Barber v. Ritter
Colorado Car Tax (er, ‘FASTER’ vehicle registration “fee”) increase on trial this week
The Colorado Car Tax (er, “vehicle registration fee”) increase passed in 2009 (SB108, the so-called “FASTER” bill) is quite possibly THE most unpopular tax increase in Colorado history – made all the more repugnant by how it became law (exploiting a 2008 Colorado Supreme Court ruling which declared that “fees” don’t count as “taxes” to circumvent the constitutional requirement (under Colorado Constitution Article X, Section 20 – Taxpayer’s Bill of Rights, a.k.a. TABOR) to receive prior voter approval for any ‘policy change resulting in net revenue gain’ to the state).
After two years of legislative inaction failed to repeal or roll back the unconstitutional and unpopular tax increase, the ‘FASTER’ Colorado Car Tax was challenged in court as a violation of the Colorado state Constitution (specifically, Colorado Constitution Article X, Section 20 – Taxpayer’s Bill of Rights, TABOR).
That court challenge is on trial this week.
The court declined to grant Plaintiff’s Motion for Summary Judgment which was filed earlier this year, despite documenting the fact that the “”Colorado Bridge Enterprise” established under the FASTER legislation as a “TABOR-exempt business enterprise” (Ed. – see, “Life in the FASTER Lane – updates on the Colorado Car Tax“) fails to meet the constitutional standard to qualify for exemption from TABOR requirements.
Plaintiffs had the first shot at introducing and examining witnesses in the trial, which began Monday and continues into Wednesday (at least) this week.
Penn Pfiffner, in his capacity as Chairman of the TABOR Foundation and plaintiff, sent out an update to people on the TABOR Committee mailing list earlier today:
Five witnesses; two heroes.
Plaintiffs (us) get to go first. One central fiction to keep in mind is the scheme declares that as you drive over certain bridges on the highway system, you are paying tolls to do so; tolls which are collected through a “safety surcharge.” The first two witnesses were Ms. Chris Sammons and Willie Wharton who both explained that they had to register vehicles and therefore pay the bridge surcharge “fee,” although those specifically identified vehicles never cross a single bridge. They did you proud, providing testimony that was calm, convincing, certain, occasionally humorous, and very credible. To me, they are my newest heroes. Both took a day off, drove in from Grand County (think, from beyond the western border of Rocky Mountain National Park), leaving very early to get to Denver on time. Willie had to spend one of his vacation days to do so, and the trial managed to fall during the very busiest time of his professional year. Chris had to put aside the demands of her ranch and small businesses, and miss a school function for one of her two teenagers. These two deserve our special thanks.
Mr. Manley also called as witnesses the chief financial officer of the Colorado Department of Transportation (and “coincidentally” the chief financial officer of the Bridge Enterprise Fund) and the executive director of the Colorado Department of Transportation (and “coincidentally” of the Bridge Enterprise Fund). They had to answer his questions about how the supposedly separate entities operate and coordinate, and supply information about funding issues.
The final of the five witnesses did not conclude his testimony before business wrapped up yesterday, and that is where the trial was to continue from this morning. Paul Wingard was there to prove expert information about the values of the bridges. Any TABOR enterprise is limited to taxpayer subsidy of 10 percent of annual income. The calculated limit in this case is met only because most bridges were transferred from the Department of Transportation to the Bridge Enterprise at a value of zero. Mr. Wingard brings a rare combination of experience and talents to the discussion. He is a professional engineer who has consulted in that profession, is a licensed contractor who built bridges, served as a senior administrator for a road and bridge department of a county government in Florida, and has participated in arm’s-length transfers of tolled bridges and a highway. We found him through Reason Foundation’s Bob Poole. Paul submitted a report about the values of the Colorado bridges being transferred.
More on this important constitutional challenge as the situation develops.
Bottom Line:
Colorado taxpayers have been forced to pay literally $100 Million per year in additional ‘FASTER’ taxes (under the label of “fees”) while simultaneously becoming obligated for over $300 Million in debt – all without a vote of the people, as required under Colorado’s Constitution.
The lawsuit seeks to prevent “continued enforcement and maintenance of the bridge safety surcharge” (i.e. stop the illegal collection of a portion of the Colorado Car Tax) and require that “all “[r]evenue collected, kept, or spent illegally” be refunded” – as mandated under the Colorado Constitution.
Now THAT would be a welcome “tax refund” for all Coloradans.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Colorado Justice Center a Monument to Imperial, Unaccountable Colorado Judiciary
Colorado Justice Center a Monument to Imperial, Unaccountable Colorado Judiciary was originally published (with minor edits for length) in the Colorado Statesman weekly as a guest commentary (appearing online Monday, 13 May 2013)
Last week’s Colorado Statesman was host to a pair of guest commentary articles extolling the virtues of the newly-opened Colorado Justice Center.
Admittedly, it is an impressive edifice – as U.S. Supreme Court Justice Sotomayor noted, with an “architectural grandeur” imposing a feeling of being “humbled before the majesty of the law.”
(Photo originally published in Denver Post media gallery)
The irony of such an imposing, monumental structure being named after former Colorado governor Ralph Carr – a “principled politician” with an attitude of humble service to the citizens of our state –
is striking.
Other media reported on the extravagant costs of the sumptuously-appointed $288M judicial edifice – with “$1,300 wood serving carts with silver trays sitting in Supreme Court Justice Michael Bender’s reception room” along with $5,000 desks, $4800 leather sofas, $2375 credenzas with “antique brass hardware” and a host of other “elegant” luxury appointments in the judges’ chambers.
So just where does all of this money to fund the massive new “judicial complex” came from?
Ultimately, of course, from your pockets – but the details are interesting.
Part of the funding (authorized during the 2008 legislative session under SB08-206 State Justice Center) came from an unprecedented expansion in use of “Certificates of Participation” (in the words of a state legislator, “debt pretending not to be debt”). In fact, the legislative language specifies that the debt is simply re-defined as “not-debt” by declaring
the obligations shall not be deemed or construed as creating an indebtedness of the state within the meaning of any provision of the state constitution or the laws of the state of Colorado concerning or limiting the creation of indebtedness by the state of Colorado and shall not constitute a multiple fiscal-year direct or indirect debt or other financial obligation of the state within the meaning of section 20 (4) of article X of the state constitution. [SB08-206, Section 2, (2) (b), page 5]
“Crazy on Court Fees”
However, by far the greatest proportion of funding for the new judicial complex comes in the form of increasing the cost of access to justice by Colorado citizens via substantial increases in court fees (including creation of an entirely new category – the “Justice Center Fund” fee).
Want to file a case in civil court, defend yourself against a claim, change your name, or request a civil protection order? It’ll cost you an extra $37 for the “Justice Center Fund” – per filing. Small claims court filings? An extra $11 for the “Justice Center Fund”, thank you.
That’s just in your local county court – which may be hundreds of miles away from the judicial complex. Need access to justice at the District Court level or higher? Be prepared to cough up even more in “fees” for the “Justice Center Fund” – most actions in District Court or the Court of Appeals now cost an additional $68 for the fund, some as much as another $136 or even $204 each, at any of the 22 District Courts across Colorado, still miles from the Colorado Judicial Complex.
Even “domestic relations” cases are now more expensive thanks to the new fees – legal separation, annulment, divorce will each cost another $26; child custody registration or child support order, another $15 fee. Death in the family? That’ll cost extra, too – another $15 fee for probate filings, estate fees, conservatorship, etc. Anywhere in the state – all of Colorado now enjoys the “privilege” of contributing to this marvelous new edifice.
Even an “insufficient funds” return check fee for court payments (already $40, which is double what any private entity is allowed to charge) gets another $10 fee tacked on for the ”Justice Center Fund” (truly, adding insult to injury).
Need to fight a case up to a higher court? Pretty much ANY actions at the Colorado Court of Appeals now costs an additional $68 fee for that ”Justice Center Fund.” Water Court? Same story – almost every activity listed incurs an additional $68 for the ”Justice Center Fund” (some activities, such as applying for Change of Water Right or Plan for Augmentation, cost double – $136).
Ironically, the ONLY court where you WON’T have to pay an extra “Justice Center Fund” fee to pursue justice? You guessed it – the Colorado Supreme Court, whose “home” is being financed by all of these “fees” in the first place.
(View the full list of Colorado Court Fees – featuring the ”Justice Center Fund” fee)
It’s been said that “if you’re not outraged, you’re not paying attention.” Constitutionally, “fees” are only supposed to be charged to offset the cost of providing or administering a voluntarily accessed good or service. Since most people paying the “fees” receive no direct benefit from the new “Justice Center” those “fees” are really more of a tax. Taxes, constitutionally, cannot be increased without a vote of the people. Perhaps that’s why the Colorado Supreme Court’s majority decision in the 2008 Barber v. Ritter “Fees aren’t really taxes” case – expanding the use of “fees” by government entities across the state as a means of evading constitutional protections against tax increases – carries the taint of self-interest.
Of course, the entity which reviews the constitutionality of the “fees” and “certificates of participation” used to finance the new judicial complex is that branch of government receiving the greatest benefit: the Colorado Supreme Court, at the pinnacle of the state judicial system, has the final word.
The Colorado Justice Center, far from being a tribute to transparency or honoring the memory of the man after whom it is named, stands as a monument to an imperial, unaccountable state judiciary.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Colorado Supreme Court, Court of Appeals move into palatial new digs at the Ralph L. Carr Colorado Judicial Center
The Colorado Supreme Court and Colorado Court of Appeals take up residence in a brand-new, multi-million dollar facility a block away from the Colorado Capitol today (Wednesday, 19 December 2012) -
a mere two days before the “end of the world” supposedly “predicted” by the Mayan calendar.
The new “Judicial Center” is an impressive edifice (as shown in the picture below and in a photo gallery, both published by the Denver Post last week).
The demolition of the old court building in August 2010 was heralded by the Denver Post with another impressive front-page photo under the headline, “Make Room for Justice!“ along with a story inside (“Denver & The West” section – Colorado judicial building puts on show, disappears). Interestingly, although the Post article noted the cost of the demolition ($850,000) it completely failed to mention the cost of the replacement “judicial complex” (possibly out of concern for the sensibilities of the Post’s largest paying tenant – the Colorado Supreme Court paid the Denver Newspaper Agency $1.6 Million per year over the last three years for their temporary ‘digs’ while the new complex was being built).
Interestingly, almost every other contemporary news report DID mention the cost to taxpayers
($258 million).
“Make Room for Justice” or “Justice Held For Ransom?”
Unfortunately, NONE of the news coverage provided any information on just where all of this money to fund the massive new “judicial complex” came from (ultimately, of course, from your pockets – but the details are interesting).
Part of the funding for the project (authorized back during the 2008 legislative session under SB08-206 State Justice Center) came from an unprecedented expansion in use of “Certificates of Participation” (in the words of a state legislator who shall remain nameless, “debt pretending not to be debt”). In fact, the legislative language specifies that the debt is simply re-defined as ‘not-debt’ by declaring that
the obligations shall not be deemed or construed as creating an indebtedness of the state within the meaning of any provision of the state constitution or the laws of the state of Colorado concerning or limiting the creation of indebtedness by the state of Colorado and shall not constitute a multiple fiscal-year direct or indirect debt or other financial obligation of the state within the meaning of section 20 (4) of article X of the state constitution. [SB08-206, Section 2, (2) (b), page 5]
Former Colorado Treasurer Cary Kennedy was so proud of the ‘not-debt’ incurred to finance the construction of the new judicial complex (and new state history museum) that she trumpeted the great ‘success’ in a press release:
The successful financing of over $338 million in Certificates of Participation earlier today to build the new Colorado History Center and the Ralph L. Carr Justice Complex completed one of the largest sales of Build America Bonds to date, announced State Treasurer Cary Kennedy
“Crazy on Court Fees”
However, by far the greatest proportion of funding for the new judicial complex comes in the form of increasing the cost of access to justice by Colorado citizens due to substantial increases (including the creation of an entirely new category – the “Justice Center Fund” fee) in court fees.
Want to file a case in civil court, defend yourself against a claim, petition to change your name, or request a civil protection order? It’ll cost you an extra $37 for the “Justice Center Fund” – per filing. Small claims court filings? An extra $11 for the “Justice Center Fund”, thank you.
Oh, and that’s just in your local county court – which may be hundreds of miles away from the recently completed “Mullarkey Monument” (actually, even the legislature reportedly balked at naming the center after Mullarkey when some legislators dug in their heels and insisted upon another name; honoring former Republican Governor Ralph L. Carr – truly, a principled politician – but naming the center after him is a rather ironic twist). Need access to justice at the District Court level or higher? Be prepared to cough up even more in “fees” for the ”Justice Center Fund” – most actions in District Court now cost an additional $68 for the fund, some as much as another $136 or even $204 each, at any of the various District Courts (22 in all) across Colorado, still miles from the as-yet unbuilt Colorado Judicial Complex.
Even “domestic relations” cases across the state are now more expensive thanks to the ”Justice Center Fund” fees – legal separation, annulment, divorce will each cost another $26; child custody registration or child support order, another $15 just for financing the construction of the massive new judicial complex.
Death in the family? That’ll cost you extra, too – another $15 ”Justice Center Fund” fee for probate filings, estate fees, conservatorship, etc. etc. Anywhere in the state – all of Colorado now enjoys the privilege of contributing to this marvelous new edifice.
Even an “insufficient funds” return check fee for court payments (already $40, which is double what any private entity is allowed to charge) gets another $10 fee tacked on for the ”Justice Center Fund” (truly, adding insult to injury).
Need to fight a case up to a higher court? Pretty much ANY actions at the Colorado Court of Appeals now costs an additional $68 fee for that ”Justice Center Fund.” Water Court? Same story – almost every activity listed incurs an additional $68 for the ”Justice Center Fund” (some activities, such as applying for Change of Water Right or Plan for Augmentation, cost double – $136).
Ironically, the ONLY court where you WON’T have to pay an extra ”Justice Center Fund” fee to pursue justice? You guessed it – the Colorado Supreme Court, who’s “home” is being financed by all these “fees” in the first place.
(View the full list of Colorado Court Fees – featuring the ”Justice Center Fund” fee)
It has been said that “if you’re not outraged, you’re not paying attention.” Since “fees” are only supposed to be charged to offset the cost of providing or administering a voluntarily accessed good or service, the proliferation of new “fees” to finance the construction of palatial new digs for the Colorado Supreme Court – holding the administration of justice at county and District courts across the state hostage to this massive new monument to judicial supremacy – is questionable at best, particularly at a time when state resources are already strained and Colorado Citizens are being forced to cut back on personal spending. Aren’t we supposed to be asked before the government in Colorado can take more of our hard-earned dollars? Perhaps that’s why the Colorado Supreme Court’s majority decision in the 2008 Barber v. Ritter “Fees aren’t really taxes” case – expanding the use of “fees” by government entities across the state as a means of evading constitutional protections against tax increases – carries the taint of self-interest.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Midweek Update: Governor Hickenlooper, AG Suthers seek dismissal of ‘political’ anti-TABOR lawsuit (Fenster’s Folly)
Predictably (indeed, Clear The Bench Colorado predicted both motion and grounds almost three months ago), Governor Hickenlooper and Attorney General John Suthers filed a Motion to Dismiss the anti-TABOR lawsuit (“Fenster’s Folly“) this week, noting that the lawsuit raises a ”political question” rather than a legal issue and is therefore (as the U. S. Supreme Court has previously ruled, several times) “non-justiciable” (meaning, a policy issue not to be decided by the courts).
The state’s Motion to Dismiss Plaintiffs’ Substitute Complaint echoes the same points and references raised in Clear The Bench Colorado‘s review of the lawsuit when it was filed back in May of this year (“TABOR, citizen initiatives targeted by frivolous Fenster lawsuit“):
I. All the claims asserted by Plaintiffs present political questions that the U.S. Supreme Court has long held to be nonjusticiable. The Plaintiffs ask this Court to do something the Supreme Court has consistently refused to do: overthrow a state law for being too democratic. Not only has the Court never done such a thing, it has repeatedly held that claims of this sort may not be entertained by federal courts. [Motion to Dismiss, p.5-6]
The Motion proceeds to highlight the danger of judicial activism that would inevitably result:
Beyond the “lack of judicially discoverable and manageable standards,” the claims presented here would entangle the Court in policy determinations it must avoid. [Motion at 8]
Noting further the hypocrisy of the plaintiffs’ argument that “ some direct democracy should be upheld, so long as it results in their preferred policy” [Motion at p.8] the state concludes
It would be difficult to imagine a more glaring example of “a policy determination of a kind clearly for non-judicial discretion.” Baker, 369 U.S. at 216.
Noting the “narrow and limited authority” of judges, the Motion cites an earlier Federal court ruling:
Our entire System of Government would suffer incalculable mischief should judges attempt to interpose the judicial will above that of the [coordinate branches], even were we so bold as to assume that we can make better decisions.”) [ Pauling v. McNamara, 331 F.2d 796, 799 (D.C. Cir. 1963)]
Now where have we heard that before?
In fact, as the Motion further elucidates,
B. The Supreme Court has specifically held that claims like Plaintiffs’, based on citizen initiative power to tax, are nonjusticiable political questions [Motion at 11]
In a deliciously ironic twist, the Motion even cites the Colorado Supreme Court’s arrogation of legislative authority to the judicial branch in the Salazar v. Davidson redistricting case:
In Salazar, the court extended this rationale to include the courts. 79 P.3d at 1232-33, 1236-37. Neither of these decisions has been disturbed. See Colorado General Assembly v. Salazar, 541 U.S. 1093 (2004); Lance v Coffman, 549 U.S. 437 (2007) (refusing to address challenges to Salazar). So even if Plaintiffs were correct that only a state’s “legislature” can enact laws, these cases require inclusion of the people (not to mention the judiciary) within that concept.
The remainder of the Motion addresses issues of Standing (in brief, the Plaintiffs don’t have any) to bring the case – which, while important, will most likely induce acute MEGO (“My Eyes Glaze Over”) in the typical (lay) reader and will not be recounted here.
Clear The Bench Colorado‘s sole critique of the state’s Motion to Dismiss is that the state did not seek attorney’s fees from the plaintiffs under C.R.S. 13-17-101 (to offset costs to taxpayers) for filing what is clearly a ”frivolous, groundless, and vexatious” lawsuit.
Although an award of attorneys’ fees is rare (Clear The Bench Colorado won just such an award against “Colorado Ethics Watch” – CEW, pronounced “sue”, it’s what they do – one of only a few in the last decade) it can be done (although actually collecting on the judgement may take months, or years), when opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.
Such abuse of the courts for political posturing can and should be discouraged…
Additional references:
A more detailed (and highly informative) discussion of the constitutionality of the citizen initiative and referendum processes may be found in the Texas Law Review article, “A Republic, Not a Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause” by Professor Robert G. Natelson.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
TABOR, citizen initiatives targeted by frivolous Fenster lawsuit
Apparently not content with killing TABOR (Colorado’s Taxpayer Bill of Rights constitutional amendment) by the thousand cuts (well, 15 and counting) of Colorado Supreme Court “interpretations” of TABOR’s viability in individual cases (most notoriously, the 2009 “Mill Levy Tax Freeze” property tax increase and the 2008 “fees don’t count as taxes” case leading to the Colorado Car Tax), TABOR’s foes have decided to swing for the bleachers by targeting the amendment’s passage via the citizen initiative process – which the lawsuit claims is an unconstitutional practice.
The lawsuit was filed in Federal court on Monday by a group predominantly composed of current and former elected officials (including both Democrats and Republicans, although all current Republican legislators and the party organization vigorously oppose the lawsuit, in defense of the Colorado Constitution and the right of citizen initiative). The lead attorney and “mastermind” behind the lawsuit is “superlawyer” Herbert L. Fenster – who has been shopping around the idea for over a year before finding enough plaintiffs and other attorneys (including former Democrat Congressman David Skaggs and former Democrat state senator Mike Feeley) to sign to the case. Fenster and Skaggs both work at the firm McKenna, Long & Aldridge LLP, while Feeley works at the politically connected Brownstein Hyatt Farber Schreck law firm (a powerhouse Democrat political brokerage).
However, for a “superlawyer,” Fenster’s lawsuit is based on the most tenuous of legal grounds…
Legal precedent – including two relevant Supreme Court of the United States (SCOTUS) decisions – is clear; Fenster’s lawsuit is frivolous, the “Republican form of government” language in the Constitution’s “Guarantee Clause” (United States Constitution, Article IV, Section 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government“) has been repeatedly ruled non-justiciable (meaning, not subject to determination by the courts), and constitutional constraints on government are, by definition, constitutionally allowed…
The two relevant SCOTUS cases on the “Guarantee Clause” have unambiguously held the “Republican form of government” language to be non-justiciable:
In Luther v. Borden, 48 U.S. 1 (1849), the Supreme Court rejected an attempt to put the “republican character” of state government subject to judicial review, holding that “it rests with Congress to decide what government is the established one in a State … as well as its republican character.” The court, properly exercising judicial restraint, held the “Guarantee Clause” to be a political question, not a judicial one – and therefore not subject to review by the courts (i.e. non-justiciable).
A more recent case, Pacific States Telephone and Telegraph Company v. Oregon, 223 U.S. 118 (1912) dealt specifically with a challenge to the use of citizen initiatives in states (such as Colorado’s TABOR Amendment). In that case, the Court also held that challenges to a state’s “republican character” are non-justiciable political questions:
The enforcement of the provision in § 4 of Art. IV of the Constitution that the United States shall guarantee to every State a republican form of government is of a political character, and exclusively committed to Congress, and as such is beyond the jurisdiction of the courts.
It doesn’t get more clearly stated than that.
Since even a casual review of the legal literature by a non-attorney can turn up the clear and definitive legal precedent that leaves the lawsuit devoid of justification and any prospect for success in court, Fenster’s Folly clearly meets the definition of a “frivolous, groundless, and vexatious” lawsuit. The Colorado Attorney General (along with any parties joining in the defense) should pursue recovery of costs (taxpayer dollars) spent in defending the suit against all attorneys and plaintiffs involved.
Although an award of attorneys’ fees is rare (Clear The Bench Colorado won just such an award against “Colorado Ethics Watch” – CEW, pronounced “sue”, it’s what they do – one of only a few in the last decade) it can be done (although actually collecting on the judgement may take months, or years), when opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.
Such abuse of the courts for political posturing can and should be discouraged…
Given the unambiguous and overwhelming constitutional precedent against the case, Fenster’s Folly must be viewed for what it clearly is: a massive PR stunt that’s merely the opening salvo in part of a concerted attack on Colorado’s Constitution and the citizen initiative process in Colorado.
Ironically, part of that attack is likely to come in the form of legislatively referred ballot measures and/or “citizen” initiatives (such as state senator Rollie Heath’s “for the children” tax hike proposal) along with additional court cases to nibble away at TABOR (the Colorado Supreme Court is a perfect 0-for-15 in upholding Article X Section 20 of the Colorado Constitution – almost as perfect losers as the 0-for-16 2008 Detroit Lions; another reason Colorado has been called a “Judicial Hellhole“).
Additional references:
A more detailed (and highly informative) discussion of the constitutionality of the citizen initiative and referendum processes may be found in the Texas Law Review article, “A Republic, Not a Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause” by Professor Robert G. Natelson.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Defending the Constitution – Why 9/11 still matters today
No Friday Funnies this (last) week – instead, Clear The Bench Colorado joins millions of Americans across the country in somber remembrance of the 9/11 attacks on our nation.
What does this have to do with holding our Colorado Supreme Court justices accountable to the rule of law and the Colorado Constitution? Quite a lot, actually…
As a proud veteran of the U.S. military (including service in the Colorado Army National Guard), I take my oath of enlistment – “I will support and defend the Constitution of the United States and the State of Colorado [emphasis added] against all enemies, foreign and domestic” - seriously; very seriously.
Many of our elected (and unelected) officials seem to have a much more cavalier attitude towards their own oath of office.
Our Supreme Court justices also swear an oath on taking office, which begins: “I will support the Constitution of the United States and the Constitution of the State of Colorado.”
Note that the oath of office does not state that ”I will support only those parts of the Constitution I like or with which I personally agree or empathize.”
Yet the Mullarkey Court has consistently ruled against the Colorado Constitution’s Article X, Section 20 (TABOR) in every case it has heard – despite the clear intent and letter of the law that “[i]ts preferred interpretation shall reasonably restrain most the growth of government.”
The Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, Chief Justice Mary Mullarkey) are oathbreakers – and dishonor the service of the men and women of the United States military and law enforcement agencies who put their lives on the line to support and defend our Constitution. They have proven themselves unworthy of the high office they occupy, and must NOT be retained in that office following the November 2010 elections. Vote “NO” on these unjust justices!
Another important lesson of 9/11 is that individuals matter – and fighting to defend your rights, and your lives, is the only way to preserve your rights (and your life, in extremis) when under attack. The true heroes of that day were not only the firefighters but also the ordinary citizens who acted to save lives – and the brave passengers on Flight 93 who fought back against the hijackers on the 4th plane and died not as victims, but as American heroes.
We can no longer be under any illusion – as the passengers on Flight 93 discovered – that our rights and lives are NOT under attack and threatened by enemies both foreign and domestic. The nature of the threat (and appropriate response) are different, but the need to take action, to defend your rights – are the same.
Freedom isn’t Free – 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!
Friday Funnies: Colorado “Fee” Mania Unleashed – on Colorado Canines n’ Kitties?
Welcome to another belated edition of the Friday Funnies (hey, our graphics guy is on vacation – and artistic talent is NOT tied to the Y chromosome in my family) for the latest in our continuing cavalcade of canine & kitty clips…
The last week has brought even more additions to the litany of backdoor taxes (er, “fees”) being foisted on Colorado citizens. Apparently unconcerned with widespread opposition to the Colorado Car Tax, Governor Ritter picked a showdown with Colorado gun owners by proposing more new taxes (sorry, “fees“) on gun sales and concealed-carry permits to “balance the budget.” Hmmm, and I thought that “fees” were supposed to be related to the cost of providing a particular government service? Oh, right – that quaint notion was swept aside (along with other constitutional protections against tax increases) by our activist Colorado Supreme Court.
Sooner or later, though, our governor and legislature will run out of people they can target for tax hikes – can going after kittens and puppies be far behind?
Don’t let the Mullarkey Majority unleash even more taxes (er, “fees”) by our rabidly spendthrift governor and legislature - support Clear The Bench Colorado and vote “NO” on these unjust justices before they can make even more Colorado puppies and kittens sad.
Balancing the Budget with new “Fees?” Ritter Gun Tax joins Colorado Car Tax in Mullarkey-sanctioned TABOR runaround
Well, that didn’t take long.
In Monday’s article predicting that new “fees“, not new taxes, would be the preferred approach of the Governor and the Colorado Legislature to address our state’s “fiscal crisis” (in reality more of a spending issue, not a revenue shortfall), I’d thought (paraphrasing Will Rogers) that my wallet was safe until the Legislature was back in session. Although that’s still technically true (since the latest proposed “fee” increases still require legislative approval before going into effect), less than a day passed between my prediction and the first new “fee” proposal by Governor Ritter.
Ritter’s Colorado Gun Tax is the latest scheme to target a maligned minority group (gun-owners) to bear the burden of additional charges (pardon, “fees“) in order to exercise a constitutional right. Under Ritter’s proposed budget plan, the state would levy “a fee increase for background checks on gun sales” as well as increasing the fee for Concealed-Carry Weapons (CCW) permits.
This follows on the heels of the 2009 Legislative Session’s Tobacco Tax increase, HB1342 (technically, an elimination of the long-standing Colorado state tax exemption for tobacco products).
Does anyone think that our governor and legislators will stop with targeting gun-owners and smokers? Not by a long shot (pardon the pun); they’re just getting warmed up:
The “nearly $2 billion in tax credits, incentives, and exemptions in state law”- which includes exemptions on taxing groceries, internet access, gasoline, fuel for residential heat, etc. (view the complete list) – was previously shielded from legislative raids on your wallet by TABOR, until the Mullarkey Court declared “open season” on these credits as part of the “Mill Levy Tax Freeze” ruling.
Ritter and the Colorado Legislature were similarly prohibited from bypassing TABOR – and TABOR’s requirement for a vote of the people on tax increases – by raising taxes disguised as “fees” until the Mullarkey Court’s “November Surprise” ruling in the Barber v. Ritter case.
The Mullarkey Majority has been aiding and abetting the sticky fingers of state government in YOUR wallet. It’s high time to hold them accountable – vote “NO” on retaining these unjust justices in 2010.
Let’s Clear The Bench, Colorado!