The three nominees selected a week ago by the Colorado Supreme Court Nominating Commission (Judge Brian Boatright, attorneys Frederick Martinez and Patrick O’Rourke) were each interviewed Friday by Governor John Hickenlooper, and earlier today (Monday) by Lt. Governor Joe Garcia.  Governor Hickenlooper, who has the final say on which of the three will be appointed as the next Colorado Supreme Court justice (replacing resigning  Justice Alex Martinez, resigning to take a “city job” as Denver Manager of Safety) is expected to announce his pick later in the week (no later than Friday October 28th, or the pick will fall to Colorado Supreme Court Chief Justice Michael Bender, according to the provisions of Colorado Constitution, Article VI (Judiciary), Section 20).

If the governor shall fail to make the appointment (or all of the appointments in case of multiple vacancies) from such list within fifteen days from the day it is submitted to him, the appointment (or the remaining appointments in case of multiple vacancies) shall be made by the chief justice of the supreme court from the same list within the next fifteen days.

The selection of three finalists by the Colorado Supreme Court Nominating Commission after reviewing applications and interviewing candidates over the last couple of weeks represents the sole “check” or “balance” to the power of the governor to select and appoint judges in our state (unlike the system for appointing federal judges, there is no “advise & consent” function exercised by the state legislature).

(Click here to know more about how individuals are selected & appointed to judicial office in Colorado)

Governor Hickenlooper, to his credit, followed the precedent recently established by former Governor Bill Ritter in accepting public input on the 3 nominees to become the next Colorado Supreme Court justice (soliciting E-mails to judicial.appointments@state.co.us with your comments, concerns, or suggestions).

Also following recently established precedent (established for the first time earlier this year), the Denver Post published a profile of the nominees for this important public office (Sunday edition 23 October, “Hickenlooper to choose new Supreme Court justice“).

Until recently, the most information available to the public would have been the names of the finalists - a situation lacking in the transparency and accountability the public has every right to expect in relation to holding public office.  Clear The Bench Colorado has been among the leaders calling for reform in the judicial selection and nomination process (”No More Secrecy in Colorado Supreme Court judicial hiring“), as noted in last year’s Denver Post article on replacing Mullarkey:

These are people who are auditioning to become government employees occupying some of the highest offices in the state about which there is no knowledge or public input or transparency or accountability,” Arnold said. “I would certainly urge the legislature to take a look at this…

For only the second time in state history, additional information on the nominees (including the public portion of their applications) is available to the public for review.  Law Week Colorado has again made the applications available for view (”State Releases Applications Of Finalists For Colorado’s High Court“).

Unfortunately, although the Denver Post profile of the nominees provides a (brief) overview of the respective professional accomplishments of each of the nominees, and some anecdotal insights into their personalities, it does little to illuminate the qualifications each brings to the state’s highest judicial office.  Although one of these three individuals will be elevated into a position of “supreme” power to interpret and apply the law, the public is provided no insight into their judicial philosophy or decision-making process.  Particularly when only one of the nominees has ever served as a judge at any level, do they understand and will they exemplify the qualities that make a good judge?  Will they exercise judicial power fairly and impartially, and with appropriate restraint?

“An independent, fair and impartial judiciary is indispensable to our system of justice … the judiciary plays a central role in preserving the principles of justice and the rule of law.”

The governor’s decision - which of these three nominees he ultimately appoints to the Supreme Court - will have deep and lasting implications for the state, perhaps greater than any other decision he makes.  May he choose wisely…

In any event, Clear The Bench Colorado will be watching.

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.

Announced with much less fanfare Thursday (a short article buried in the Denver Post, “Finalists named for Colorado Supreme Court” and in the Denver Business Journal online, “3 finalists named for Colorado Supreme Court seat“) than last year’s front-page article announcing the finalists to replace outgoing Chief Justice Mary Mullarkey (”Three finalists emerge for Colorado Supreme Court vacancy“), the names and applications of the finalists to replace outgoing Justice Alex Martinez, resigning to take a “city job” as Denver Manager of Safety, were released to the public.

The selection of three finalists by the Colorado Supreme Court Nominating Commission after reviewing applications and interviewing candidates over the last couple of weeks represents the sole “check” or “balance” to the power of the governor to select and appoint judges in our state (unlike the system for appointing federal judges, there is no “advise & consent” function exercised by the state legislature).

(Click here to know more about how individuals are selected & appointed to judicial office in Colorado)

Under the Colorado Constitution, Article VI (Judiciary), Section 20, the governor has 15 days from the announcement of the commission’s nominees (so, until 28 October) to pick one of the three, or the Chief Justice (Michael Bender) makes the pick:

If the governor shall fail to make the appointment (or all of the appointments in case of multiple vacancies) from such list within fifteen days from the day it is submitted to him, the appointment (or the remaining appointments in case of multiple vacancies) shall be made by the chief justice of the supreme court from the same list within the next fifteen days.

Last year, to his credit, former Governor Bill Ritter solicited public input on the three nominees to become the next Colorado Supreme Court justice (soliciting E-mails to judicial.appointments@state.co.us with your comments, concerns, or suggestions); it remains to be seen if Governor Hickenlooper will seek the same level of public participation before he (on 21 October) and Lt. Governor Garcia (on 24 October) interviews the nominees in person.

So who are the three nominees?

Until recently, the most information available to the public would have been the names of the finalists - a situation lacking in the transparency and accountability the public has every right to expect in relation to holding public office.  Clear The Bench Colorado has been among the leaders calling for reform in the judicial selection and nomination process (”No More Secrecy in Colorado Supreme Court judicial hiring“), as noted in last year’s Denver Post article on replacing Mullarkey:

These are people who are auditioning to become government employees occupying some of the highest offices in the state about which there is no knowledge or public input or transparency or accountability,” Arnold said. “I would certainly urge the legislature to take a look at this…

For only the second time in state history, additional information on the nominees (including the public portion of their applications) is available to the public for review.  Law Week Colorado has again made the applications available for view (”State Releases Applications Of Finalists For Colorado’s High Court“).

In alphabetical order, the nominees for the next Colorado Supreme Court justice are:

• Brian Boatright, a Jefferson County District Court Judge, from Arvada
  (Work address/phone:  100 Jefferson County Parkway, Golden CO 80031/(303) 271-6433)
• Frederick Martinez, an attorney with Hall & Evans, from Castle Pines
  (Work address/phone: 1125 17th Street, Suite 600, Denver CO 80202/(303) 628-3302)
• Patrick O’Rourke, chief litigation attorney for the University of Colorado, from Highlands Ranch
  (Work address/phone: 1800 Grant Street, Suite 800, Denver CO 80203/(303) 860-5691)

Interestingly, only one of the nominees (Judge Boatright) has any experience in judicial office, as a District Court judge in Jefferson County (1st Judicial District).  (In comparison, the nominees to replace outgoing Chief Justice Mary Mullarkey, who quit rather than be held accountable by Colorado voters, included an Appeals Court judge, a District Court judge, and an assistant Attorney General).  Attorney Frederick Martinez has worked on the Office of Attorney Regulation Council (the arm of the Colorado Supreme Court responsible for reviewing ethics complaints and charges against attorneys) and as a public defender, in addition to general litigation.  Attorney Patrick O’Rourke has been the chief litigator for the University of Colorado, and has argued several high-profile cases such as Ward Churchill’s “1st Amendment retaliation” claims against CU (in district court) and the recent CU Gun Ban case (before the Colorado Supreme Court).  Former litigators would of course have to recuse themselves from any case (including appeals of those cases) they have represented.

Our view: Citizen participation in the judicial nominating process (at both the district and state levels) is essential to ensuring that good judges - who understand that their role is to fairly & impartially uphold and apply the law - are elevated to hold judicial office, instead of more politicians in black robes.

This is particularly important in selecting the next Colorado Supreme Court justices - who all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.

Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens - that our supreme court justices are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.

An informed citizenry and active citizen participation is vital in restoring accountability and transparency to the 3rd branch of state government, the judiciary - most particularly for the Colorado Supreme Court.

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.

Surely make you lose your mind…

The Colorado Car Tax (er, “fee”) increase - ironically dubbed ‘FASTER’ - passed in the 2009 legislative session made another lap in media coverage this past week with a broadcast on the ‘Devil’s Advocate‘ television program and publication of a pair of “Issue Backgrounder” papers.

The “Issue Backgrounder” papers each address a specific aspect of the FASTER legislation, focusing in on the “Bridge Enterprise” (a ‘government-owned business’ within the Colorado Department of Transportation, or CDOT).  One paper addresses how the “Bridge Enterprise” has raised $300M in debt without (constitutionally-required) voter approval (and the long-term implications for Colorado’s fiscal stability); the other more generally addresses how the Colorado Bridge Enterprise contravenes the Colorado Constitution.

Both papers are well worth reading, and provide additional detail on just how bad even this single aspect of the FASTER Colorado Car Tax (er, “fee”) is for Colorado citizens.

However, both papers together only tell half of the story (almost literally).  The ‘Colorado Bridge Enterprise’ is only one of two new ‘government-owed businesses’ established by the FASTER legislation (the other being the ‘Colorado Transportation Enterprise’ charged with collecting and spending the ‘road safety surcharge’ tax - er, “fee”) .  Both “enterprises” are overseen by an 11-member appointed (ergo, unaccountable to the public) board (coincidentally, the same 11 people who make up the Colorado Transportation Commission).  Significantly (although unfortunately unremarked in both papers), both ‘enterprises’ are also authorized to use eminent domain to seize private property.

The television broadcast is informative and entertaining as well, but unfortunately also misses significant parts of the story.

The Colorado Car Tax - It’s Worse Than You Think

Also unremarked in both papers - and on the television broadcast as well - is the fact that FASTER actually comprises multiple tax increases (er, “fees”) in a single piece of legislation, blatantly violating the constitutional requirements to “receive voter approval in advance” for “any new tax, mill levy above that for the prior year, valuation for assessment ratio increase for a property class, or extension of an expiring tax, or a tax policy change directly causing a net tax revenue gain to any district.” (Colorado Constitution, Article X, Section 20 - the ‘Taxpayer’s Bill of Rights’).  The “bridge fund fee” and the “road safety surcharge fee” increase each year for three years (yep, that’s 3 tax increases in one!), in addition to imposing an entirely separate “fee” on car rentals as well.  Oh, and don’t forget the “late fees” too…

But all of this is necessary “to preserve our crumbling transportation infrastructure,” right?  That was the justification for passing the bill - along with claims that any and all “fees” collected “shall be used exclusively for the construction, maintenance, and supervision of the public highways of the state.”   Says so right in the legislative language (43-4-810), so it must be true, correct?

Not so much.  The dirty little secret of the FASTER bill is that many of the taxes (er, “fees”) collected don’t go towards the construction or maintenance of roads or bridges at all, but for “multi-modal and demand-side transportation solutions” - such as the desire of certain state Senators for streetcars in Denver - justified by other language in a following section (43-4-812):

43-4-812. Use of user fees for transit - legislative declaration.
(2) THE GENERAL ASSEMBLY HEREBY FINDS AND DECLARES THAT THE FUNDING OF TRANSIT-RELATED PROJECTS AUTHORIZED BY SUBSECTION (1) OF THIS SECTION CONSTITUTES MAINTENANCE AND SUPERVISION OF STATE HIGHWAYS BECAUSE IT WILL HELP TO REDUCE TRAFFIC ON STATE HIGHWAYS AND THEREBY REDUCE WEAR AND TEAR ON STATE HIGHWAYS AND BRIDGES AND INCREASE THEIR RELIABILITY, SAFETY, AND EXPECTED USEFUL LIFE.

In fact, the bill MANDATES state spending of $10 Million per year on “transit-related projects.”

It’s an outrageous semantic shell game - and a blatant violation of your constitutional rights.

To sum up: the “FASTER” car tax increase raised vehicle registration fees by $22.50-55 per vehicle, including a “road safety surcharge fee” of $16-$39 per vehicle, PLUS a “bridge fund fee” of $13-$32 per vehicle (phased in at 50%/75%/100% each of the first 3 years ).  Plus mandatory “late fees” of $25/month (capped at $100) - for all “vehicles” (including trailers barely even worth that much).

All while creating two new ‘government-owned’ bureaucracies with power to spend, borrow, & seize private property unconstrained by the Taxpayer’s Bill of Rights and not accountable to the people.

Oh, and increasing mandatory spending by over $10 Million per year on purposes other than roads, bridges, or other transportation infrastructure used by those paying the “fees.”

Most of the politicians who did this to you - including Governor Bill Ritter, Senate sponsor Dan Gibbs, and House sponsor Joe Rice - have paid the political price, either quitting office or being defeated at the ballot box; however, the real culprits, without whom none of this would have been possible (thanks to a Nov. 2008 court ruling to allow “fees” to act like taxes, in violation of your constitutional rights) escaped justice (except for Chief Justice Mary Mullarkey, who quit rather than face the voters, the remaining members of the Colorado Supreme Court who aided and abetted FASTER were retained in office for another 10-year term).

Unfortunately, these politicians in black robes remain ‘at large’ and able to continue to assault your constitutional rights for years to come.

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.

Apparently, the adults were away at the Denver Post editorial board Saturday morning…

While most Americans spent the 9th anniversary of the 9/11 attacks on our country in solemn and respectful remembrance of “a date which shall live in infamy”, the Denver Post editorial board used the occasion to take a cheap shot at a decorated military veteran standing up for the constitutional rights of Coloradans against an overbearing, out-of-control group of politicians in black robes.

Eh?

That’s right - the puerile purveyors of pusillanimous punditry and pathetic potshots at the Post…

…called me a skunk.

Literally.

The Denver Post’s editorial Saturday morning (”Nine years later, we must never forget“) dedicated almost half the print space of their 9/11 editorial to a rather juvenile personal attack (excerpt follows):

“Yet there always has to be a skunk at the garden party, and this time the role of Pepe Le Pew was played by Matt Arnold of Clear the Bench Colorado, a group that wants voters to oust all of the justices who are up for retention this year.”

Realizing that it was Saturday morning and time for cartoons and all - when did the Post editors send the adults home and put puerile namecallers in charge of the paper?

So… what prompted this stinky script?

Daring to express skepticism about Governor Ritter’s pick of Deputy Attorney General Monica Marquez to become Colorado’s next supreme court justice (replacing outgoing Chief Justice Mary Mullarkey, who announced in June that she would resign rather than be held accountable by voters this November) apparently soured the congratulatory kumbayah chorus led by the Post.

Recognizing that Marquez is no doubt a fine attorney, praised as such by her boss Attorney General John Suthers (who also earlier endorsed a “NO” vote on three Colorado Supreme Court justices), we expressed concerns that her lack of judicial experience, coupled with a pattern of taking positions directly contrary to the Colorado Constitution, formed a troubling indicator of potential activism from the bench:

Many of her positions on constitutional issues raise concerns about how she might rule from the bench.  Marquez advocated in favor of the 2003 judicial takeover of legislative redistricting authority in the Salazar v. Davidson redistricting case, argued that “fees” are not taxes in the Barber v. Ritter case (which led to the 2009 Colorado Car Tax - er, vehicle registration “fee” - increases), and has sought to restrict the 1^st Amendment rights of citizens seeking to speak out on ballot issues in recent and ongoing cases.  She is also the lead attorney in yet another attempt to impose an unconstitutional tax increase on Colorado Citizens.

The Post editorial board also made knowingly false statements in suggesting that Clear The Bench Colorado has issued (or would issue) a blanket condemnation of “any of Ritter’s picks.”  Although we have certainly been critical of many of the governor’s choices, we are on record as praising several of Ritter’s picks when they have acted to uphold the constitutional rights of Colorado citizens, as many of his appointments on the Colorado Court of Appeals (apparently the highest court in Colorado which retains respect for the rule of law) have done (most recently in rejecting another unconstitutional tax increase, and earlier this year upholding the constitutional and statutory rights of Colorado concealed-carry permit holders).  Unfortunately, the solid jurisprudence of those judges is under attack (in both cases mentioned, and several others) in the activist, anti-constitutional Colorado Supreme Court.

Truly, another stellar moment in journalism at the once-proud “newspaper of record” in Colorado…

No more stench from the bench!

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 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!

It’s still deja vu all over again…

Several of the unconstitutional “Dirty Dozen” tax bills previously rammed through the Colorado House(Monday) on a largely party-line vote are now up for hearings this week before the Colorado Senate.

On Wednesday, four of the “Dirty Dozen” tax increase bills came up for hearings and public testimony before the Senate Finance Committee at the Colorado Capitol (Old Supreme Court chambers):

-HB 1189 (Elimination of the state sales and use tax exemption for direct mail advertising materials)
-HB 1191 (Subjecting candy and soft drinks to the state sales and use taxes)
-HB 1194 (Eliminating sales tax exemptions for “nonessential food articles” - the “doggy bag” tax)
-HB 1196 (Elimination of tax credit for alternative fuel vehicles)

Clear The Bench Colorado Director Matt Arnold testified in opposition to these bills on constitutional grounds - since it is clear that each bill represents “a tax policy change…  resulting in a net revenue gain” and therefore, under the Colorado Constitution, requires prior approval by a vote of the people.

The following video clip is a recording of his testimony against the “Doggy Bag” tax - which is not only unconstitutional in origin, but (in the bill’s particulars) is confusing, capricious, and arbitrary in application - and will likely result in increased costs to government in the form of additional oversight, regulation, and enforcement (”Doggy Bag Police?”)

Defend your right to have a vote before being taxed - and exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (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, instead of rule by an oligarchy of activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices!

It’s still deja vu all over again…

Several of the unconstitutional “Dirty Dozen” tax bills previously rammed through the Colorado House(Monday) on a largely party-line vote are now up for hearings this week before the Colorado Senate.

On Wednesday, four of the “Dirty Dozen” tax increase bills came up for hearings and public testimony before the Senate Finance Committee at the Colorado Capitol (Old Supreme Court chambers):

-HB 1189 (Elimination of the state sales and use tax exemption for direct mail advertising materials)
-HB 1191 (Subjecting candy and soft drinks to the state sales and use taxes)
-HB 1194 (Eliminating sales tax exemptions for “nonessential food articles” - the “doggy bag” tax)
-HB 1196 (Elimination of tax credit for alternative fuel vehicles)

Clear The Bench Colorado Director Matt Arnold testified in opposition to these bills on constitutional grounds - since it is clear that each bill represents “a tax policy change…  resulting in a net revenue gain” and therefore, under the Colorado Constitution, requires prior approval by a vote of the people.

The following video clip is a recording of his testimony against the “Candy & Soft Drink” tax - which is not only unconstitutional in origin, but (in the bill’s particulars) is confusing, capricious, and arbitrary in application - and will likely result in increased costs to government in the form of additional oversight, regulation, and enforcement (”Candy Police?”)

A particularly noteworthy exchange in this clip comes when Sen. Pat Steadman attempts to defend his characterization of the right of Colorado citizens to vote their conscience in the statewide retention elections for the Colorado Supreme Court justices on the ballot this year as “radical and disruptive.”  Apparently it’s not just your right to vote on tax increases that is troublesome to some officials…

Defend your right to have a vote before being taxed - and exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (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, instead of rule by an oligarchy of activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices!

It’s deja vu all over again…

Several of the unconstitutional “Dirty Dozen” tax bills previously rammed through the Colorado House (Monday) on a largely party-line vote are now scheduled for hearings before the Colorado Senate.

The following bills are scheduled for hearings and public testimony Wednesday before the Senate Finance Committee at the Colorado Capitol (Old Supreme Court chambers, 2nd Floor north side):

-HB 1189 (Elimination of the state sales and use tax exemption for direct mail advertising materials)
-HB 1191 (Subjecting candy and soft drinks to the state sales and use taxes)
-HB 1194 (Eliminating sales tax exemptions for “nonessential food articles” - the “doggy bag” tax)
-HB 1196 (Elimination of tax credit for alternative fuel vehicles)

Clear The Bench Colorado Director Matt Arnold will testify in opposition to these bills on constitutional grounds - since it is clear that each bill represents “a tax policy change…  resulting in a net revenue gain” and therefore, under the Colorado Constitution, requires prior approval by a vote of the people.

Please join in opposition to these stealth tax increases - being imposed on Colorado citizens without the constitutionally required prior approval by a vote of the people - either by showing up to testify, or by contacting your state Senator to register YOUR opinion.

Defend your right to have a vote before being taxed - and exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (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, instead of rule by an oligarchy of activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices!

The Colorado House today rammed through the majority of the “Dirty Dozen” stealth tax increases - by way of eliminating existing tax credits or exemptions that will adversely affect Colorado businesses, as well as Colorado ranchers and farmers, along with current employees, job-seekers, and consumers - on a mostly party-line vote following several hours of debate Monday.

Clear The Bench Colorado Director Matt Arnold testified in opposition to these bills on constitutional grounds - since it is clear that each bill represents “a tax policy change…  resulting in a net revenue gain” and therefore, under the Colorado Constitution, requires prior approval by a vote of the people.

Several legislators offered amendments to these bills, both in committee hearings and on the floor in debate, to refer the tax increases for prior approval by a vote of the people (as required under the clear letter and intent of the Taxpayer’s Bill of Rights)  or, failing that, to at least allow a referendum in opposition to the tax increases.  All were shot down, again on an overwhelmingly party-line vote.

It is increasingly clear that many legislators - supposedly elected as representatives of the people of Colorado - arrogantly deride and ignore the very citizens who are ultimately their employers, in favor of well-organized special interests constantly seeking to expand the power of government.  It is also increasingly clear that constitutional limits on government power are an essential check and balance to this constant hunger for ever more power and control over your life.  Finally, it is now abundantly clear that the supposed guardian of those constitutional limits on government power - the judicial branch, specifically the Colorado Supreme Court - has failed in its duty to uphold the Constitution and protect the citizens of Colorado from legislative abuses.

Refuse to be a victim of government abuse of power - you CAN exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (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, instead of rule by an oligarchy of activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices!

After missing out on testifying during the first (and very extended) day of hearings on the “Dirty Dozen” tax increase bills on Wednesday/Thursday and being repeatedly interrupted and ultimately gaveled down when offering opposition testimony earlier in the morning, Clear The Bench Colorado Director Matt Arnold was finally allowed to testify in opposition to one of the final bills under consideration (House Bill 10-1199: Net Operating Loss Deduction (Ferrandino/Heath) - Limits net operating losses to $250,000 for the next three years) at nearly high noon (appropriately?) on Friday.

Following the previous experience of repeated interruptions, Director Arnold spent some time before returning to the witness chair in writing up some prepared remarks, which follow:

I rise again in opposition to yet another unconstitutional stealth tax increase under consideration by this committee.

I will not appeal to your civility - by your conduct and demeanor, it is apparent that you have none.

I will not appeal to your respect for the Colorado Constitution and your oath of office - it is apparent that you have none.

I will not appeal to your sense of shame - again, it is clear that you have none.

I will address the specifics of this particular bill - and the inevitable impacts to business that will result, as well as the clear violations of the Colorado Constitution (Article X, Section 20 - TABOR).

There can be no question but that this bill represents “a tax policy change…  resulting in a net revenue gain” and therefore, under the Colorado Constitution, requires a vote of the people.

I am acutely aware of the anti-constitutional ruling of the Colorado Supreme Court in the “Mill Levy Tax Freeze” case that put these tax credits & exemptions on the chopping block, and the interpretation of that language that some among you feel justifies this stealth attempt at increasing the tax burden on Colorado citizens and businesses.

Subsection (4)(a) [the requirement that tax increases receive prior approval by a vote of the people] must be read in conjunction with the other provisions of article X, section 20; specifically, the subsection (7) revenue limits. When read together, it becomes apparent that a “tax policy change directly causing a net tax revenue gain to any district” only requires advance voter approval when the gain exceeds one of the subsection (7) revenue limits. …

To avoid such a result, we find that a “tax policy change directly causing a net tax revenue gain” only requires voter approval when the revenue gain exceeds the limits dictated by subsection (7).

Even under this dubious interpretation, this particular bill - because it imposes additional tax increases that will fall AFTER suspension of the subsection (7) limits due to Referendum C EXPIRE - is an even more clear violation of the Taxpayer’s Bill of Rights.

39-22-504. Net operating losses. (6) (a) NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, THE MAXIMUM AMOUNT OF NET OPERATING LOSS THAT A CORPORATION MAY SUBTRACT FROM FEDERAL  TAXABLE INCOME PURSUANT TO SECTION 39-22-304 (3) (g) FOR A TAX YEAR COMMENCING ON OR AFTER JANUARY 1, 2011, BUT PRIOR TO JANUARY 1, 2014, IS TWO HUNDRED FIFTY THOUSAND DOLLARS.

For that reason, you are failing in your fiduciary duty to the citizens of Colorado by attempting to pass legislation that cannot pass Constitutional muster, and WILL fall to the inevitable legal challenge - even under the expansive definitions adopted by the current Colorado Supreme Court majority.

On the business front - this bill unfairly penalizes those businesses who have toughed out the worst hits just when they might be getting on the path to recovery.  Adding additional tax burdens on businesses struggling to escape bad years will RETARD any incipient recovery, delaying their ability to create jobs and generate revenue (which will have a net negative effect on revenues for the state).

Playing semantic games about “repealing” vs. “deferring” the tax credit is disingenuous - forcing businesses to provide the government an interest-free loan is a tax by any other name - and smells just as rank.

Pretending that not having funds available NOW - opportunity costs - does not impact business is either disingenuous or shockingly ignorant of economic facts.

Businesses also rely on a certain amount of regulatory stability and generally on the rule of law - changing the rules in the middle of the game decreases investment and willingness to take risk.

This bill will not only damage businesses, but also violate the constitutional rights of Colorado citizens to exercise prior approval on tax increases.

Following my testimony, the committee members weighed in with their own statements and comments.  Rep. Cheri Gerou (R-HD35) graciously apologized on behalf of the committee for the chair’s earlier abusive conduct.  Rep. Daniel Kagan (D-HD3 by way of Great Britain) rebuked criticism of the bill on constitutional grounds and continued by lecturing on the Constitution - all while insisting “I will not enter into a debate on the Constitution” (of course not; lecturing from the rostrum is much more his style).  [Interestingly enough, Rep. Kagan - who's income is derived exclusively from overseas business holdings, presumably NOT subject to the tax increases he is proposing - seems to have a unique perspective on public-private sector relations]:

“We are operating as a collective… to provide supports to the private sector.”  ”We cannot provide them without some money - we just need a ’small slice’ of everyone’s money to provide these service. We’re in a joint venture to ensure that industry thrives.”

Rep. Judd, although on greatly improved behavior, could not seem to stop himself from interrupting on several occasions - including one in which he stated that he “would not stand… for interruptions.”  (Seems to be lacking the irony gene).

At least this time, testimony was not “gaveled closed” prior to completion.

Don’t let YOUR voice be “gaveled down” this November - you CAN exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (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, instead of rule by an oligarchy of activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices!

From the “any press is good press” files…

Appearing Friday morning to testify against the remaining unconstitutional stealth tax increase bills that had NOT (yet) been rammed through on a party-line vote by the Colorado House Finance Committee over the overwhelming opposition of citizens appearing en masse Wednesday/Thursday (specifically, against House Bill 1195: Suspend Agricultural Sales and Use Tax Exemption (Ferrandino/Heath)), another unconstitutional tax increase on Colorado ranchers and farmers, Clear The Bench Colorado Director Matt Arnold may have crossed a linguistic line in response to abusive conduct by the committee chair, Rep. Joel Judd, in a story that appeared on KMGH-7 nightly news and online:

Witness calls committee chairman an “arrogant SOB”

Responding to repeated interruptions by the chair, who ultimately did not allow the witness to get back to the specifics of the bill being heard before “gaveling down” discussion and closing testimony on the bill (with a malicious, triumphant gleam), it is true that the witness… stated: “You are a rather arrogant SOB, are you not, sir,” as he was leaving the table.

Although the use of the term “arrogant” was, if anything, an understatement (by their conduct and demeanor, Rep. Judd and others clearly do not believe that either element of the term “Civil Servant” should apply to them), the use of the term “SOB” (yes, it was the acronym) was clearly inappropriate.

Clear The Bench Colorado disavows any perceived aspersion on Rep. Judd’s parentage - such was not intended; it’s quite likely that his mother is a sweet little old lady who would be ashamed at his lack of manners and common courtesy.

Clear The Bench Colorado further apologizes to all dogs and dog-lovers throughout the state - particularly the female dogs - for inappropriately associating them with Finance Chairman Rep. Judd.  Clear The Bench Colorado recognizes the foremost qualities of canines as being both loyal & lovable - attributes clearly NOT shared by the House Finance Committee chair.

In all seriousness - it is a sad statement that the media coverage of this ‘linguistic flap’ has focused NOT on the frequently disrespectful, often abusive treatment of citizens (myself least among them) who took time from their jobs, family, and friends to come down to the state Capitol to testify against these dozen distinct assaults on their livelihood, but played up the “if it bleeds, it leads” aspect of the statement by one citizen who dared speak out against the arrogance on display.

Don’t let YOUR voice be “gaveled down” this November - you CAN exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (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, instead of rule by an oligarchy of activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices!