Clear The Bench Colorado Director Matt Arnold appeared before the Larimer County Republican Breakfast Club on Monday, June 1st to present the case for restoring accountability to Colorado’s Supreme Court. Highlighting the “key three” Colorado Supreme Court decisions handed down by the current majority, led by Chief Justice Mary Mullarkey, that most egregiously violate the Colorado Constitution and “rule of law”, he strongly advocated a “NO” vote on retention when these justices must next face Colorado voters in 2010.
A summary of his remarks (note: this is not a word-for-word transcript) appears below:
Thank you for inviting me to appear before your group; it’s always encouraging to encounter civic-minded people actively engaged in informing themselves on policy and political issues.
Typically, when people discuss politics, they think of legislators - Federal and State, House and Senate - or executives, such as the president, governor, county commissioners or city mayors.
But in our system of government, there is a 3rd branch that is equally important: the judiciary.
In Colorado, our judges are not elected - and many of them have come to believe that they are also unaccountable. They are not. Every ten years, even our Supreme Court justices must face voters and receive their approval in order to stay in office. In 2010, FOUR of them - Chief Justice Mary Mullarkey, along with justices Michael Bender, Alex Martinez, and Nancy Rice - need your approval in order to stay in office and continue taking away your rights. DON’T GIVE IT TO THEM!
This Supreme Court recognizes no limits on its power. THIS majority has arrogated to itself the ultimate power to decide all questions - legislative, executive, or judicial. For them, THEIR WORD IS LAW - according to them, the Constitution is what THEY say it is. They do not recognize a standard, or limit.
However, there IS an objective standard by which to judge our Colorado Supreme Court justices, and a limit on their power: the Constitution. The Constitution is the People’s law; it limits the power of government, generally, and judges in particular. Despite their position as arbiters of applying the Constitution, judges - even Supreme Court justices - are beholden to it, and MUST obey the written letter of the law. Their oath of office, and judicial standards of performance, demands it.
The current majority on our Colorado Supreme Court have betrayed that sacred trust - demonstrated time and again by their arbitrary and capricious rulings in a variety of cases. I’m going to highlight the most impactful and egregious of these - what I term the “key three” - and build the case on why these “unjust justices” should NOT be retained in office.
Recent Colorado Supreme Court Rulings - Against the Constitution:
A. Mill Levy Tax Freeze case (16 March 2009)
WHAT’S IN YOUR WALLET? The sticky fingers of the legislature - aided and abetted by the Colorado Supreme Court.
The majority’s ruling upholding the Mill Levy Tax Freeze ignored the clear letter of the law, ignored and violated TABOR, and violated the rights of the people of Colorado (entitled to a vote on “tax policy changes… resulting in a net revenue gain“). The majority justices just made up the rationale for their ruling as they went along. The impact?
- $117 Million in additional taxes levied on the people of Colorado - and counting.
- Deprived people of the right - guaranteed in the Constitution - to have a say on tax increases.
- Made local school board LIARS after the fact - after they had campaigned on the promise that “de-brucing” would NOT result in an increase in taxes. This was a Colorado Supreme Court-imposed breach of faith between local government and the people they represent.
Additional impacts of this case are still developing. Literally hours after the Office of Legislative Legal Services informed the Joint Budget Committee that the ruling also opened the door to eliminating long-standing tax credits and exemptions previously sheltered by TABOR (the now-notorious “April Fool’s Briefing“), Rep. Mark Ferrandino proposed a new tax - others are sure to follow, as an increasingly emboldened (and revenue-hungry) legislature seeks new sources of funding.
A few excerpts from Justice Eid’s scathing dissent help to illustrate just how far the majority had to stretch (or outright redefine) clear constitutional language in order to reach their verdict:
“The majority’s rationale for its decision - namely, that SB 07-199 is simply not covered by Article X, Section 20 - is, in my opinion, utterly unconvincing… it is undisputed in this case that, prior to SB 07-199, state law prevented local school districts from keeping the $117 million in excess revenues that they had collected after conducting waiver elections. It is similarly undisputed that SB 07-199 removed that provision of state law… SB 07-199 is thus a ‘tax policy change directly causing a net tax revenue gain to any district’ under the plain language of Article X, Section 20 and requires a vote of the people.”
Even Colorado State Treasurer Cary Kennedy - who is, by the way, a Democrat - “acknowledged that SB 07-199 was a state tax policy change.”
Eid notes: “Subsection (4)(a) - in plain, straightforward, and unambiguous language - requires ‘voter approval in advance’ for such a “tax policy change.”
So how did the majority reach the opposite conclusion? Simple - by redefining the language. This semantic skullduggery goes beyond even a Clintonesque ”depending on what the definition of ‘is’ is…” calling the Mill Levy Tax Freeze a “reflect[ion]” of local school district elections, a “recogni[tion] of those elections,” an “implement[ation] of those elections, a “stabiliz[ation] of mill levies,” a “legislative direct[ion] concerning use of those funds…” “Whatever label is affixed, the result is the same: SB 07-199 enacted a change in state tax policy, and therefore voter approval was required.”
“The purpose of Article X, Section 20 “is to require that the voters decide for themselves the necessity for the imposition of new tax burdens. … Today the majority deprives the voters of this opportunity regarding SB 07-199. I therefore respectfully dissent.“
B. “Telluride Land Grab” case (2 June 2008)
This case upheld the exercise of eminent domain by the town of Telluride over property OUTSIDE the town limits - and thus, one would think, outside the jurisdiction of the town. However, the majority on the Colorado Supreme Court ruled that, because Telluride is a “home rule municipality” that limits - including those imposed by law by the state legislature - simply don’t apply. The upshot of the ruling is that ANY home rule entity (municipality) can exercise eminent domain ANYWHERE in the state (NOT bounded by geography).
Also, the ruling denied the role of the legislature in prohibiting or limiting extraterritorial condemnations - thus further disenfranchising the people. Again, the court took over the function of the legislature, and undermined the rule of law and government accountability to the people.
The ruling majority on the Colorado Supreme Court eliminated standards and guidelines - then declared that because of the lack of standards, the decision rests solely at the discretion of the reigning majority of the Colorado Supreme Court.
THIS is our Kelo case - if you’re a property owner, be afraid… be very afraid.
C. Salazar vs. Davidson - Congressional Reapportionment Case (1 December 2003)
Another infamous ruling by the Colorado Supreme Court - delivered by Chief Justice Mullarkey, with Justices Bender, Martinez, and Rice concurring, Justice Coats and then-Justice Kourlis dissenting - created the odd 2/3-donut-shaped 7th Congressional District as a gift to current Rep. Ed Perlmutter (who waited two terms to claim it).
The key issues with the resdistricting decision were not so much the creatively invented criteria (”competitiveness”) or odd shape of the resulting district, but the rationale for the decision (indeed, the rationale for the Colorado Supreme Court even participating in the decision). The critical issue was the fact that the Colorado Supreme Court majority arrogated to itself the powers and privileges of the legislative branch - declaring that “we are part of the general assembly” for the purpose of redistricting.
“Three words in the state constitution grant the General Assembly exclusive power to draw Colorado’s congressional districts: “General Assembly shall.”
However, the ruling majority declared: “The term ‘General Assembly’ encompasses the entire legislative process, as well as voter initiatives and redistricting by court order.”
“In sum, the term ‘General Assembly’ in the first sentence of Article V, Section 44, broadly encompasses the legislative process, the voter initiative, and judicial redistricting. Regardless of which body creates the congressional districts, these districts are equally valid.”
The circularity of the logic - ’judicial redistricting is part of the definition of General Assembly, therefore we are justified in declaring ourselves part of the General Assembly for the purpose of conducting judicial redistricting’ - along with the breadth of seizure of power (essentially declaring that for redistricting purposes, ‘we are the government’), is simply breathtaking. When these judges rule from the bench, they really rule from the bench.
As Justice Kourlis noted in her dissent: “With its holding today, the court significantly alters our form of government.”
Unlike Dave Barry, they really are making this up as they go along.
As an aside - although it’s not one of the “key three” - here in Larimer County, you were directly impacted in your electoral politics last year when the highly partisan Colorado Supreme Court decided to “bring home the Bacon” for Democrat legislative candidate Bob Bacon and the teacher’s union. In May of last year (2008), Colorado Education Association v. Rutt upheld the ability of union employees to coordinate campaign activities in violation of campaign finance law - with the result that Bacon benefited from extensive resources (material, offices, and personnel) offered by the CEA in support of his campaign. Bacon thus owes his office not only to the unions, but to the Colorado Supreme Court.
In conclusion:
Inform yourselves, and help to inform others, about the unconstitutional rulings of this Colorado Supreme Court majority.
Visit Clear The Bench Colorado frequently - we are a resource not only of information on these rulings (our Reference Library is growing broader and deeper each week) but also on related legislation, events, and developments. Also, we provide an opportunity for citizens and legal professionals to Sound Off! on issues, events, and rulings and contribute personal experiences, insight, or knowledge.
Finally, please help support the cause with your financial contributions - freedom isn’t free.
Thank you.
