to remove a key restraint on future state budgets…”

That “key restraint”, otherwise known as the Arveshoug-Bird provision, limits growth in the state’s general fund to 6% per year.  Any funds collected in excess of that limit are allocated to transportation and other construction or maintenance needs.  Arveschoug-Bird is statutory law - CRS 24-75-201.1(a)(II) through (VII) - which would normally leave it open to modification or outright revocation by the legislature (which clearly doesn’t like limits on its ability to spend, spend, spend).  Ritter, also no fan of spending restraint, welcomed the deal to eliminate “restrictive fiscal handcuffs” on the state budget.

HOWEVER - the passage of TABOR (the Taxpayer’s Bill of Rights) in 1992 “constitutionalized” existing spending limits (including Arveschoug-Bird), explicitly incorporating them into the state constitution:

Article X, Section 20(1) of the Colorado Constitution explicitly states that  “Other limits on district revenue, spending, and debt may be weakened only by future voter approval” and “Its preferred interpretation shall reasonably restrain most the growth of government.”  This directive is clear: weakening spending limits must be submitted to a vote of the people.

Despite recent attempts led by notoriously partisan ex-justice Jean Dubofsky to take a “new look” at the Arveschoug-Bird limits (with the attempt of undermining or circumventing the clear letter of the law), the “constitutionalization” of the limit under TABOR has been a long-established legal interpretation.  In fact, a November 2004 Memorandum from the General Assembly’s own non-partisan Office of Legislative Legal Services (OLLS) laid out the “general rules” for interpreting the application of Arveschoug-Bird and incorporation under TABOR, and found that it IS a limit on spending:

Question #9.  Is the Arveschoug-Bird limit a limit “on district revenue, spending, [or] debt” which is referred to in [TABOR]?

Answer: Technically, the Arveschoug-Bird limit is a limit on increases in general fund appropriations, not on revenue or spending. However, a court would probably conclude that, for purposes of [TABOR], the Arveschoug-Bird limit is a limit on spending for the following reasons:

- Spending and appropriations are closely related concepts. Agencies normally cannot make expenditures unless they have an appropriation, and placing limits on appropriations indirectly limits spending.

- The General Assembly defined “expenditure” in S.B. 93-74 as “the appropriation or disbursement of any state general fund or cash fund moneys for any expense incurred by the state”. Section 24-77-102 (4), C.R.S.

- The proponent of [TABOR] stated, prior to the 1992 election, that the statutory 7% limit then in effect was the kind of limit that could not be weakened except with voter approval.

- Courts will construe constitutional language to give it a natural and obvious significance, as opposed to a narrow, literal, or technical meaning.

Question 10. Would a modification of the Arveschoug-Bird limit “weaken” the limit, thus requiring submission to the voters?

Yes. The plain meaning of the verb “to weaken” is to lessen the strength of something, or to reduce it in intensity or effectiveness. Therefore, while we have certainly not foreseen all the possible ways of modifying the Arveschoug-Bird limit, an amendment to Arveschoug-Bird which permits greater expenditures of funds than would have been allowed under the current limit appears to weaken the limit.

“Supporters and opponents of the deal announced Wednesday all agree on one thing: The bill is likely to end up in court.”

Gov. Bill Ritter and his accomplices in the legislature (including Don Marostica, R-Loveland) are trying to pull a fast one on the citizens of Colorado, flouting their duty to the people and to the people’s law, the Colorado Constitution.  Ritter, Marostica, and their ilk are clearly counting on the current majority on the Colorado Supreme Court  to back their play, as they did by upholding Ritter’s Mill Levy Tax Freeze. 

For them, “the end justifies the means, and that the supporters are placing more faith in the Colorado Supreme Court to ignore constitutional mandates than they are placing in the voters to make their own decisions. The recent mill-levy decision by the court indicates that such faith may indeed be well placed.

Don’t allow this court to continue to be accomplices after the fact in taking away more of your rights.  Vote “NO” on retaining the 4 unjust justices - Mullarkey, Bender, Martinez, and Rice - in power in 2010.