Colorado Supreme Court Justice Alex Martinez unexpectedly announced earlier today (Wednesday, August 24th 2011) that he intends to resign his seat on the state’s highest court in order to take a job with the City of Denver as Manager of Safety.

Justice Martinez, who was retained in office November 2010 with the lowest percentage of “retain” votes for an incumbent state supreme court justice in Colorado history (59%, narrowly edging current Chief Justice Michael Bender’s 60% and Justice Nancy Rice’s 62% for “worst ever;” incumbent supreme court justices are typically retained with 75-80% of the vote) could have continued to hold office for another decade.

Clear The Bench Colorado considers it a win for Colorado - and the damaged reputation of the Colorado judiciary - that he will not.

At the risk of once again being called “the skunk at the garden party” by the Denver Post, we point out the “troubling legacy” of Justice Martinez’s tenure on the bench (much as the “troubling legacy” of resigning Chief Justice Mary Mullarkey was reviewed at the time of her resignation - by the Post).

Justice Martinez was in fact one of the most reliable members of the highly political “Mullarkey Majority”, joining in or writing all of the key decisions over the past decade that made a mockery of constitutional jurisprudence in Colorado:

• Joining in the 2003 Salazar v. Davidson majority, Martinez helped perpetrate a judicial power grab as the courts conducted Congressional redistricting despite clear constitutional language reserving that power to the ’General Assembly’ and defining the General Assembly as “consisting of a senate and house of representatives.”
• Justice Martinez authored the blatantly political decision to keep a citizen’s initiative to restrict taxpayer funding of services to illegals (Initiative 55) off the 2006 ballot based on an “elastic definition” of the single-subject rule.  Even the Denver Post (which vehemently opposed the initiative) decried the ruling.  Former Democrat Governor Dick Lamm panned the court as “Politicians in Black Robes“, saying “This is not justice; it is politics - of the worst kind.”
• Justice Martinez joined Justice Michael Bender’s politically-derived opinion allowing unions to skirt Colorado campaign finance laws in the 2008 CEA v. Rutt case, overturning the Colorado Court of Appeals which had held (correctly) that unions made illegal contributions when they coordinated their activities with a candidate’s campaign.
• Justice Martinez joined in Colorado’s version of the infamous Kelo eminent domain abuse case, the 2008 “Telluride Land Grab” (Telluride v. San Miguel), authorizing government taking of private property via eminent domain - despite contrary statutory language and despite the fact that the property taken was outside the jurisdiction of the seizing authority.
• Justice Martinez joined the majority in the Nov. 2008 Barber v. Ritter decision which declared that “fees are not taxes” as long as they are called “fees” - laying the groundwork for the notorious and regressive Colorado Car Tax (”FASTER”) tax (er, “fee”) increase.
• Justice Martinez joined the Mullarkey Majority on the infamous March 2009 “Mill Levy Tax Freeze” (Mesa County v. Colorado) ruling which deprived Coloradans of their constitutional right to vote on tax increases, and also eliminated constitutional protections for existing tax credits and exemptions (leading to the “Dirty Dozen” tax increases passed by the legislature the following year).
• In a case with significant and still unfolding implications for Colorado (Governor Hickenlooper recently described the potential consequences as “devastating”), Justice Martinez joined in overturning two lower courts holding (again, correctly) that educational funding policy was not a matter for the courts to decide in the 2009 Lobato v. Colorado case.
• Just days before the Nov. 2010 election, Justice Martinez joined “in one of those quirky rulings for which it is now notorious, reversed the conviction of a man who used another person’s Social Security number to obtain an auto loan.“
• After the election, it didn’t get any better, as Justice Martinez joined in creating a windfall for personal injury trial lawyers (the “ambulance-chaser” set) in the late-November (28th) 2010 Volunteers of America v. Gardenswartz case.  (That ruling was apparently the straw breaking the camel’s back for a national association evaluating state courts, which added Colorado to the list of jurisdictions nationally qualifying as a “judicial hellhole”).

Justice Martinez’s legacy on the Colorado Supreme Court is indeed “troubling” - as noted in the Evaluations of Judicial Performance published prior to the November 2010 election.

While we bear Justice Martinez no personal animosity (by all accounts, he’s a nice guy) and wish him the best in his future endeavors as Denver Manager of Safety, we greet his departure from the Colorado Supreme Court with favor and look forward with guarded optimism to welcoming a new Colorado Supreme Court justice dedicated to upholding the Colorado Constitution and restoring the rule of law.

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.

Predictably (indeed, Clear The Bench Colorado predicted both motion and grounds almost three months ago), Governor Hickenlooper and Attorney General John Suthers filed a Motion to Dismiss the anti-TABOR lawsuit (”Fenster’s Folly“) this week, noting that the lawsuit raises a ”political question” rather than a legal issue and is therefore (as the U. S. Supreme Court has previously ruled, several times) “non-justiciable” (meaning, a policy issue not to be decided by the courts).

The state’s Motion to Dismiss Plaintiffs’ Substitute Complaint echoes the same points and references raised in Clear The Bench Colorado’s review of the lawsuit when it was filed back in May of this year (”TABOR, citizen initiatives targeted by frivolous Fenster lawsuit“):

I. All the claims asserted by Plaintiffs present political questions that the U.S. Supreme Court has long held to be nonjusticiable. The Plaintiffs ask this Court to do something the Supreme Court has consistently refused to do: overthrow a state law for being too democratic.  Not only has the Court never done such a thing, it has repeatedly held that claims of this sort may not be entertained by federal courts. [Motion to Dismiss, p.5-6]

The Motion proceeds to highlight the danger of judicial activism that would inevitably result:

Beyond the “lack of judicially discoverable and manageable standards,” the claims presented here would entangle the Court in policy determinations it must avoid. [Motion at 8]

Noting further the hypocrisy of the plaintiffs’ argument that “ some direct democracy should be upheld, so long as it results in their preferred policy” [Motion at p.8] the state concludes

It would be difficult to imagine a more glaring example of “a policy determination of a kind clearly for non-judicial discretion.”  Baker, 369 U.S. at 216.

Noting the “narrow and limited authority” of judges, the Motion cites an earlier Federal court ruling:

Our entire System of Government would suffer incalculable mischief should judges attempt to interpose the judicial will above that of the [coordinate branches], even were we so bold as to assume that we can make better decisions.”) [ Pauling v. McNamara, 331 F.2d 796, 799 (D.C. Cir. 1963)]

Now where have we heard that before?

In fact, as the Motion further elucidates,

B. The Supreme Court has specifically held that claims like Plaintiffs’, based on citizen initiative power to tax, are nonjusticiable political questions [Motion at 11]

In a deliciously ironic twist, the Motion even cites the Colorado Supreme Court’s arrogation of legislative authority to the judicial branch in the Salazar v. Davidson redistricting case:

In Salazar, the court extended this rationale to include the courts.  79 P.3d at 1232-33, 1236-37.  Neither of these decisions has been disturbed.  See Colorado General Assembly v. Salazar, 541 U.S. 1093 (2004); Lance v Coffman, 549 U.S. 437 (2007) (refusing to address challenges to Salazar).  So even if Plaintiffs were correct that only a state’s “legislature” can enact laws, these cases require inclusion of the people (not to mention the judiciary) within that concept.

The remainder of the Motion addresses issues of Standing (in brief, the Plaintiffs don’t have any) to bring the case - which, while important, will most likely induce acute MEGO (”My Eyes Glaze Over”) in the typical (lay) reader and will not be recounted here.

Clear The Bench Colorado’s sole critique of the state’s Motion to Dismiss is that the state did not seek attorney’s fees from the plaintiffs under C.R.S. 13-17-101 (to offset costs to taxpayers) for filing what is clearly a ”frivolous, groundless, and vexatious” lawsuit.

Although an award of attorneys’ fees is rare (Clear The Bench Colorado won just such an award against “Colorado Ethics Watch” - CEW, pronounced “sue”, it’s what they do - one of only a few in the last decade) it can be done (although actually collecting on the judgement may take months, or years), when opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.

Such abuse of the courts for political posturing can and should be discouraged…

Additional references:
A more detailed (and highly informative) discussion of the constitutionality of the citizen initiative and referendum processes may be found in the Texas Law Review article, “A Republic, Not a Democracy?  Initiative, Referendum, and the Constitution’s Guarantee Clause” by Professor Robert G. Natelson.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone -  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

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 not content with killing TABOR (Colorado’s Taxpayer Bill of Rights constitutional amendment) by the thousand cuts (well, 15 and counting) of Colorado Supreme Court “interpretations” of TABOR’s viability in individual cases (most notoriously, the 2009 “Mill Levy Tax Freeze” property tax increase and the 2008 “fees don’t count as taxes” case leading to the Colorado Car Tax), TABOR’s foes have decided to swing for the bleachers by targeting the amendment’s passage via the citizen initiative process - which the lawsuit claims is an unconstitutional practice.

The lawsuit was filed in Federal court on Monday by a group predominantly composed of current and former elected officials (including both Democrats and Republicans, although all current Republican legislators and the party organization vigorously oppose the lawsuit, in defense of the Colorado Constitution and the right of citizen initiative).  The lead attorney and “mastermind” behind the lawsuit is “superlawyer” Herbert L. Fenster - who has been shopping around the idea for over a year before finding enough plaintiffs and other attorneys (including former Democrat Congressman David Skaggs and former Democrat state senator Mike Feeley) to sign to the case.  Fenster and Skaggs both work at the firm McKenna, Long & Aldridge LLP, while Feeley works at the politically connected Brownstein Hyatt Farber Schreck law firm (a powerhouse Democrat political brokerage).

However, for a “superlawyer,” Fenster’s lawsuit is based on the most tenuous of legal grounds…

Legal precedent - including two relevant Supreme Court of the United States (SCOTUS) decisions - is clear; Fenster’s lawsuit is frivolous, the “Republican form of government” language in the Constitution’s “Guarantee Clause” (United States Constitution, Article IV, Section 4 - “The United States shall guarantee to every State in this Union a Republican Form of Government“) has been repeatedly ruled non-justiciable (meaning, not subject to determination by the courts), and constitutional constraints on government are, by definition, constitutionally allowed…

The two relevant SCOTUS cases on the “Guarantee Clause” have unambiguously held the “Republican form of government” language to be non-justiciable:

In Luther v. Borden, 48 U.S. 1 (1849), the Supreme Court rejected an attempt to put the “republican character” of state government subject to judicial review, holding that “it rests with Congress to decide what government is the established one in a State … as well as its republican character.”  The court, properly exercising judicial restraint, held the “Guarantee Clause” to be a political question, not a judicial one - and therefore not subject to review by the courts (i.e. non-justiciable).

A more recent case, Pacific States Telephone and Telegraph Company v. Oregon, 223 U.S. 118 (1912) dealt specifically with a challenge to the use of citizen initiatives in states (such as Colorado’s TABOR Amendment). In that case, the Court also held that challenges to a state’s “republican character” are non-justiciable political questions:

The enforcement of the provision in § 4 of Art. IV of the Constitution that the United States shall guarantee to every State a republican form of government is of a political character, and exclusively committed to Congress, and as such is beyond the jurisdiction of the courts.

It doesn’t get more clearly stated than that.

Since even a casual review of the legal literature by a non-attorney can turn up the clear and definitive legal precedent that leaves the lawsuit devoid of justification and any prospect for success in court, Fenster’s Folly clearly meets the definition of a “frivolous, groundless, and vexatious” lawsuit.  The Colorado Attorney General (along with any parties joining in the defense) should pursue recovery of costs (taxpayer dollars) spent in defending the suit against all attorneys and plaintiffs involved.

Although an award of attorneys’ fees is rare (Clear The Bench Colorado won just such an award against “Colorado Ethics Watch” - CEW, pronounced “sue”, it’s what they do - one of only a few in the last decade) it can be done (although actually collecting on the judgement may take months, or years), when opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.

Such abuse of the courts for political posturing can and should be discouraged…

Given the unambiguous and overwhelming constitutional precedent against the case, Fenster’s Folly must be viewed for what it clearly is: a massive PR stunt that’s merely the opening salvo in part of a concerted attack on Colorado’s Constitution and the citizen initiative process in Colorado.

Ironically, part of that attack is likely to come in the form of legislatively referred ballot measures and/or “citizen” initiatives (such as state senator Rollie Heath’s “for the children” tax hike proposal) along with additional court cases to nibble away at TABOR (the Colorado Supreme Court is a perfect 0-for-15 in upholding Article X Section 20 of the Colorado Constitution - almost as perfect losers as the 0-for-16 2008 Detroit Lions; another reason Colorado has been called a “Judicial Hellhole“).

Additional references:
A more detailed (and highly informative) discussion of the constitutionality of the citizen initiative and referendum processes may be found in the Texas Law Review article, “A Republic, Not a Democracy?  Initiative, Referendum, and the Constitution’s Guarantee Clause” by Professor Robert G. Natelson.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone -  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

“No man’s life, liberty, or property is safe while the legislature is in session.” - Mark Twain (1866)

Although the 2011 legislative session is now (happily) concluded and part of the history of Colorado Politics, the effects of the bills passed this session and last will continue to be felt for some time…

Case in point: the majority of the “Dirty Dozen” tax increase bills passed during the 2010 legislative session (which exploited a Colorado Supreme Court ruling to take more of your money without asking, as is required under the Colorado Constitution) remain in effect.  Although the new legislative majorities were able to repeal two of the “Dirty Dozen” tax increases this year - last month, the legislature made progress towards “Cleaning up the ‘Dirty Dozen’ tax increases” with repeal of last year’s Agriculture tax increase, HB10-1195, Suspend Ag Sales & Use Tax Exemption (Ferrandino/Heath), and downloaded software tax increase, (HB 10-1192, Sales and Use Tax of Standardized Software (Pommer/Heath) - the remaining (unconstitutional) tax increase laws passed in 2010 (such as the “Candy Tax” and - my dog’s least favorite - the “Doggy Bag Tax”) remain on the books.

The “Dirty Dozen” was the name given to a package of twelve legislative bills which sought to increase tax revenues by eliminating existing tax credits or exemptions - an end-run around the constitutional requirement (in Article X, Section 20 - colloquially known as the Taxpayer’s Bill of Rights, or TABOR) for “voter approval in advance for… any new tax, tax rate increase, or… tax policy change directly causing a net tax revenue gain to any district.”

Even going into the last days of the 2011 legislative session, it appeared that what may have been the least popular of last year’s “Dirty Dozen” tax increases, the ‘Amazon Tax’ (HB 10-1193, Sales Tax Out of State Retailers (Pommer/Heath), was also likely to be another one to bite the dust.  Since the so-called ‘Amazon Tax’ was not only in violation of the Colorado Constitution, but also infringed upon the U.S. Constitution’s 4th Amendment protections against ‘unreasonable searches and seizures’, it had been challenged (in Federal Court - in order to avoid the judicial hellhole of Colorado jurisprudence) and prevented from enforcement by court injunction, anyway.  Given that the tax isn’t being collected anyway, and continuing to defend the tax in court keeps racking up taxpayer dollars in legal expenses, repealing the bill would seem to be a no-brainer.

That proved to be true in the House, where a bill introduced to repeal and replace the tax (HB 11-1318, Notification of Use Taxes, Stephens/Schaffer) appeared to be on the fast track to passage; the ‘Amazon Tax’ repeal bill was swiftly and overwhelmingly approved (on a 58-6 bipartisan vote) in the House, but was prevented from coming to a vote (killing it via a procedural move without having to take a recorded position) by Senate President Brandon Shaffer (D-Longmont).

Sometimes, it would appear, legislative action is not sufficient to succeed in undoing previous acts of the same legislature putting one’s life, liberty, or property at risk…

NONE of the “Dirty Dozen” tax bills would have seen the light of day if not for last year’s legislature’s exploitation of a Colorado Supreme Court ruling to bypass the Colorado Constitution’s requirement to receive “voter approval in advance for… any new tax, tax rate increase, or… tax policy change directly causing a net tax revenue gain to any district.”

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.

“No man’s life, liberty, or property is safe while the legislature is in session.” - Mark Twain (1866)

Occasionally, however, the legislature can succeed in undoing previous acts putting one’s life, liberty, or property at risk…

State legislators made some progress this week towards repealing another one of last year’s “Dirty Dozen” tax increases (which exploited a Colorado Supreme Court ruling to take more of your money without asking, as is required under the Colorado Constitution).  Last month, the legislature made progress towards “Cleaning up the ‘Dirty Dozen’ tax increases” with repeal of last year’s Ag tax increase, HB10-1195, Suspend Ag Sales & Use Tax Exemption (Ferrandino/Heath), and downloaded software tax increase, (HB 10-1192, Sales and Use Tax of Standardized Software (Pommer/Heath)).

The “Dirty Dozen” was the name given to a package of twelve legislative bills which sought to increase tax revenues by eliminating existing tax credits or exemptions - an end-run around the constitutional requirement (in Article X, Section 20 - colloquially known as the Taxpayer’s Bill of Rights, or TABOR) for “voter approval in advance for… any new tax, tax rate increase, or… tax policy change directly causing a net tax revenue gain to any district.”

Last year’s legislative majorities (Democrats dominated both chambers of the state General Assembly) were emboldened in their assault on the constitutional rights (and wallets) of Colorado citizens by an interpretation of the Colorado Supreme Court’s ruling in the notorious “Mill Levy Tax Freeze” case (another unconstitutional tax increase, sanctioned by the court under the pretense that a rate “freeze” which collects more revenue doesn’t count as a tax increase for triggering that pesky constitutional requirement to receive “voter approval in advance”).  Solid legislative majorities, a compliant governor, and a complicit supreme court allowed them to take a bigger bite of your money without first (or ever) asking for permission.

Since the 2010 elections resulted in a shift of control of one legislative chamber (the state House of Representatives) and many members of the new majority campaigned on a promise to seek the repeal of these unconstitutional tax increases, progress towards the elimination of any one of these unconstitutional (and economy-killing) tax increases is welcome news.

The bill to repeal the ‘Amazon Tax’ (HB 11-1318, Notification of Use Taxes) co-sponsored by Reps. Amy Stephens (R-Monument) and  Sue Schaffer (D-Wheat Ridge) repeals last year’s HB 10-1193, Sales Tax Out of State Retailers (Pommer/Heath), particularly the onerous, intrusive, and unconstitutional requirement for out-of-state retailers to divulge customer information to the state, while maintaining a requirement for out-of-state retailers to notify Colorado customers of their ‘obligation’ to pay state use taxes.

While enforcement of this requirement may prove difficult from a practical standpoint (the authority of the Colorado legislature to regulate businesses from out of state may rest on rather tenuous legal grounds), it does at least remove the requirement that retailers rat your out - which gave rise to the predicted (inevitable, really) court challenge to the law.

The ‘Amazon Tax’ repeal bill was swiftly and overwhelmingly approved in the House (on a 58-6 bipartisan vote) and is scheduled to be voted on in the Senate this week, where it is likely to pass (albeit less overwhelmingly) since the ‘Amazon Tax’ law has been blocked in Federal court since January.

NONE of the “Dirty Dozen” tax bills would have seen the light of day if not for last year’s legislature’s exploitation of a Colorado Supreme Court ruling to bypass the Colorado Constitution’s requirement to receive “voter approval in advance for… any new tax, tax rate increase, or… tax policy change directly causing a net tax revenue gain to any district.”

Still, it’s good to see “another one bite the dust.”

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.

A rash of recent thefts may have been inspired by a Colorado Supreme Court ruling…

The Colorado Supreme Court’s ‘Gang of Four’ under their ringleader Chief Justice Mary Mullarkey (who’s skipping town rather than face justice in November) have gotten away with a series of crimes against our Constitution over the last few years, including:

• ‘Mill Levy Tax Freeze‘ property tax increase (”Freeze!” Property tax, reach for the sky!)
• ‘Dirty Dozen‘ tax increases (2010) and the 2009 tobacco tax increase (”Hand over your Tax Credits & Exemptions“)
• ‘Colorado Car Tax’ (It ain’t a mugging - er, tax; it’s a “fee”)
• ‘Telluride Land Grab’ (What’s yours isn’t yours if WE say so)
• ‘Mary-Mandering’ legislative districts (grabbing redistricting power from the legislature, where it belongs)

The crime spree isn’t over yet; the ‘Gang of Four’ is targeting yet more tax increases and has gun rights in their sights, too.

The Colorado Supreme Court’s rampant lawlessness has apparently inspired other, more petty crimes. Recently, your uncaped crusader for justice was the victim of such a crime: my license plate was stolen (right off my car!)

How is this petty crime linked to the Colorado Supreme Court, you ask?

As I discovered this morning when at the DMV to obtain replacement plates, such thefts are far from rare; indeed, there has apparently been a rash of such thefts, since the Colorado Car Tax (er, vehicle registration “fee” increase - brought to you courtesy of the Colorado Supreme Court) went into effect a year ago.  Most of the thefts seem to be inspired by the desire to avoid the punitive “late fees” - an over $31.5 Million ‘Highway Robbery’ aided and abetted by the Colorado Supreme Court.

Unintended consequences?

Criminologists (and parents) know that if bad behavior goes unpunished, it will only get worse.

Colorado has seen an intensifying pattern of bad behavior by our state supreme court over the last ten years of the Mullarkey Majority’s reign.  Colorado Citizens have the right - indeed, we have the duty - to hold those behaving badly accountable, at the ballot box.

Don’t let them get away with continued bad behavior - exercise your right to vote “NO” this November on the four (er, now 3) ‘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 (er, “fee”) increases, your right to defend your home and business from being taken away through abuse of eminent domain, 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!), your contributions, and your “NO“ vote against retaining these incumbent unjust justices in office for another 10 years!

Clear The Bench Colorado has alerted Colorado citizens over the last several months to the Colorado General Assembly’s underhanded tactic (Colorado Politics at its worst) of circumventing the TABOR requirement to receive voter approval before imposing or increasing taxes by playing the word game of calling the charges “fees” instead, thanks to a ruling by the Colorado Supreme Court in November 2008.

The most universally despised use of this tactic - and the one affecting the greatest number of Colorado citizens - was 2009’s Colorado Car Tax (er, registration “fee”) increase with the “FASTER” bill (SB 108).

The most universally hated - and unjust - part of the so-called FASTER bill (SB 108) is the massive (and now mandatory) imposition of “late fees”.  How massive?  The Denver Post reports today that Colorado drivers

paid nearly $31.5 million in penalties the first year mandatory late fees were in effect.

Last summer - the first year that the new taxes (er, “fees”) were in effect, driver outrage boiled over to such an extent that many county clerks found it necessary to hire additional security (despite the fact that the increases were not their fault).  Some country clerks even took the unusual step of providing pre-addressed postcards (printed on recycled paper at little or no cost) to allow angry drivers to vent their anger at state officials (who passed the tax - er, “fee”) instead (for which they were roundly, and hypocritically, criticized by the Denver Post editorial board - which had no criticism for the thousands of taxpayer dollars wasted on propaganda in favor of the increases).

Many of the county clerks - who had previously had the discretion to impose late fees, which were usually minimal ($10, vs. $25-$100 thanks to “FASTER”) and frequently waived with proper justification, are not fans of the new “fees” despite increased revenue for their districts.  Today’s Denver Post article quotes one:

Weld was one of the counties that hadn’t charged a late fee. Clerk and Recorder Steve Moreno said Friday he was amazed to learn his office collected more than $2 million in late fees the first year.

Of that, $396,160 went to Weld County and the rest to the state. Despite the extra money, Moreno still believes the fees should have stayed at $10 to be imposed at the clerk’s discretion.

“It feels like an extra tax,” he said.

Feels like an extra tax? That’s putting it mildly…

My own county clerk - Arapahoe County Clerk Nancy Doty - also criticized the vehicle “fee” increases (particularly the often unjustifiable but now mandatory “late fee”) and the questionable constitutionality of how they were passed in an article (”County Clerks Required to Enforce Legislature’s New Fees“) published almost exactly a year ago:

It adds about $32 a year to the average registration fee to pay for “Road and Bridge Safety Surcharges”-none dare call it a tax. But wait, there’s more! You used to be able to get by with a $10 late fee if you exceeded the 30 day grace period when renewing your registration. Now, it’s $25 a month, month after month, up to a maximum $100. Got an old boat trailer you take out once or twice a year? Or a hauler you run to the dump with once in awhile. You’d better send that registration card in on time, or you may end up paying more than the vehicle’s worth to re-register if you are late.

…And are these new fees really taxes that should have been voted up or down by the taxpayers? [Ed. YES!  Yes, they are...]

“Why this, why right now and why no vote by the taxpayers?”

Good question.  The answer, of course, is that this “highway robbery” was aided and abetted by the Colorado Supreme Court’s “Mullarkey Majority” (Chief Justice Mary Mullarkey, who recently announced that she would retire rather than be held accountable by Colorado voters this November, along with her colleagues justices Michael Bender, Alex Martinez, and Nancy Rice who remain on the November ballot seeking another 10-year term of office).  The Colorado Car Tax (er, “vehicle registration fee”) increase could not have happened without the Colorado Supreme Court setting aside the Constitution to allow “fee” increases to dodge the constitutional requirement to get prior voter approval for tax increases.

Others have also noted the regressive nature of the tax (hurting most those who can least afford it) along with the multi-year increases built in to the law, saying “the pain of FASTER is just beginning.”

Adding insult to injury, much of the revenue collected by these increased “fees” is not even going to roads and bridges (the stated purpose of the legislation).  That’s right - state and county governments are playing the ol’ shell game with your money, diverting it from the intended purpose (”fix roads and bridges” - a worthy goal) and using it as a general-purpose (or other special-interest) slush fund.  For example, the Denver Post article points out that Jefferson County has

set aside the county’s share of more than $600,000 in late fees to be used for capital purchases and other expenses.

The “FASTER” legislation already explicitly provides for several categories of expenditure not related to “roads or bridges” - an unconstitutional diversion of funds collected as “fees” vice taxes - as noted earlier on this site and in other publications:

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.

Don’t get taken for a ride any longer - exercise your right to vote “NO” this November on the four (er, now 3) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority” (Justices Michael Bender, Alex Martinez, Nancy Rice, and soon to be minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax (er, “fee”) increases, your right to defend your home and business from seizure by governments abusing eminent domain, 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!), your contributions, and your “NO“ vote against retaining these unjust justices on the bench for another 10 years!

Constitutional limits on government power - constraints on what the government can do to you - are the hallmark of the American form of government, and an essential bulwark of liberty against tyranny.  Our Constitution is our nation’s “rulebook”, as our state Constitution is the rulebook for state government.

What happens when our governing officials - elected or appointed - refuse to play by the rules?

What happens when the branch of government charged with upholding and applying those rules - our judiciary - decides to abandon their role as impartial “referee” and instead bend the rules to favor their favorite “players?”

We don’t have to speculate - we just have to review our recent history.

The current majority on the Colorado Supreme Court has repeatedly demonstrated a disregard for the clear letter of the Colorado Constitution and a lack of consideration for your constitutional rights.  They have ruled consistently against individual protections and in favor of expanded government power. Upholding tax increases (such as the “Mill Levy Tax Freeze” property tax increase, or the “Dirty Dozen” new tax laws) imposed without the required vote of the people, enabling taxes to be collected under the guise of “fees” (such as the Colorado Car Tax), expanding eminent domain abuse to seize people’s property, and grabbing the (legislative) power to draw up voting districts (aided by the recent “Mary-mandering” bill) - this court is acting like rulers, not referees; re-writing the laws, instead of upholding them.  We are effectively living without a Constitution in Colorado, experiencing rule by judges instead of the rule of law.

The following article was written for (and appears in) the August edition of Liberty Ink magazine.

Living without a Constitution in Colorado

What would it be like to live without a Constitution? Absent written rules restricting their power, authority and scope of action, could government officials do pretty much whatever they pleased?

Unfortunately, that describes the situation in Colorado over the past few years - under the rule of the unjust justices of the Mullarkey Majority on the Colorado Supreme Court.

This court - especially the justices up for a vote this year - has been hostile to your constitutional rights, particularly your voice under the Taxpayer Bill of Rights (TABOR) in how much money the government takes from you in taxes and other “fees.” They’ve also been hostile to your property rights and have been grabbing more and more power that properly belongs to the other branches of government - or to the people.

That’s why the most important votes Coloradoans will cast this year aren’t for the state legislature or even governor or Congress. The most important votes Coloradoans can (and must) cast are “NO” votes on the Colorado Supreme Court justices asking for retention in office: Michael Bender, Alex Martinez, Nancy Rice and - until she recently announced her decision to quit rather than face the voters - Chief Justice Mary Mullarkey.

Thanks to rulings by the activist, anti-constitutional Mullarkey Majority on Colorado’s Supreme Court, our property taxes have increased, and we’ve been burdened by an explosion of other taxes and “fees” (such as the Colorado Car Tax or vehicle registration “fee” increases) - all without the constitutionally required vote of the people, as set forth in the Colorado Constitution.

This year, state legislators also exploited the “Mill Levy Tax Freeze” ruling to increase your tax burden by playing word games with your constitutional rights-insisting that eliminating a tax credit or exemption (the “Dirty Dozen” tax increase bills) does not “change tax policy” and therefore does not require your approval by a vote (despite the clear language of the Colorado Constitution to the contrary).

Our homes and businesses are also less safe from seizure by abuses of eminent domain powers, and the courts are grabbing more power from our elected legislators and local governments accountable to the citizens (arrogantly claiming powers to draw up Congressional districts, even deciding how much funding is “appropriate” for schools-overriding the “checks and balances” that keep judges from raising taxes).

This Supreme Court recognizes no limits on its power. This majority has arrogated to itself the ultimate power to decide all legal or policy questions in the state. For them, their word is law - according to them, the Constitution is what they say it is.

They are wrong. 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 reign over the rights of citizens.

Our system relies on the certainty that the law means what it says - that legal precedent and established rights cannot be overturned on a whim or “interpreted” out of existence. Our Constitution is like our rulebook for government, restricting what they can, and can’t, do to us. Our courts - especially our highest courts - are supposed to be the defenders and guardians of our rulebook, and our rights. To use a sports analogy, judges should be referees, not players - applying the law as written equally and fairly to all, not making up new rules as they go along.

However, the Constitution alone is powerless - mere words on paper - to defend our rights and limit government powers without the vigilance and action of CITIZENS - We the People. 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.” (U.S. 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.

Around the country, citizens are displaying a renewed interest in the American founding, and in the foundational documents (the Declaration of Independence and the U.S. Constitution) that established our system of government and laid the framework for unmatched freedom, prosperity and progress. It is no accident that constitutional limits on government power have enabled a free people to unleash their drive and creativity, and create the greatest nation in history.

Let’s Clear The Bench, Colorado!

Be a citizen, not a subject - get informed, then 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, and soon-to-be-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.”  Continue to support Clear The Bench Colorado with your comments (Sound Off!) and contributions - and vote “NO” on giving these unjust justices another 10-year term!

Clear The Bench Colorado Director Matt Arnold discusses the impact of Colorado Supreme Court rulings leading to a massive expansion of government power (at the expense of YOUR constitutional rights) and vastly increased taxation (such as the “Mill Levy Tax Freeze” property tax increase, the “Dirty Dozen” tax increases and of course the Colorado Car Tax (er, “vehicle registration fee”) increase, along with the dominant role of the Colorado Supreme Court in determining the boundaries of our legislative districts (at both the State and Federal level - deciding how YOU will be represented in Congress and in the Colorado Legislature) and the issue of judicial retention elections for the Colorado Supreme Court following the recent announcement by Chief Justice Mullarkey that she would retire rather than be held accountable by Colorado voters - in Saguache Friday evening starting at 6:00PM, continuing a tour of southwest Colorado this week (other stops include Buena Vista Tuesday, Gunnison on Wednesday, and Montrose on Thursday, respectively).

The Colorado Supreme Court - and particularly, the Chief Justice - exercises enormous power (”clout”) over the lives of Colorado citizens.  The current majority has repeatedly demonstrated that it does not exercise this power with restraint or consideration for your constitutional rights - ruling consistently against individual protections and in favor of expanded government power.  Upholding tax increases (such as the “Mill Levy Tax Freeze” property tax increase, or the “Dirty Dozen” new tax laws) imposed without the required vote of the people, enabling taxes to be collected under the guise of “fees” (such as the Colorado Car Tax), expanding eminent domain abuse to seize people’s property, and grabbing the (legislative) power to draw up voting districts (aided by the recent “Mary-mandering” bill) - this court is acting like rulers, with you as the subjects; re-writing the laws, instead of upholding them.

Be a citizen, not a subject - get informed, then 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, and soon-to-be-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.”  Continue to support Clear The Bench Colorado with your comments (Sound Off!) and contributions - and vote “NO” on giving these unjust justices another 10-year term!