Continuing coverage of the pair of lawsuits seeking to have the courts decide educational policy in Colorado (the Douglas County school choice case, and the Lobato statewide educational funding case) over the weekend highlights the increasing role of the courts (as opposed to elected school boards, or the state legislature in whom constitutional authority for making education policy & resourcing decisions is vested) in deciding how - and under what conditions -  our children receive an education.

• Lobato v. Colorado school funding lawsuit:

Friday’s Denver Post published a guest commentary (”Lobato case is crucial to education“) that was nothing more than a special-interest plea for more money (that the state does not have) by the same people (a pair of school superintendants) who in one breath admit that “we find ourselves failing” but blame their failure solely on a “lack of resources” (never mind the successful accomplishments of other schools, particularly - but not only - charter and private schools less dependent on state funding).

The guest commentary fails utterly to substantiate a link between educational funding and performance, and fails to make the case for how “Colorado’s school funding system… is constitutionally inadequate” - since the Constitution leaves such questions of policy up to the state legislature, NOT the courts.

This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends - unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).

The authors are correct in one regard:

In terms of the future of public education, Lobato is the most important case ever tried in Colorado.

If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.

• Douglas County school choice lawsuit:

Saturday’s Colorado Springs Gazette editorial (”Backward voucher ruling favors oppression“) was a scathing indictment of Denver District judge Michael Martinez’ ruling to stop the Douglas County school choice program via permanent injunction, calling it “a decision to segregate and oppress.”

The editorial correctly points out a fatal flaw in Judge Martinez’ ruling, which ignored governing constitutional precedent (Zelman v. Simmons-Harris, No. 00-1751, decided 27 June 2002, U.S. Supreme Court) holding that voucher programs did NOT violate the U.S. Constitution’s Establishment Clause:

In Colorado, education money attaches to children. With each child who enrolls, a public school gets more than $6,000 for the year.

Vouchers issue the money to parents. At that point, the money belongs to the parent and child. They are free to spend it at almost any accredited school, religious or otherwise.

The key point - that educational choice belongs to the parent, not to the government (especially, not to the courts) - bears repeating:

Once state money is converted to a voucher and given to a child, it’s no longer the government’s. It belongs to the child, who is subject to the will of a parent or guardian. Parents and guardians have the right to choose whether their children are schooled in secular or religious settings.

The Gazette’s editorial concludes by endorsing an appeal to a higher court: “Let’s hope this ignorant, backward ruling is soon overturned.”

Sunday’s Denver Post editorial (”The latest hurdle for school choice“) chimed in with (surprising!) support for the Douglas County school choice program in principle, but sounded a more cautionary note on the prospects for appellate success:

And while Douglas County officials have said they intend to appeal Denver District Judge Michael A. Martinez’s ruling, the language of his opinion - along with the current makeup of the Colorado Supreme Court - does not leave much room for optimism.

The Post’s editors have a point - they certainly are intimately familiar with the political predilections of the Colorado Supreme Court, as they are the court’s current landlords (a possible factor in the Post’s non-coverage of last year’s judicial retention elections) - but if the DougCo school board first takes their case to the Colorado Court of Appeals, which has largely been a bright spot for actually upholding the law in Colorado - they may have a decent shot at success, and will in any case build up a good record for where the case may ultimately be decided in the U.S. Supreme Court.

Finally, this morning’s (Monday) Parker Chronicle (online) reported on the first step of the appeal process (”Douglas County School District launches appeal process“):

The district announced it filed a stay of the permanent injunction filed against its choice scholarship pilot program, designed to deliver school vouchers to 500 district students. The program was stopped on Aug. 12 with the decision by Denver District Court Judge Michael Martinez, who ruled it unconstitutional in part because it routes public education money to private, religious schools,
In a news release issued Aug. 19, the district calls its motion “the first legal step in a planned appeal” of Martinez’s ruling.

Clearly, the fight for choice - and control - of education in  Colorado’s courts is just beginning.

These cases highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering - let alone deciding - issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important - even vital - role to play in our society and system of government.  This is not it.

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

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

Ultimately, though - it’s worth the effort.

Colorado’s Reapportionent Commission (charged with drawing our state legislative districts) has completed the final set of preliminary legislative district maps for Colorado, revealing the six-county (Adams, Arapahoe, Boulder, Broomfield, Denver, and Jefferson counties) Denver metro area maps (following the previous week’s marathon session combining public testimony for Regions 6 and 7 on a single day).

The commission’s most recent meeting (18 July) discussed the preliminary district maps for state House and Senate districts for Region 6 (Adams, Boulder, Broomfield, and Jefferson counties) and Region 7 (Denver and Arapahoe counties) - public testimony on districts in those regions actually occurred a week earlier, on 11 July).

(Click here to view preliminary map for Region 6 & 7 Senate districts)

(Click here to view preliminary map for Region 6 & 7 House districts)

Interestingly enough, both sets of maps (House and Senate, for Regions 6 & 7) were approved on a nearly party-line vote of 6-5, with unaffiliated commission chair Mario Carrera casting the deciding vote in each instance, once with Republicans (for the House maps) and once with the Democrats (for the Senate maps).

Click here for the full schedule of public hearings on state legislative districts.

Additional information is also available on the Reapportionment Commission website.

Additional references:

Constitutional Provisions Controlling Reapportionment/Redistricting (state government website which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)

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

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

Ultimately, though - it’s worth the effort.

Colorado’s Reapportionent Commission (charged with drawing our state legislative districts) has completed the first round of public testimony on legislative district boundaries (last week’s marathon session covered six metro Denver counties).  Meetings continue this week, however, with new district maps for metro Denver counties set to be introduced in open hearings, beginning at 9:30AM in the Legislative Services Building (Hearing Room A) on 200 East 14th Avenue, Denver CO 80203 (which is located just across the street to the south of the Colorado state Capitol building).  The hearing will also be broadcast over the Internet for those unable to attend in person.  (View meeting agenda here

The commission’s most recent meeting (11 July) discussed the preliminary district maps for state House and Senate districts for Region 5 (Larimer and Weld Counties - public testimony on districts in that region actually occurred two weeks earlier, on 27 June).

(Click here to view preliminary map for Region 5 Senate districts)

(Click here to view preliminary map for Region 5 House districts)

Click here for the full schedule of public hearings on state legislative districts.

Additional information is also available on the Reapportionment Commission website.

Additional references:

Constitutional Provisions Controlling Reapportionment/Redistricting (state government website which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)

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

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

Ultimately, though - it’s worth the effort.

Colorado’s Reapportionment Commission (charged with drawing our state legislative districts) meets in Denver today to hear public testimony on state legislative district boundaries in a final marathon round (covering six metro Denver counties) today (11 July) in Denver.

This week’s meeting will introduce new preliminary maps for Larimer & Weld County districts (public testimony on those districts took place earlier, on 27 June).  The commission is also scheduled to hear public testimony on six metro Denver county (Adams, Boulder, Broomfield, and Jefferson county districts starting at 11AM, and Arapahoe and Denver county  districts starting at 2PM) in the Legislative Services Building (Hearing Room A) on 200 East 14th Avenue, Denver CO 80203 (which is located just across the street to the south of the Colorado state Capitol building).  The hearing will also be broadcast over the Internet for those unable to attend in person.  (View meeting agenda here)

The commission’s most recent meeting (27 June) discussed the preliminary district maps for state House and Senate districts for Region 4 (central Colorado - Custer, Clear Creek, Douglas, El Paso, Fremont, Gilpin, Park, and Teller Counties - public testimony on districts in that region actually occurred a week earlier, on 20 June).

According to the Colorado Springs Gazette’s report on Monday’s meeting,

Democrats won both rounds at the reapportionment commission meeting on Monday, when their maps for the state House and Senate were approved with the help of two of the five Republican commissioners.

Although the count differed by one vote, the ultimate outcome was the same:

The Democrats’ Senate map was approved 8-3, with two Republicans in support, and the Democrats’ House map passed 7-4, with one Republican in support. The commission’s unaffiliated chairman, Mario Carrera, sided with Democrats both times.

(Click here to view preliminary map for Region 4 Senate districts)

(Click here to view preliminary map for Region 4 House districts)

Click here for the full schedule of public hearings on state legislative districts.

Additional information is also available on the Reapportionment Commission website.

Additional references:

• Constitutional Provisions Controlling Reapportionment/Redistricting (state government website which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)

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

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

Ultimately, though - it’s worth the effort.

Colorado’s Reapportionment Commission (charged with drawing our state legislative districts) takes a time out for Independence Day week before resuming the summer schedule of meetings and hearing of public testimony for the final marathon round (covering six metro Denver counties) on 11 July in Denver.

The commission’s most recent meeting (27 June) discussed the preliminary district maps for state House and Senate districts for Region 4 (central Colorado - Custer, Clear Creek, Douglas, El Paso, Fremont, Gilpin, Park, and Teller Counties - public testimony on districts in that region actually occurred a week earlier, on 20 June).

According to the Colorado Springs Gazette’s report on Monday’s meeting,

Democrats won both rounds at the reapportionment commission meeting on Monday, when their maps for the state House and Senate were approved with the help of two of the five Republican commissioners.

Although the count differed by one vote, the ultimate outcome was the same:

The Democrats’ Senate map was approved 8-3, with two Republicans in support, and the Democrats’ House map passed 7-4, with one Republican in support. The commission’s unaffiliated chairman, Mario Carrera, sided with Democrats both times.

(Click here to view preliminary map for Region 4 Senate districts)

(Click here to view preliminary map for Region 4 House districts)

The commission is also heard public testimony on Larimer & Weld County districts; preliminary maps for those districts will be released and voted on at the next meeting of the commission on 11 July 2011, beginning at 9AM (meeting agenda TBA).

Click here for the full schedule of public hearings on state legislative districts.
Additional information is also available on the Reapportionment Commission website.

Additional references:

• Constitutional Provisions Controlling Reapportionment/Redistricting (state government website which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)

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.

Reaction to Governor Ritter’s selection of Deputy Attorney General Monica Marquez to become Colorado’s next supreme court justice (replacing outgoing Chief Justice Mary Mullarkey, who announced in June that she would resign rather than be held accountable by voters this November) and concerns expressed by Clear The Bench Colorado regarding her positions on important constitutional questions ( Marquez advocated in favor of the 2003 judicial takeover of legislative redistricting authority in the Salazar v. Davidson redistricting case, argued that “fees” are not taxes in the Barber v. Ritter case (which led to the 2009 Colorado Car Tax - er, vehicle registration “fee” - increases), has sought to restrict the 1^st Amendment rights of citizens seeking to speak out on ballot issues in recent and ongoing cases, and is also the lead attorney in yet another attempt to impose an unconstitutional tax increase on Colorado Citizens) ranged from the superficial (short spots on most local television: CBS4, KDVR31) to the basic (”Ritter picks Monica Marquez for Colorado Supreme Court“, Denver Post) to the informative (”Monica Marquez Supreme Court selection disappoints Clear the Bench’s Matt Arnold“, Westword) to the predictably shrill and misleading (left-wing propaganda outlet Colorado “not-so” Independent accusing CTBC of a “diatribe” against Marquez and making up non-existent “attacks on her ethnicity or sexual orientation” - the last refuge of scoundrels: playing the race and sex card).

It took the juvenile minds (er, mouths) at Colorado Pols, though, to come completely unhinged in their response.  Going off the deep end and reaching a new low in rabid incoherence, the puerile Pols piece (“Clear the Bench” Blows the Dog Whistle - does that make sense to anyone sentient?) perceived a “code-word reference” in the Clear The Bench Colorado critique of Marquez’ positions on constitutional interpretation and exclusively advocacy-based career path.  (Code words? Can they even perceive how fringe and paranoid that sounds?)  Attempting to sling mud (er, doggie droppings) by insinuating “just beneath the surface, you can see it’s a bit ugly” makes them look like - well, a bunch of sick puppies.

On a more humorous (and uplifting) note - among the many calls I fielded for interviews yesterday was a lengthy and wide-ranging chat with Colorado Springs Gazette house liberal Barry Noreen (at the end of our conversation, I told him that he’s really a closet libertarian in many respects, which got a chuckle).  I’m curious to see what he ends up writing, since we wandered off-topic a bit; I think that he was trying to get a sense of what drives me personally (and motivates Clear The Bench Colorado).  No decoder ring necessary - it’s about upholding and defending constitutional principles and the rule of law.  He did end up taking my bet (offered in response to an earlier, and more adversarial, critique he had mailed, when he asserted “these justices will be retained with ease”).  Our bet: if any of the Colorado Supreme Court justices on the ballot is non-retained, or squeaks by with 60% or less of the total vote, I win; otherwise, he wins.  (The stakes: a six-pack of beer, winner’s choice).

Looking forward to enjoying some beer on Barry, after November 2nd - and it won’t be the cheap stuff.  ;-)

Colorado voters have the chance to make history, stand up in defense of our constitutional rights (and don’t forget, get Barry to buy me beer) this year.  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, and Nancy Rice; soon minus ringleader Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!) and contributions - and exercise your right to vote “NO” on giving these unjust justices another 10-year term!

It’s Valentine’s Day, but the Denver Post is not feeling the love…

Between a weekend social calendar and attending several events (including One Sweet Fundraiser for Clear The Bench Colorado - a great success!  Thanks to all who attended and contributed!) yesterday, I almost missed the publication of the following guest commentary article on judicial performance evaluations in Saturday’s Denver Post.  Curiously, the article was published only in the print edition, departing from the Post’s normal practice of also printing guest commentary articles online.

[UPDATE: the Denver Post, possibly in response to criticism, later did publish the article online]

A suspicious type might think that the Post’s exclusion of this article from the wider dissemination (and availability for internet search engine reference) of online publication fits in with a consistent pattern of suppressing any mention of the upcoming statewide retention elections for Colorado Supreme Court justices, or the dubious constitutionality (if not outright evasions of TABOR) of the recent “Dirty Dozen” tax increase bills (which the Denver Post supports - while supporting continued special-interest tax exemptions for newspapers and newspaper advertising supplements) in their news coverage.  (A real conspiracy-monger might mention that the Post’s journalistic integrity with regard to covering news uncomfortable for the Colorado Supreme Court could be compromised by the fact that the Denver Post is now the Colorado Supreme Court’s landlord - or cozy neighbor - in the same building).

In the spirit of the holiday - won’t you be my Valentine, Denver Post? - we will refrain from such musings, and continue instead to the well-written and informative article that the Denver Post did publish (albeit from a guest commentator) on Valentine’s Day Eve.

GuestCommentary

Evaluating the performance of justices

By William M. Banta

The opportunity for Colorado voters to decide whether a state Supreme Court justice is doing a good job doesn’t come around very often, only about once every 10 years.  This year, four out of the seven justices who sit on the Colorado Supreme Court are up for retention.

Ten years is a long time for any public servant to go without a job review, and the 10-year election cycle is about the only accountability our Supreme Court justices have to the people of Colorado.  The voters’ responsibility ins determining whether or not to retain a justice is all the more important because this event occurs so infrequently.

Under our form of government, the function of the Colorado Supreme Court is to decide cases.  When it comes to the job performance of individual justices, the written decisions of the court provide the key to their performance.

In the last few years, the Supreme Court (including all four members who are up for re-election) has weighed in heavily on important constitutional questions such as taxes, schools, and the proper role for courts (vis-à-vis the legislative or executive branches of government).

The court has published controversial written decisions on these and other issues that impact Colorado citizens.  Because the court’s recent rulings about taxes, schools and judicial authority are not straightforward in their reasoning, what voters are going to want for 2010 is some analysis of the decision-making.

In evaluating Supreme Court cases, the decisions should be reviewed for reasoning and clarity.  The court’s conclusions should also be examined for adherence to the rule of law.  For instance, when the language of the Colorado Constitution reads one way but a justice writes a decision or supports an opinion that interprets the constitution in the opposite way, there’s a legitimate question whether the justice colored outside the lines or adhered to fundamental principles.  And that’s a job-performance issue that voters would want to consider.

In Colorado, there is a state commission on judicial performance that publishes its consensus of each justice’s performance.  For each 10-year retention cycle, the commission is required to evaluate job performance, write up a narrative, and make a recommendation for the voters.  In the past, the commission’s recommendation has always been that the voters should re-elect or retain a justice.

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.

Now would be a good time for the commission to write up substantive performance evaluations for the justices who seek re-election.  It would help the credibility of our judicial merit selection/performance evaluation system.

The Colorado system for appointing, evaluating, and retaining or not retaining Supreme Court justices depends on voters receiving relevant, substantive and vigorous information about individual job performance.  That’s what voters will need for the elections in November.

(William Banta was a State Judicial Performance Commission member in 2005 and 2006 and spent seven years on the 18^th Judicial District Performance Commission before that.)

Clear The Bench Colorado agrees wholeheartedly that voters need “relevant, substantive and vigorous information” - based on “the written decisions of the court” - in order to make an informed decision on whether to retain, or NOT to retain, “the four out of the seven justices who sit on the Colorado Supreme Court” who are scheduled for retention elections this November.   Based on our analysis of the most impactful decisions rendered by these Colorado Supreme Court justices during their tenure - led by the “Mill Levy Tax Freeze” property tax increase case, the “fees are not taxes” case, the “Telluride Land Grab” eminent domain abuse case, the ‘Lobato’ school funding case, and the judicial usurpation of legislative authority in the Congressional redistricting case, among others - the verdict is clear: these justices deserve a resounding “NO” vote in the November elections.

Become an informed voter; 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 homes and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, instead of rule by activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions - and vote “NO” on retaining these unjust justices in the November elections!

As usual, it’s “for the children.”

Boulder lawyer Herb Fenster has declared that he intends to file a lawsuit against the people and state of Colorado to nullify a section of the Colorado Constitution (Article X, Section 20 - colloquially known as TABOR, the Taxpayer’s Bill of Rights) in Federal court “by the end of the month,” under the flimsy pretext that it violates the U.S. Constitution “guarantee that states have a republican form of government.”

“TABOR, he argues, violates Article IV Section 4 of the U.S. Constitution.”

Fenster’s pretextual argument is curious (at best), given the definition of “Republic” or “republican form of government” in common use by legal and constitutional scholars:

republic n 1 : a government having a chief of state who is not a monarch and is usually a president; also : a nation or other political unit having such a government 2 : a government in which supreme power is held by the citizens entitled to vote [Ed.: emphasis added] and is exercised by elected officers and representatives governing according to law; also : a nation or other political unit having such a form of government Source: NMW

In the context of the United States, both definitions apply.

Rumors of Fenster’s plans to sue the state have been circulating since his testimony before the legislature’s Long-term Fiscal Stability Commission last Summer; indeed, he then stated his plans were to “file [the lawsuit] in the fall and which he said would include several state lawmakers as plaintiffs.”

Given the generally supportive stance of most Republican lawmakers towards TABOR and the generally more hostile attitude of many Democrat lawmakers toward TABOR’s fiscal constraints (as evidenced by the nearly lock-step, party-line support of the TABOR-evading “Dirty Dozen” tax increase bills recently rammed through the Colorado Legislature), it might be assumed that the “several state lawmakers as plaintiffs” might be found among the Democrat caucus.

“However, several Democrats said the lawsuit doesn’t represent a viable solution…

Rep. Lois Court, D-Denver, said the lawsuit would ironically attack the one part of TABOR most lawmakers are in favor of: the right of voters to approve tax increases.”

“I don’t think that part of TABOR is what the people of Colorado are interested in fixing,” she said. “I think it’s why people voted for TABOR.”

(Ironically, Rep. Lois Court voted Yes on ALL of the “Dirty Dozen” tax increase bills before the House, bypassing that “one part of TABOR most lawmakers are in favor of: the right of voters to approve tax increases”).

So why is Fenster - after months of rumors - pressing forward with his lawsuit now?

Criticism of the “Dirty Dozen” tax increase bills on constitutional grounds - citing the bills’ blatant violation of the letter and intent of the Taxpayer’s Bill of Rights, whatever the pretext afforded for the bills by last year’s Colorado Supreme Court ruling in the “Mill Levy Tax Freeze” case - has highlighted the role of TABOR in affording constitutional protections for the rights of Colorado citizens (yes, including employees and owners of small businesses - even big businesses - in the state).

Many advocates for the tax increase bills - either within the Legislature or among the many special-interest lobbyist groups testifying in favor of passage - claimed that they were necessary to “preserve funding for education” and “save teachers’ jobs” irrespective of the rights of the remainder of Colorado citizens.  Constitution be damned - “we need the money NOW!” (Rep. Jack Pommer, House Finance Committee, comments during witness testimony)

Herb Fenster is a self-described “unrelenting advocate for public education, from early childhood learning through higher education.”  Apparently he, too, believes they “need the money NOW!”

So, you see - it’s “for the children.”

However, even a child can see that bypassing TABOR - and TABOR’s protection of their rights - is NOT “the right thing to do.”

 A recent editorial in the Colorado Springs Gazette (”Sue the people, empower the state“) eloquently defends the right of the People over the power of the state - and underlines the importance of constitutional limits on government power (including “the power to tax and spend”) as a much-needed safeguard for individual rights:

“In a constitutional republic, laws are in place to confine the powers and authority of government in order that individuals and individual rights reign supreme over the wants and needs of a ruling class or the collective.”

The editorial concludes:

“Anyone familiar with the United States Constitution knows that it limits the powers of government in the interest of vesting authority in the individual. Governments have no rights protected by the laws that govern our republic. Only individuals have rights. [emphasis added] The Preamble doesn’t say “We the government.” It says we the governed, written like this: “We the people.”

Citizens in Colorado, ”we the people,” took to the voting booths in 1992 and approved a plan to restrict state government’s ability to unilaterally tax and spend. By approving TABOR, citizens said they would determine the scope of taxing and spending by the governments they pay to serve them. In doing so, the people made Colorado’s Legislature a textbook example of republican government, controlled by citizens. …

The Legislature has no rights. The “public,” as spelled out in the word “republic,” has rights to constrain the Legislature.  That is what Fenster, a seasoned legal scholar, will learn when he loses this fight.”

Defend your constitutional rights against assaults in the courts - 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!) and your contributions - and vote “NO” on retaining these unjust justices!

An alert reader (hat tip to Live Free Colorado) brought the Colorado Springs Gazette editorial criticizing the tax and “fee” ‘bait and switch’ tactics employed by the current administration - thanks to the Mullarkey Majority’s unconstitutional ruling last November - to my attention this morning.

The Taxpayer’s Bill of Rights clearly says that voters have to approve any new tax in Colorado. Many jurisdictions, including the state and Colorado Springs, have danced around this requirement by instituting fees to cover costs that should rightly be funded with taxes. This allows those governments to get what they want - and in all fairness sometimes what they need to serve the public - without the bother of asking permission. The Colorado Supreme Court has been complicit in allowing this, ruling many times that these fees aren’t really stealth taxes. That fact has unfortunately emboldened new abuses of fees, and the latest example is Gov. Bill Ritter’s August raid of the state’s fee-funded tire cleanup fund to help balance the budget.

The Gazette editorial is yet another example of what seems to be a groundswell of opinion critical of the Mullarkey Majority’s outrageous rulings - brought to the forefront by last week’s ruling usurping the power of the legislature to make policy on school funding that kicked off a virtual storm of commentary by some of the most prominent observers of political events in Colorado. (Mike Rosen’s Denver Post column Thursday, Mark Hillman’s excellent article Wednesday, Vince Carroll’s superb commentary Sunday, and - not least -  Independence Institute’s expert analyst on Education Policy (and frequent online commentator)  Ben DeGrow (who’s big - but “not as big as Rasmussen”) Taking on the Colorado Supreme Court last Sunday, too).

The Gazette editorial correctly calls Governor Ritter to account for resorting to ”the ol’ bait and switch” - moving funds collected by fees for a specific purpose (in this case, the tire waste fund) - into the general fund in order to “balance the budget”:

Any time a fee is imposed by government, the legislation setting up the fee provides for how the money is to be spent. A fee should address a specific issue to be addressed with that revenue. The tire waste fund comes from a $1.50 fee the state charges when you buy a new tire and leave the old one at the dealer. It is supposed to be used to subsidize tire recycling efforts in the state. The subsidy is needed because, according to a recent Denver Post report, the demand for recycled tires isn’t high enough to make recycling profitable, and Colorado has the largest stockpile of old tires in the nation. Ritter’s actions exacerbate the problem. Worse, though, his raid on the waste tire fund created what is essentially a new tax on tires.

The Colorado high court disagrees, saying, in essence, that as long as revenue from a fee goes into the fund for which it was intended, it’s still a fee, regardless of what it’s spent on. Additionally, the court says that because the revenue is already in the state coffers, it’s not new revenue if it is moved to the General Fund. Using the court’s rationale, the Legislature could charge a fee to, say, offset damage to state roads from large pickup trucks and SUVs. It could then raid that fund to pay for capital improvements or maintenance to public school buildings.

Any way you slice it, that’s underhanded and a breach of the public trust.

 The Mullarkey Majority’s semantic shenanigans - playing fast and loose with the letter of the law, the very Constitution they are sworn to support and uphold - have aided and abetted numerous underhanded, unconstitutional legislative sleights of hand and breaches of the public trust.

DON’T LET THEM GET AWAY WITH IT!  Exercise your rights (while you still have them) - hold the unjust justices of the Mullarkey Majority accountable to the Colorado Constitution and the rule of law.  Exercise YOUR right to vote “NO” on retaining the four unjust justices of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your rights: your right to have policy decided by elected, accountable legislators (not unelected judges); your right to vote on tax increases; your right to defend your homes and business from seizure by rapacious governments; and your right to enjoy the benefits of the rule of law, not rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your voice (Sound Off!), your contributions, and “NO” vote on retaining these unjust justices in 2010!