Political enemies of Attorney General John Suthers are STILL attempting to use his principled (albeit uncharacteristically bold) statement that he would vote “NO” on retaining 3 of the 4 Colorado Supreme Court justices on the ballot (Justices Michael Bender, Alex Martinez, & Chief Justice Mary Mullarkey) as a political club with which to rhetorically beat him - continuing to propagate knowingly false statements accusing him of partisan bias in his pronouncement.

State Senator Morgan Carroll - appearing at a nonpartisan gathering of politically-interested people at Liberty On The Rocks (Red Rocks) - stuck by her earlier accusation against Attorney General John Suthers of “partisan bias” and her call for his impeachment when challenged to defend her statement.

While Senator Carroll is certainly entitled to her own opinion, she does NOT get to pick her own facts - her attack on the Attorney General intentionally misrepresented his statement in order to score political points.  In other words - as previously noted in this space -  she lied.

Senator Morgan Carroll - a Democrat, and therefore presumably a political enemy of Republican Attorney General Suthers - asserted in a blog post entitled “The Role of the Attorney General” that the AG stated

he would not vote for retention for any of the Colorado Supreme Court Justices who were originally appointed by a Democrat.

The proper measure for retention of a judge is their judicial performance - not political party.  The Judicial Performance Commission makes these reports available on non-partisan criteria pertaining the experience of lawyers, parties and public with the Judges.

For the states highest law enforcement officer to call for a partisan purge and partisan stacking of the bench raises serious questions.

We need to protect the importance of this office to ensure that it does not get subverted to a partisan agenda on either side…

Carroll’s polemic intentionally misrepresents both the AG’s statement and the rationale for his position, in a blatant attempt at partisan spin.  Suthers did NOT state that he “would not vote for retention for any of the Colorado Supreme Court Justices who were originally appointed by a Democrat.”  In fact, he stated that he would vote “NO” on 3 of the 4, and “yes” on the other (ALL 4 are Democrat appointments) on the basis of his perception of the constitutionality of their rulings, NOT their partisan affiliation.  Accusations of a “partisan purge and partisan stacking of the bench” are knowingly false statements - perhaps the AG has grounds for a libel suit against Sen. Carroll?

We can assert with confidence that Carroll’s statement was knowingly false not only because she cited as the source for her attack the Post article  (AG Suthers may not back 3 on state Supreme Court) which, although itself containing some spin, accurately reported the AG’s statement.

We can also assert with confidence that Carroll knows the facts because we told her so - commenting on her post (which comment she refused to publish - OK, her site, her rules - CTBC also moderates comments, but allows both positive and negative comments to be published) and now in person.

Our response to Senator Carroll’s possibly libelous, certainly disingenuous statement:

Senator Carroll: Clear The Bench Colorado agrees with your statement that “The proper measure for retention of a judge is their judicial performance - not political party.”  Unfortunately, the Judicial Performance Commission reviews - despite the generally good intentions of the participants in the process - have NOT provided an effective, substantive evaluation of the performance of our courts, particularly at the highest levels.

The Denver Post article has done readers a disservice by casting the retention elections in partisan terms. This is absolutely NOT a partisan issue - we can (and apparently do) agree on that.  Rather,it is a matter of the justices upholding the Constitution and the rule of law (important to ALL parties).

Also, it is inaccurate to assert that the Attorney General stated that “he would not vote for retention for any of the Colorado Supreme Court Justices who were originally appointed by a Democrat.”  In fact, he stated that he would vote “NO” on 3 out of the 4 justices appointed by Governor Romer (and would vote yes on Justice Nancy Rice). The Denver Post article said as much.

We need to protect the importance of our highest court to ensure that is does not get subverted to a partisan agenda on either side. Unfortunately, at least 3 out of the 4 justices (CTBC would argue that it’s 4 for 4) have consistently displayed in their rulings that they endorse such a role for the judiciary.  This behavior should not be tolerated from our justices - vote “NO” on their retention in November 2010. Clear The Bench, Colorado!

Clear The Bench Colorado exists not to attack our institutions, but to defend them - including the “Missouri Plan” that mixes judicial appointments with retention elections, in a well-intentioned attempt to minimize politicization of the judiciary.  Unfortunately, the politicization of the Colorado judiciary has long since been perpetrated by the unconstitutional rulings and pursuit of personal agendas by the four (now, three) ’unjust justices’ of the Mullarkey Majority (Michael Bender, Alex Martinez, and Nancy Rice - Chief Justice Mary Mullarkey quit rather than be held accountable) who are facing the voters in this November’s retention elections.

Exercise YOUR right to vote “NO” on the 4 ‘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 being seized through eminent domain abuse, and your right to enjoy the benefits of the rule of law, instead of suffering rule by an oligarchy of activist, agenda-driven “justices.”  Please help support Clear The Bench Colorado with your own comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices in November 2010!

For most of the past year, Clear The Bench Colorado has been predicting that the Colorado legislature would not be proposing any new tax increases in this year’s legislative session - at least, not in name.  Good news, right?  Of course, the bad news punchline is that, thanks to the Colorado Supreme Court’s Mullarkey Majority rulings on the “Mill Levy Tax Freeze” case and the “Fees are not Taxes” case - they won’t have to; they’ll just call it a “freeze”, a “fee”, or the “elimination of an existing tax credit or tax exemption.”

Until today, these predictions have been borne out; although the legislature has already come up with numerous “revenue-generating mechanisms” this year to avoid that pesky TABOR requirement to seek voter approval before taking your money (such as, most prominently, the notorious “Dirty Dozen” tax increase - er, elimination of tax credits or exemptions - bills which dominated the start of this year’s legislative session), the legislature had so far NOT openly proposed any new “taxes”.

This one is - wait for it - “for the children”: Proposal would raise taxes for Colorado schools

“Rep. Debbie Benefield of Arvada announced Wednesday that she would introduce a referred measure asking voters this November to amend the state constitution to give lawmakers open-ended authority to raise taxes to cover education expenses.

Currently, the Taxpayers Bill of Rights requires lawmakers to get voter approval for any proposed tax increase. Benefield’s proposal would make a permanent exception for hikes that fund schools. …

Judy Solano, Mike Merrifield and Joe Rice also stood in support.”

Well, at least they’re asking this time…  although it’s kinda like the neighborhood bully who repeatedly beats you up all week for your lunch money, then comes back on Sunday and asks you to contribute more money for his anger management and substance abuse therapy.  Sure, it’s a good cause, but…

Besides, the excuse that “it’s for the children” is wearing a bit thin.  The 2007 School Finance Act, passed through that year’s Senate Bill 199 (upheld in the notorious “Mill Levy Tax Freeze” ruling) massively increased property taxes “for the children”:

Ritter praised the court’s decision. “As you know, the Colorado Supreme Court today ruled in the state’s favor in what has become known as the ‘mill levy’ case,” he said in a prepared statement. “But the real winners today are Colorado’s children, Colorado’s families and Colorado’s schools.”

 Except that the revenues collected didn’t go towards school funding after all: TURNS OUT, MILL LEVY INCREASE ISN’T REALLY ‘FOR THE CHILDREN’

“Fast-forward several weeks, and it turns out Colorado schools won’t see an additional dime despite higher property tax collections. At least not this year. The Denver Post reported Sen. Bob Bacon, D-Fort Collins, saying the mill levy freeze saved the state about $130 million this fiscal year because the state didn’t have didn’t have to backfill school coffers in order to meet a mandated per pupil allotment.”

Well, that’s Strike One on revenue collection “for the children” - what’s the next pitch?

That would be the attempt to bypass the legislative process entirely and just sue the state in court to get increased funding for schools - ironically, using taxpayer dollars to pay for both sides.  The latest example of using the courts to take a bite out of your rights (instead of defending them) was enabled thanks to a Colorado Supreme Court ruling last October (Lobato v. State of Colorado) allowing the lawsuits to go forward, overturning lower courts that had held (correctly) that school funding decisions are a matter of policy - not law - and are therefore the job of elected legislators - not appointed judges - to decide.

However, since the lawsuits are likely to be tied up in the courts for some time, they are unlikely to succeed in bringing in any revenues “for the children” (as opposed to the copious revenues that WILL be generated in the meantime “for the lawyers”) anytime soon - so this approach is a costly “foul ball.”  Strike Two.

Next up: the “Dirty Dozen” tax increase bills - courtesy of that same “Mill Levy Tax Freeze” ruling that raised property taxes - were justified (again!) as being “for the children” (and schools, and teachers…) - as expressed both in floor debates and in (taxpayer-funded?) fundraising letters to constituents:

“Increasing taxes “means $145 million we do not have to cut from K-12 education,” the Democrat fundraising e-mail said, specifically claiming that one tax could save up to 1,700 jobs for teachers.”

However, the claim is disingenuous, at best, according to several state legislators:

“Democrats know full well that K-12 education won’t see an extra dime from these tax increases,” said Sen. Nancy Spence, R-Centennial.  ”It’s time for the Democrats to stop lying to the public about where this money will go.”

That would be - Strike Three?

Unfortunately, the batter’s still not out (yet!) - apparently, the rules get bent a bit in favor of those coming after your wallet.  Benefield may be swinging for the bleachers with her latest tax proposal - but hey, with the umpire(s) on your side, why not?

The question is, why should “We The People” wish to give “open-ended authority to raise taxes” and create a “permanent exemption” to the Taxpayers Bill of Rights [which] “requires lawmakers to get voter approval for any proposed tax increase?” Particularly when any loophole created - even if narrowly tailored to only “fund schools” or support education - will be aggressively exploited by future legislators and expanded on by the current majority on the Colorado Supreme Court.

Our Constitution has already been shredded enough in the name of legislation and court rulings “for the children” with a cynical, activist Mullarkey Court leading the way.

Although it’s almost April 1st, don’t get fooled again - exercise your right to vote “NO” on the four Colorado Supreme Court ‘unjust 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 home and business from seizure by rapacious governments, 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 your contributions - and vote “NO” on retaining these unjust justices on the bench for another 10-year term!

The massive expansion of Federal government power that culminated in this last weekend’s “historic” vote for what is essentially a takeover of healthcare is an unprecedented intrusion into the most personal of human rights and decisions, in the face of overwhelming popular opposition and openly engaging in the worst kind of dirty machine power politics (arm-twisting, vote-buying and out-and-out bribery that would get any regular citizen thrown in jail…)

It is increasingly clear that We The People cannot trust our elected officials (who increasingly appear to view themselves as rulers, not representatives of the citizenry) to restrain themselves from abusing the power that we have placed into their hands.

The single positive result of this repugnant display - which may not be new, but has never been so apparent - is the re-awakening of popular interest in constitutional restraints on the scope and extent of government authority.  The ongoing devolution of our constitutional republican form of government (limited powers, delegated authority based on the consent of the governed) into mob-rule democracy (constrained only by momentary and shifting balances of power) has highlighted the need for limits like never before - and is also raising awareness of the role of our 3rd branch of government (the judiciary) in either undermining or upholding those limits, which constitute the very essence of the rule of law which safeguards our rights and our liberty.

Hopefully, our nation’s constitutional reawakening will begin to deliver us from the precipice. There is no constitutional authority for two-thirds to three-quarters of what Congress does.

Our Constitution’s father, James Madison, explained: “The powers delegated by the proposed Constitution to the federal government, are few and defined … (to be) exercised principally on external objects, as war, peace, negotiation and foreign commerce.”

When government - at the behest of our elected or appointed officials - oversteps its authority, as laid out in our “rulebook” (the Constitution), it is up to We The People (who have delegated specific powers and authority, but retain all rights) to stop them.  The Courts provide the mechanism to do so without violence - and our judges, especially at the highest levels (state and Federal Supreme Court) fill the role of referee, applying the laws and ensuring that the rules in our “rulebook” are observed and obeyed.

Several state Attorneys General - including Colorado Attorney General John Suthers - have joined to file a lawsuit in response to the Federal government attempted takeover of healthcare as “an unconstitutional expansion of federal power” that violates the rights of states and individuals:

Suthers said the health care bill, by requiring all Americans to buy health insurance, violates the 10th Amendment to the U.S. Constitution, which says “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Given the political and procedural difficulties inherent in repealing laws once passed - including a certain presidential veto - it may well be that the ONLY feasible “way to stop this federal overreach is through the courts.” (”Kill It In Court” editorial)

When judges fail in their duty to apply the law in accordance with the “rulebook” (our Constitution) - either ignoring existing law, or inventing new law (”legislating from the bench”) they have abandoned their proper role as referees and become players - or bystanders.  Both alternatives are dangerous - our system cannot abide judges who cannot, or will not, uphold the rule of law.

 In Colorado, we have experienced the worst examples of this - a majority of our state Supreme Court justices have repeatedly demonstrated a willingness to ignore, re-write, or otherwise violate our state Constitution.  Fortunately, We The People of Colorado have the right, the opportunity, and the civic duty to hold our judiciary accountable through the process of retention elections - phrased in the form of the ballot question: “Should Justice X be retained in office?  Vote Yes or NO.”

Yes, 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 home and business from seizure by rapacious governments, 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 your contributions - and vote “NO” on retaining these unjust justices on the bench this year!

The Clear The Bench Colorado message is spreading around the state…

Following the recent Denver Post front-page, above-the-fold coverage of the “tough vote” facing Colorado Supreme Court justices in the upcoming statewide elections this November and the resulting domination of the Post’s “letters” section the following week, Sunday’s Pueblo Chieftain published a guest editorial by Clear The Bench Colorado Director Matt Arnold urging Colorado citizens to “vote against retention of four state Supreme Court justices” in the November elections.

That editorial is published in its entirety below:

Clear The Bench

Vote against retention of four state Supreme Court justices

By MATTHEW ARNOLD
CLEAR THE BENCH COLORADO

Clear the bench, Colorado! The most important four votes you can cast in 2010.  Yes, 2010 is shaping up to be a pivotal year — for our country as a whole, and for Colorado in particular.

   Campaigns for governor, U.S. senator, Congress and the state legislature are already at a fever pitch. But the most important votes Colorado citizens will cast this year aren’t for any of those elected offices.
  The most important votes Coloradans can cast this year are “NO” votes against the four Colorado Supreme Court justices asking to be retained in office.
Did you know that 2010 is a year in which four Colorado Supreme Court justices must receive the approval of Colorado voters to stay in office? Did you know that they get 10-year terms?  Did you know that these four Colorado Supreme Court justices have done the following at the expense of democratic and representative government at the local and state level?

• Upheld the unconstitutional “mill levy tax freeze” property tax increase.
• Eliminated constitutional protections for tax credits and tax exemptions — leading to the “Dirty Dozen” tax increase bills recently passed by the Colorado Legislature.
• Enabled taxes to masquerade as “fees” —  leading to the massive FASTER car tax increase.
• Abused eminent domain laws, endangering property rights (your home or business).
• Usurped the legislative power to decide “proper” school funding levels.

   Thanks to rulings by the activist (Chief Justice Mary) Mullarkey Majority on Colorado’s Supreme Court, we’ve suffered all of these tax increases (property taxes, car taxes — er, registration “fees” —  and now the “Dirty Dozen” tax increase bills taxing everything from candy and soda, online software downloads, agricultural products like pesticides and animal drugs and hormones needed to ensure safe foods, energy used in producing every good or service in Colorado, Internet sales (they want to track — and tax — things you buy online), even doggy bags — all without a vote of the people, even though the people’s vote is required by Colorado’s constitutional Taxpayers Bill of Rights (TABOR) to approve what are, in effect, tax increases.

   Did you know that the unconstitutional “Dirty Dozen” package is exploiting a few lines in last year’s “Mill Levy Tax Freeze” (property tax increase) ruling?

   Last year, the Legislature found out about that part of the ruling on April 1 — only enough time for them to pass just one bill (the tobacco tax increase), just like a bad April Fool’s Day joke.

   These tax “jokes” can’t be very funny to Pueblo residents, who are being hit hard by tax increases, particularly the energy tax (this year’s HB1190) and the car tax (last year’s SB108):

   Evraz Rocky Mountain Steel in Pueblo, the state’s largest energy user aside from public utilities, said it may have to cut 30 to 120 jobs because of the energy tax.

   The Car Tax has already hit many motorists with a $40-$50 increase (as much as triple or quadruple the previous year’s charge) in the first year alone (guess what, folks — two more years of increases to go!).

   Our Constitution was written and adopted specifically to limit the scope and power of government — to restrain government, not to give the Colorado Supreme Court free rein over the rights of citizens.

   Inform yourself on what the Constitution actually says — it’s your law, not theirs — and not nearly so complicated as they would have you believe.

   “The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.” — Supreme Court Justice Felix Frankfurter, Graves v. New York, 1939.

   Colorado Supreme Court justices are — and must be — accountable: to the law, to the Constitution, and ultimately, to the citizens of Colorado (”We The People“). Retention elections are the only mechanism by which the people of Colorado can hold our Supreme Court justices accountable.

   Stand up for your constitutional rights and privileges. Don’t allow four justices of the Colorado Supreme Court to continue to rule them out of existence.

   Vote “NO” on the four “unjust justices” of the Mullarkey Majority (Justices Michael Bender, Alex Martinez and Nancy Rice, and Chief Justice Mary Mullarkey) this fall. Election Day is Nov. 2.

   Let’s clear the bench, Colorado!

Yes, 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 home and business from seizure by rapacious governments, 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 your contributions - and vote “NO” on retaining these unjust justices on the bench!

It’s been an eventful week in Colorado - unfortunately, so eventful that it’s been hard to keep up.

Unfortunately, I haven’t had the time to give any one of these issues the attention (and analysis) they deserve this week - particularly the Colorado Supreme Court’s ruling on Amendment 54, which calls for a thoughtful (and time-consuming) assessment, particularly in the context of other cases on campaign finance and political speech coming before the court.  It should be interesting, for example, to contrast the court’s ruling on one set of restrictions on political speech with another.

In other news, Governor Ritter signed nine tax increase bills into law this week (part of the “Dirty Dozen” tax increase bills exploiting last year’s “Mill Levy Tax Freeze” ruling to circumvent the TABOR requirement to receive prior voter approval before raising taxes.  As previously noted, many (if not all) of these tax increase bills (now laws) are likely to be challenged in court as violations of the Colorado Constitution - almost certainly to end up before the Colorado Supreme Court sometime next year, making the composition of the court an issue of extreme interest to the businesses, ranchers & farmers, and the employed (and those seeking employment) and consumers (basically, everyone in Colorado - even dogs!) hurt by these (dubiously constitutional) tax increases.

Another bit of news related to the Colorado Supreme Court that escaped much notice:  Lobbying groups want taxpayers to underwrite their School Funding Lawsuit against the State of Colorado.  Yes, that’s right: special-interest lobbyists want taxpayers to fund a lawsuit against the state (defended by taxpayer money).  The goal of these lobbyist groups is to get each school district to help fund the cause…

How is this related to the Colorado Supreme Court?  Well, the lawsuits are attempting to exploit the court’s ruling in the Lobato school funding case - in which the Mullarkey Court overturned lower courts that had held (correctly) that school funding decisions are a matter of policy - not law - and are therefore the job of elected legislators - not appointed judges - to decide.

Sending issues of educational budgetary policy to the courts (instead of the appropriate venue of elected legislators or school boards) is troubling not only on constitutional grounds, but as a matter of precedent and policy; in fact,

“most states realize the bad policy and bad consequences of adequacy lawsuits and are moving away from them. Colorado is out of sync for its courts to be sanctioning such action.“

One short week, two big campaign finance cases, three MAJOR examples of how much the Colorado Supreme Court affects all of us - on so many levels - and why your four “NO” votes in the upcoming retention elections for the unjust justices of the Mullarkey Majority are the MOST important votes you can cast in this very important election year.

Yes, 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 home and business from seizure by rapacious governments, 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 your contributions - and vote “NO” on retaining these unjust justices on the bench!

This Sunday the “Letters to the Editor” section of the Denver Post was dominated by comment on last Monday’s Denver Post’s front-page, above-the-fold coverage of the “tough vote” facing Colorado Supreme Court justices in the upcoming statewide elections this November.

Much of the letter-writing was devoted to the obligatory rants bashing Jon Caldara and John Andrews, also quoted in the article - which I find amusing since (although I certainly appreciate their supportive comments) neither one of them is driving the train of the non-retention campaign (”not Independence nor Backbone nor either Jo(h)n - just little ol’ me - Underdog.”  Er, Clear The Bench Colorado).

Aside from the rants and Jo(h)n- bashing, though, some of the letters (not ALL were negative) raised some interesting points, which I will attempt to address:

“The headline of your article in reference to the retention of four Colorado Supreme Court justices effectively makes it an issue, whether it is or not.“

Actually, for once, the Denver Post is reporting news, not making it.  The “retention of four Colorado Supreme Court justices” is already very much an issue this election year - in fact, it is THE issue in Colorado elections this year.

“The debate over eliminating or suspending tax credits and exemptions has quickly become the defining issue of the 2010 session.“

Over the last month, the legislative session has been dominated by news about the “Dirty Dozen” tax increase bills that owe their very existence to an expansive interpretation of language in last year’s notorious “Mill Levy Tax Freeze” ruling (that upheld an unconstitutional - and permanently upwards-ratcheting - property tax increase).  That ruling also provided the legalistic pretense for the legislative action to impose tax increases (via the mechanism of repealing existing tax credits and exemptions - which is still a “tax policy change resulting in a net revenue gain”) in violation of the TABOR requirement to receive prior voter approval.

Other legislative actions, such as last year’s unconstitutional repeal of the Arveschoug-Bird 6% limit on the growth of general fund spending and the passage of the most unpopular tax increase in Colorado history (the FASTER car tax - er, registration “fee” increase) are also directly tied to the current Colorado Supreme Court majority’s consistent disregard for (if not active hostility towards) those sections of the Colorado Constitution (i.e. TABOR) with which they personally disagree.

The Mullarkey Court’s predilection for usurping legislative power and authority is not restricted to re-writing law.  They have also taken it upon themselves to claim the authority to determine the correct level of taxation and spending (constitutionally, powers reserved to the legislative branch) for school funding, and have also usurped the authority of the legislature to draw up Colorado congressional districts following the 2000 Census - a pattern which is likely to be repeated if these same justices remain in power following the upcoming 2010 Census.

Even the executive branch (gubernatorial) elections in Colorado are dominated by the same themes, due to soon-to-be-former Governor Ritter’s inextricable connection with the “Mill Levy Tax Freeze” property tax increase, the ‘FASTER’ Car Tax (er, “fee”) increase, the “Dirty Dozen” tax increase bills, and countless other proposed “fee” increases in violation of the Colorado Constitution (TABOR) requirement to first obtain voter approval.

From the litany of tax increases through erosion of property rights and other constitutional (and statutory) protections and looking forward to the post-Census reapportionment and redistricting processes - there is NO area of policy (and politics) unaffected by the Colorado Supreme Court.

That is why the MOST IMPORTANT votes that can be cast by Colorado citizens in this very important election year are four “NO” votes in the retention election of the Colorado Supreme Court justices subject to voter approval in retention elections.

It is also why voters must be provided with more extensive, substantive, and useful information on which to base their voting decisions.  “The high marks received by each justice through the system of evaluation in place” are NOT an endorsement of the justices, but rather an indictment of the weakness and inadequacy of the judicial performance review process (as noted in a previous Denver Post guest commentary article).  Despite the genuinely hard work and good intentions of the majority of the judicial performance review commissioners, the process (and end-products) are perhaps endemically flawed.

There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters.  If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do.  Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations.  Some commentators and observers have denigrated the narratives as a “rubber stamp” exercise for retaining judges.

Finally, another letter-writer asserts that the issue is really just an attempt “to abolish Colorado’s nationally acclaimed judicial selection procedure” (throwing in some conspiracy-theory mush about how the real goal “is to allow corporate contributions to buy judgeships” - where did that come from?)

That doesn’t even make any sense - it’s a complete non-sequitur.  Clear The Bench Colorado has consistently stated that our institutions - including the judicial merit selection and retention election process - are worthy of defense (albeit in dire need of improvement and reform).  Indeed, defending the institutions requires that the process be effective - and taken seriously, including the judicial evaluation and retention election elements.  Unfortunately, those aspects have suffered from a lack of attention - until now.

The ultimate responsibility - and authority - rests with the voters.  Clear The Bench Colorado urges all Colorado citizens to become informed about how the Colorado Supreme Court has aided and abetted assaults on their rights (and wallets!) with a consistent pattern of not following the Constitution where it doesn’t agree with their own agenda - and drawing the necessary and logical conclusions.

Clear The Bench, Colorado!

Become an informed citizen; conduct your own evaluation of the performance of these justices, based on how (and whether) they follow the Constitution and uphold the rule of law.  Armed with information, Yes, 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 home and business from seizure by rapacious governments, 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 your contributions - and vote “NO” on retaining these unjust justices in the upcoming November retention elections!

Following the Monday Denver Post’s front-page, above-the-fold coverage of the “tough vote” facing Colorado Supreme Court justices in the upcoming statewide elections this November, other media outlets around the state are picking up on the issue - which may become among the hottest political topics in Colorado this year.

Shamelessly mixing metaphors, Monday’s Denver Post front-page story - coming close on the heels of a guest commentary outlining weaknesses in the current judicial performance review process in this last Saturday’s Post, an earlier article noting the Attorney General’s remarks that he advocates a “NO” vote on three of the four justices scheduled for retention, and extensive coverage across the state on the “Dirty Dozen” tax increase bills - may have been the proverbial snowball that provided just enough critical mass to unleash a veritable avalanche of coverage on the issue of statewide retention elections for the Colorado Supreme Court this year.

Naturally, the “new media” was quickest to pick up on the topic, with articles such as Ballot 2010:  Supreme Court of Colorado and these news items about judicial performance evaluations and Clear The Bench Colorado picking up steam), along with an extensive listing of the various subterfuges, evasions, and outright constitutional violations enabled by the Colorado Supreme Court’s rulings in order to raise (or “freeze” at a higher rate) taxes, increase “fees” and eliminate other limits on taxing and spending by state government and capped by coverage of Sen. Chris Romer’s statement which “lauded last year’s controversial Colorado Supreme Court ruling that said a constitutional provision requiring tax increases to be put to a popular vote did not apply” - taking a stand against the rights of citizens so that the “legislature, thanks to the Supreme Court decision, has the right to be back in charge…”

“Old media” was not far behind in picking up on and amplifying the topic, such as the commentary  in Thursday’s Fort Collins Coloradoan (”Citizens should get to vote on taxes“), decrying a “misguided state Supreme Court decision that allowed for these tax increases without a vote of the people.”

“The Colorado Supreme Court got this one wrong. This is why I offered amendments to the bills seeking to put these higher taxes to a vote of the people. Allowing the citizens of Colorado to have their constitutionally guaranteed chance to weigh in on job-killing tax hikes is the least that we should do.”

Even smaller newspapers around the state such as the Summit Daily News are weighing in on the issue (”Smaller government = more power to the people“):

Closer to home, within the state, we need to do all we can as citizens of Colorado to nip a growing misuse of power within our Supreme Court. We have the constitutional right to vote on whether we want to be taxed, in any event, for any reason. Some lawmakers in our government are presently busily taking away our right to vote on taxing. There are four unjust judges who will want to be confirmed in November who should be thrown out by a simple NO vote next to their names on the ballot. They have been increasing taxes and creating other unconstitutional atrocities against the will of the people for too long. In November say NO to The Mullarkey Bunch - Michael Bender, Alex Martinez, Nancy Rice and Chief Justice Mary Mullarkey. There will be plenty of reminders as their unconstitutional tax increases start hitting you in the wallet. Visit the [Clear The Bench Colorado] website for the full scoop on the sweets tax and the other dirty dozen agenda-driven invasions of our rights as voters, especially when it comes to taxes. Ritter’s (he must go too) vehicle registration fees are really unconstitutional tax increases that we would not have voted for if we had been given our rights as citizens to vote on tax increases. This kind of misuse of power must be stopped and we have the power to say NO.

Thanks in part to the increased (and growing) coverage - acknowledging that there actually ARE scheduled statewide elections to allow voters to retain (or NOT retain) our Colorado Supreme Court justices in office, more and more people throughout Colorado are becoming aware that “we have the power to say NO” - and learning of the ample cause for exercising that power (indeed, that right).

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 Legislature received public testimony yesterday (continuing into today) - overwhelmingly in opposition - to the “Dirty Dozen” stealth tax hike bills exploiting a recent Colorado Supreme Court ruling to avoid the TABOR requirement that tax increases receive prior approval by a vote of the people.

It was readily apparent from the tone of the committee majority’s remarks to, and treatment of, ordinary citizens who came to register their opposition that the representatives were not interested in listening to their constituents but appeared set on rushing through testimony and proceeding rapidly to a vote.

The answer to the question “Will Colorado Dems Ram Through Dirty Dozen Business Tax Hike Bills?” is clearly ”Yes.”

Clear The Bench Colorado Director Matt Arnold signed up to testify against 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.

Unfortunately, due to a previously scheduled engagement, I had to leave before being called to testify on any of the bills up for discussion Wednesday - and couldn’t get word on how long the hearings continued, well into the night (and early morning) and so didn’t make the long drive back to the Capitol.  However, hearings are set to resume Friday, and I’ll again make the trip to speak out in opposition to these unconstitutional tax increases - please join me if possible.

Meanwhile, some excerpts from the testimony delivered Wednesday before departing are illuminating:

An objection to the “public peace, health, & safety” tag on the “Dirty Dozen” stealth tax increases (how does a tax increase on direct mail impact public health, peace, & safety?) was justified (?) by Rep. Pommer with the simple declaration that ”we need the money - it’s a last-ditch attempt to increase revenues to address our budget shortfall.”

Responding to another amendment offered, attempting to refert the tax increases to a vote of the people (as required under the Colorado Constitution, Taxpayer’s Bill of Rights) the committee responded by denying the constitutional restrictions, declaring ”We need the money now!“

Representative Pommer (?) speaking in favor of imposing new stealth tax increase on Online Sales for out-of-state retailers: “Since we have no way of knowing how much people are buying, if the online retailer isn’t collecting the tax, we’ll require them to provide us information on individuals making online purchases - what & how much they buy.”  Um - Wow!  No privacy issues there!

The bottom line:  these stealth tax increases will not only damage businesses and harm consumers, but also violate the constitutional rights of Colorado citizens to first have a vote on taxes… By all means, oppose the legislature in taking these actions, but also remember how they were aided and abetted by an out-of-control Colorado Supreme Court ripping open a loophole in the Colorado Constitution and the Taxpayer’s Bill of Rights.

Exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority on this year’s ballot (Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey). They 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 this November!

Just when it appeared that the attempts to spin the recent statement by Attorney General John Suthers that he would vote “NO” on retaining 3 of the 4 Colorado Supreme Court justices on the ballot this year (Justices Michael Bender, Alex Martinez, and Chief Justice Mary Mullarkey) had finally run their course, yet another left-wing blog (titled, appropriately, Left Turn) attacked Suthers for having the temerity to speak his mind about our activist state Supreme Court.  The blog asserted:

Suthers’ statement aligns him with the conservative action group Clear the Bench Colorado, an organization dedicating ousting the four justices up for re-election in November. Its website describes our Supreme Court as “the most partisan in the nation” and the TABOR amendment is the second resource listed on its references page.

Although it is certainly true that “[w]hen the highest-ranking law enforcement official in the state says he thinks the highest justices in our state are not worthy of continuing in office, that’s big news,”  and we appreciate that greater attention is now being paid to the very important and serious issue of the Colorado Supreme Court judicial retention elections in November 2010, Clear The Bench Colorado did not take the AG’s statement as an endorsement (although he is certainly free to do so).

It is also telling that the blog’s listing of TABOR as “the second resource listed on its references page” is somehow meant to be a damning indictment of Clear The Bench Colorado - since TABOR is, after all, part of the Colorado Constitution that our state Supreme Court justices are sworn to uphold (which, by the way, is the FIRST reference listed).

Our response to the article (which has not yet been published on their site) follows:

The statement by Attorney General Suthers - criticizing 3 of the 4 sitting Colorado Supreme Court justices facing retention on principled grounds - brought increased attention to an extremely important issue. For too long, the statewide retention elections on our state Supreme Court justices have been a mere rubber-stamp, instead of providing the opportunity for Colorado citizens to “judge the judges” based on their adherence to the Colorado Constitution, which they are sworn to uphold.

The Colorado Constitution, by the way, is the FIRST reference listed on the Clear The Bench Colorado Resources & References page - the TABOR amendment to the Colorado Constitution is listed second. Although it is unfortunate that the Attorney General has apparently bowed to political pressure, he has been on record numerous times criticizing the decisions of the current Colorado Supreme Court majority on constitutional grounds - his recent statement that he would draw the obvious conclusion and vote against retention of anti-constitutional justices should NOT come as a great surprise.

Indeed, what IS surprising (and disappointing) is that more attorneys have not exercised their “societal duty to criticize the courts” where they are wrong - which is why it apparently takes a non-lawyer (and Soldier) to lead the fight for YOUR constitutional rights. Learn more about YOUR right to vote on these ‘unjust justices’ - and why your vote should be “NO” on retention this November - at the Clear The Bench Colorado website.

Exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority on this year’s ballot (Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey). They 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 this November!

The widely circulated alternative weekly Westword weighed in Friday with an article about the grassroots movement to hold the Colorado judiciary (particularly, the Colorado Supreme Court) accountable - and bring back balance to the bench - spearheaded by Clear The Bench Colorado.

Aside from not actually having used the word “bums” to describe the current majority on the court, the Westword article upheld the weekly’s high standard for investigative journalism and produced a very balanced and insightful look at the very important issue of the upcoming statewide retention elections for four of the current occupants of Colorado’s highest court (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey are all scheduled to be on the ballot this November).

Clear The Bench Colorado has been accused of being just another partisan shill or “judiciary haters” - by implication in the original Denver Post article on Tuesday (corrected in Friday’s edition), and outright in subsequent online attack pieces - but, as the Westword article points out,

“But Clear the Bench isn’t about Republican versus Democrat or even right versus left. It’s about holding our highest court accountable to their oath to uphold the Colorado constitution.”

Aside from a few minor semantic nitnoids (”military veteran” instead of “ex-military”, “recession” instead of “depression”), the Westword article presents an accurate picture of the purposes and motivations of Clear The Bench Colorado:

“I think our rules and our institutions are good ones, and I’m not advocating for direct election of judges,” Arnold stresses. “I think the intent behind our current system is to try to take some of the politics out of the judiciary branch, and that’s good. But it’s clearly failed to work, because we weren’t able to take the politics out. What we have is a bevy of justices on Colorado’s highest court who are substituting their personal agendas for the rule of law, and that damages all of us, irrespective to our political persuasion — and that has to stop.”

Regarding Suthers, Arnold was at the meeting where the attorney general made negative remarks about Mullarkey, Bender and Martinez, and he praises him for taking a stand.

“It’s a bold statement for the highest ranking law enforcement officer in the state to make,” he says. “And the fact that we’re talking about it shows it’s brought attention to the issue. People need to look at this seriously and do some research. This is an education campaign, because so few people are provided with any useful information on the judiciary.

“The judiciary has an inordinate amount of control over people’s lives — this court particularly,” he continues. “They’re grabbing as much power as they can. But this really is a nonpartisan issue. It’s about holding the judges accountable for their proper role as referees, not players.”

Take back control of your own life - 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 this November!