eminent domain abuse

Colorado Car Tax “Late Fees” = $31.5M ‘Highway Robbery’ aided and abetted by Colorado Supreme Court

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!

Living (effectively) without a Constitution in Colorado – courtesy of the Colorado Supreme Court

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 presents: judicial retention elections and the Colorado Supreme Court pending Chief Justice Mullarkey’s “retirement” in Saguache tonight

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!

Clear The Bench Colorado presents: judicial retention elections and the Colorado Supreme Court pending Chief Justice Mullarkey’s “retirement” in Montrose tonight

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 Montrose Thursday evening starting at 6:00PM, continuing a tour of southwest Colorado this week (other stops include Buena Vista Tuesday, Gunnison on Wednesday, and Saguache on Friday, 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!

Colorado Supreme Court justices backed by legal establishment – State Commission on Judicial “Performance” recommends retention despite consistent pattern of disregarding clear constitutional language

Yesterday’s publication of the Colorado Office of Judicial Performance Evaluation  ”Judicial Performance Reviews” for 2010 surprised absolutely no one in the state by continuing a decades-long pattern of ‘rubberstamping’ retention recommendations for nearly all (but one) of the Colorado judges and justices subject to voter accountability on the ballot this November.  True to form, the commissions maintained their pattern of recommending a “retain” vote in 99% of the retention questions on the ballot (actually slightly increasing their historic average of 98.5% to 99.25% “retain” recommendations this year).

The State Commission on Judicial Performance (the commission “reviewing performance” of Colorado Supreme Court justices and Colorado Court of Appeals judges) continued their decades-long pattern of 100% “retain” recommendations by endorsing incumbent Colorado Supreme Court justices Bender, Martinez, and Rice despite their consistent pattern of disregarding clear constitutional language in a succession of rulings (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, among others).

Have the commissions completely lost all remaining shreds of credibility?  Many commenters believe so…

Although the commissions (and the non-transparent, unaccountable and political insider-dominated “performance review” process that has served to protect the incumbent judicial officeholders) have their defenders, as exemplified by a recent Denver Post guest commentary (“Criticism of retiring Judge (sic) Mullarkey unfair“) and the “usual suspects” such as the bar associations, trial lawyers associations, and other legal profession advocacy groups (such as the Grueskin group formed to defend Colorado Supreme Court incumbents and oppose the growing influence of Clear The Bench Colorado), an increasing number of Colorado Citizens are beginning to question the commission’s legitimacy and are looking behind the curtain – demanding greater transparency and accountability from our government.

Clear The Bench Colorado has been critical of the lack of substantive information provided by the “Judicial Performance Review” commissions (c.f.  Accountability, Transparency apply to the Colorado Supreme Court, too) as have other independent analysts (for example, this article published by the Denver Post, “Evaluating the performance of justices“, back in February).  As noted previously,

The reports issued on each judicial officeholder by the commissions (and appearing in the “Blue Book”) take the form of a “narrative” which by rule “shall consist of 5 short paragraphs totaling not more than 500 words” – only one of which (paragraph 4) may even address “description of the performance of the justice or judge” at all!  The remaining paragraphs (the bulk of the “evaluation”) list the commission recommendation, including vote (1); describe “biographical data” (2); list “previous employment” (3); and conclude with a catch-all mostly devoted to survey statistics (5).

The narratives are heavily biased towards retention of incumbents; rules restrict the recommendations based on results of questionnaires distributed to a select group (predominantly other judges, attorneys, and a very limited number of people actually appearing before the highest court).  Also, the incumbents under “evaluation” have the opportunity to respond to the draft narrative and request changes prior to publication (wouldn’t you like the chance to re-write your own job review?)

What does eventually appear in the “Blue Book” is so watered down and lacking in substance that it’s almost impossible to make any distinction between ‘excellent’ and ‘poor’ judicial performance.  In fact, if anyone thinks that these reviews are helpful in evaluating appellate court judges and justices, please let me know – and explain how they helped you “judge the judges.”

Reviewing this year’s “performance review” narratives on the Colorado Supreme Court justices subject to voter retention this year, it is difficult (if not impossible) to discern just how the commission reached the conclusion to “retain” these justices in office for another 10-year term.

Take, for example, the commission’s “review” of Colorado Supreme Court Justice Michael Bender.  The one short paragraph (of five total) actually purporting to address Bender’s “performance” on the bench includes the following:

Several attorney comments reflected concern that Justice Bender’s opinions are result oriented. The judges surveyed indicate that Justice Bender’s performance is somewhat weaker for refraining from reaching issues that need not be decided, making reasoned decisions, and being fair and impartial…  some opinions are overly detailed and difficult to follow.

Opinions that are “results-oriented” (i.e. textbook definition of judicial activism) and “difficult to follow” while “reaching issues that need not be decided” (again, judicial activism) while receiving weak ratings for “making reasoned decisions, and being fair and impartial…”  What’s not to like?  Clearly, a ringing endorsement for a “retain” vote.

Colorado Citizens deserve better.  Most importantly, Clear The Bench Colorado agrees with critics of the commission “reviews” (see “Judging Colorado’s Supreme Court justices” letter to the editor)  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 three out of the seven justices on the Colorado Supreme Court who will be on the ballot 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 unjust 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 (er, now three) ‘unjust justices’ of the Mullarkey Majority (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 homes and business from seizure by abuse of eminent domain, and your right to enjoy the benefits of the rule of law, instead of rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions – and vote “NO” on retaining these unjust justices in the November elections!

Clear The Bench Colorado continues the Grassroots Revival: discussing judicial retention elections and the Colorado Supreme Court pending Chief Justice Mullarkey’s “retirement” in Gunnison tonight

The resurgence of “We The People” in the form of local citizens banding together in grassroots civic action organizations to defend our constitutional rights is THE continuing political story of the year 2010 in America and is profoundly affecting Colorado Politics in this year and beyond…

Clear The Bench Colorado Director Matt Arnold is both proud and humbled to have been invited as a guest speaker to several such groups over the last several months – beginning with the massive (7000+) crowd at the first Tax Day Tea Party rally at the Denver Capitol and continuing through several events throughout the Spring (examples here, and here), Summer (examples herehere, and here) Fall (examples herehereherehere, and here) and Winter (examples here, and here) of 2009 – we’re back for more in 2010, most prominently at the Tax Day Tea Party rallies on April 15th.

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 Gunnison Wednesday evening starting at 6:00PM, continuing a tour of southwest Colorado this week (other stops include Buena Vista Tuesday, Montrose on Thursday, and Saguache on Friday, 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!

Clear The Bench Colorado presents: judicial retention elections and the Colorado Supreme Court pending Chief Justice Mullarkey’s “retirement”

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 – at the Centennial Peaks Republican Women (American Legion Hall, Buena Vista) event Tuesday starting at 6:00PM, kicking off a tour of southwest Colorado this week (other stops include Gunnison, Montrose, and Saguache, 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!

“Mullarkey Majority” – minus Mullarkey – on Colorado Supreme Court have all officially filed to seek retention on the bench for another 10 years

All Colorado Supreme Court justices with terms ending in January who are not named Mary Mullarkey are officially running in November’s retention election.

Today’s Law Week Colorado broke the news that the roster of ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority” (minus, of course, Chief Justice Mullarkey herself, who last month announced her intent to retire rather than be held accountable by voters in the November elections) seeking retention in office for another 10-year term on the bench is now complete. Incumbent Colorado Supreme Court Justice Alex Martinez joined his colleagues (incumbent Justice Nancy Rice, who filed the week before last, and incumbent Justice Michael Bender, who filed at the end of May) in seeking voter approval for another ten years with which to further erode the constitutional rights of Colorado citizens.

The Colorado Supreme Court exercises enormous power over our lives – and in the case of these three incumbents, has consistently wielded this power at our expense.  The current majority has repeatedly demonstrated that it does not exercise its power with restraint or respect for your constitutional rights – repeatedly ruling against individual protections, growing the government’s ability to take away from citizens.  Upholding tax increases (such as the “Mill Levy Tax Freeze” property tax increase, or the “Dirty Dozen” new tax laws) imposed without the constitutionally 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) – these Colorado Supreme Court incumbents are acting like rulers, with you as the subjects; re-writing the laws, instead of upholding them.

Fortunately, in Colorado, we retain the right of refusing to retain these ‘unjust justices’ in office; we can prevent them from taking away our rights with the stroke of a pen, by exercising our own rights with the push of a button.

We The People can (indeed, as citizens, we must) hold our public officials – both elected and appointed – accountable.  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 – 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.”  Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions – and exercise your right to vote “NO” on giving these unjust justices another 10-year term!

Monday Media Review – Spotlight on Judicial Performance Evaluation, judicial retention elections for Colorado Supreme Court

Never before in Colorado history has so much attention been paid to the extremely important issue of judicial retention elections – and, as citizens across Colorado are discovering, the attention is long overdue.

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.

Awareness is also growing that the system of “judicial performance evaluations” by a select few (10) politically connected individuals on the State Commission on Judicial Performance, with members appointed by the Governor (3), Senate President (2), House Speaker (2), and Chief Justice (3) (talk about the fox watching the henhouse!) has consistently served more to protect incumbents (recommending “retention” for 98.5% of judicial reviews!) than to provide substantive, useful information to the public to enable them to exercise their rights as informed citizens to hold our judiciary accountable.

Defenders of this status quo – advocates of keeping the public in the dark about the actual performance of the Colorado judiciary, particularly our highest court, have already fired off the first salvos (“Criticism of retiring Judge (sic) Mullarkey unfair”).  Our response to this attempt to pull the wool over the eyes of Colorado voters (Accountability, Transparency apply to the Colorado Supreme Court, too) – published (in abbreviated form) in the Denver Post as “Demand accountability from judges, too” has triggered a lively discussion, on the pages of the Post (“readers respond” with comments, and “more reader response” later in the week) and elsewhere.

The latest edition of the Colorado Statesman examines the issue of judicial retention in greater detail (“Judges up for retention face widespread scrutiny this year“).  Beginning with an overview of the retention election process and timelines (including the terms of office for various levels of the judiciary – for the Colorado Supreme Court, the term is 10 years), the article continues with a description of the “evaluation” and review process and the “players” in that process:

Judicial evaluations are governed by the State Commission on Judicial Performance. …

The state commission is made up of ten members; four attorneys and six non-attorneys. Members, who serve four-year terms, are appointed by the Chief Justice, governor, Senate President and Speaker of the House.

The article summarizes the evaluation process, and notes some of the statistics demonstrating it’s lack of rigor and effectiveness:

At the end of the process, each evaluation produces a narrative for the ballot and the Legislative Council Blue Book, which recommends that the judge be retained, not be retained or that the commission has no opinion on retention. The evaluations will also be available on August 3 on the website of the Office of Judicial Performance Evaluation (www.coloradojudicialperformance.gov/index.cfm).

Since judicial retention evaluations began in 1988, there have been 953 judges on the ballot. Fifteen got recommendations against retention and 10 got “no opinion.” Another seven were voted out. In the last retention election in 2008, 102 out of 103 judges were retained by voter approval.

The article goes on to note that “Commission members must read the opinions written by judges when they do the evaluations.  Unfortunately, the article also put out some apparent misinformation, quoting the commission’s current chair (Paul Farley) that “rules requiring the reading of every opinion put too much of a burden on the members.”  Farley appears to be angling for a job, or at least fishing for sympathy, because there is no such requirement in the rules – in fact, the commission must read only 5 opinions submitted by the justice being reviewed, plus another five selected by the commission.  The commission’s Rule 11 (e) states:

“(e) Each appellate judge or justice shall submit to the state commission five opinions he or she authored, including both civil and criminal cases, at least one separate concurrence or dissent, and in the case of a judge of the court of appeals, at least one unpublished opinion. The state commission shall review the decisions, as well as five additional opinions authored by the appellate judge or justice, for compliance with the statutory criteria for legal knowledge and for adherence to the record, clarity of expression, logical reasoning, and application of the law to the facts presented.

Farley also presents the false analogy of playing the numbers game, suggesting that “majority rules” in evaluating decisions “by the numbers”:

One case where a judge may “miss the mark” in ten years “doesn’t tell us much,” Farley said. In a situation where one opinion may be viewed negatively “we wouldn’t say it was a terrible judge who should be thrown out. You’d want to see a trend – a judge who misses the mark over a period of time,” Farley said.

Clear The Bench Colorado agrees completely that only a consistent pattern of violating the Constitution and the rule of law should provide grounds for removal – but rejects the false notion that we should give justices a “pass” on significant violations.  Our analysis has highlighted several (not “one or two”) decisions that have the most impact on Colorado citizens and the state as a whole, and that have most blatantly and egregiously violated the clear language of the Colorado Constitution.  The fact that the “Supremes” might get it right on several less broadly consequential cases does NOT excuse the fact that on the most impactful cases, dealing with core issues of constitutional law and affecting the entire population of the state, the current majority has repeatedly come down on the wrong side of the law and violated your rights under the Colorado Constitution.

The Colorado Statesman article concludes with a critique of the lack of public participation and transparency in the review process (which operates almost entirely behind closed doors, shielding the evaluations from public scrutiny, blocking public participation, and necessarily undermining confidence in the system’s impartiality and accountability).  Clear the Bench Colorado Director Matt Arnold was interviewed for the article:

Arnold said he is less concerned about the performance evaluation process at the lower court levels. “You have more public input at [those levels],” he said. For those judges, there’s more public input, a larger sample size and more opportunities for a broad range of public participation.

But in general, Arnold said there isn’t enough public participation and transparency in the process. All documentation and deliberations are secret, he said, which creates a “fatal flaw. For a system that supports transparency it fails miserably.”

Part of the problem is the rules of the commission, which Arnold says limits what members can consider and can put out for the public. Arnold said the same people who evaluate the judges or justices often have business before them, and in the case of the Colorado Supreme Court, at least one member is appointed by the Chief Justice who then can take part in the evaluation of that justice’s performance.

Arnold said that under the commission rules, the judges and justices can “cherry-pick” five of the cases for review, and the last five are sometimes recommended by the judges and justices, too. In addition, those under review have the opportunity to review the critiques from surveys and commissioner input and then weigh in on those reviews. “It’s like giving your job review and rewriting it before it becomes official,” Arnold said. “That cries out for reform.”

Arnold notes that the state commission is required by rule to look at issues for appellate judges and justices that have little to do with the judge’s adherence to the constitution and the rule of law, Arnold explained. That includes whether the judge runs a neat and orderly courtroom, whether the judge is on time for hearings and has an “appropriate demeanor. It’s like a kindergarten report card, not a professional review.”

Finally, the Blue Book itself gives short shrift to the performance evaluation, according to Arnold. Each judge is described by five paragraphs, only one of which is on judge’s performance. The last four paragraphs list biographical information, the commission’s recommendation and other matters that are not germane to performance, such as volunteer work. In a recent column on his website (www.clearthebenchcolorado.org/) Arnold said the Blue Book analysis is “so watered-down and lacking in substance that it’s almost impossible to make any distinction between ‘excellent’ and ‘poor’ judicial performance.”

Arnold said he would like to see the review process include more opportunity for public input. “There’s very little opportunity for independent review in a process that is very insular,” he said. Arnold is also troubled by how commissioners are chosen – as political appointees and “largely beholden to the people who put them there in the first place. It undermines credibility and transparency and that’s not public accountability.”

“I like the idea of a performance review,” Arnold said. The problem is “the process is too closed…it’s like the fox guarding the hen house.”

We The People can (indeed, as citizens, we must) hold our public officials – both elected and appointed – accountable.  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 – 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.”  Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions – and vote “NO” on giving these unjust justices another 10-year term!

Monday Media Week in Review – Colorado Supreme Court, judicial nominations and retention, and Clear The Bench Colorado in the news

Media coverage of the issues of judicial retention (both the performance review process and the upcoming November elections) and the process for reviewing and nominating applicants for judicial appointments (particularly for the Colorado Supreme Court opening created by Chief Justice Mary Mullarkey’s announcement of her intent to retire rather than be held accountable by voters in the November elections) has picked up considerably following the Denver Post’s recent publication of our response (“Demand accountability from judges, too”) to an earlier article bemoaning critiques of the courts (“Criticism of retiring Judge (sic) Mullarkey unfair”).

The Denver Post kicked off the week by acknowledging in print for the first time since February (”Four Colorado Supreme Court justices face a tough vote in elections“) that “four state Supreme Court justices [may not] survive an attempt to remove them from the bench this election” – and obliquely credited Clear The Bench Colorado with raising awareness of the issue:

This election, the group Clear the Bench Colorado is advocating voters reject all four Supreme Court justices up for retention because of rulings it believes are unconstitutional.

(Technically, only three Colorado Supreme Court justices are likely to be subject to a retention vote following Chief Justice Mullarkey’s announced intent to retire, but we’re not going to quibble).  The Denver Post story was also picked up by a number of media outlets across the state, both print and online.

Throughout the week, Law Week Colorado reported on a seeming epidemic of judges at various levels who have announced their intent to leave office rather than stand for retention this year – beginning with Colorado Court of Appeals Judge Sean Connelly (after only 2 years on the bench), followed by Larimer County Court judge Cynthia M. Hartman (also after only 2 years in office) joining the earlier announced retirement of Douglas County Court judge Michelle Ann Marker, bringing the number of announced retirements to four total (including Colorado Supreme Court Chief Justice Mary Mullarkey).  Although four announced retirements in one cycle may not seem to indicate an avalanche of impending judicial vacancies, the pace and timing of the announcements has struck several seasoned observers of the Colorado judiciary as unusual.

Curiously enough, embattled former prosecutors (and current Larimer County District Court judges) Jolene Blair and Terrence Gilmore have NOT elected to leave office, filing paperwork last week declaring intent to run for retention, and will face the voters in November.  Likewise, Colorado Supreme Court Justice Nancy Rice also announced (today) her intent to seek retention in office for another 10-year term.

Another national observer of legal news and affairs (Chicago-based Legal Newsline, a self-described “Internet-based newswire dedicated to 24/7 coverage of state supreme courts and state attorneys general”) joined in with coverage of the upcoming Colorado Supreme Court retention elections from afar (“Group wants lineup of Colorado Supreme Court radically changed“) – demonstrating the national scope of interest in the issue.  (Not to mention that Clear The Bench Colorado has been on the radar of the left-wing Huffington Post and the George Soros funded and “progressively” oriented ‘Justice At Stake’ group for several months already).

Finally, an analyst critiquing a column in yesterday’s Boulder Daily Camera (“Gunning for Guns” by Mike Ellis), which at least presented a defense of constitutional rights by someone admittedly “nervous around guns,” correctly points out (as we have indicated numerous times) that the campus gun bans at Colorado State University and the University of Colorado are matters of state law involving concealed carry (NOT, strictly speaking, 2nd Amendment issues, even following the McDonald v. Chicago “incorporation” decision) and therefore subject to ultimate decision by the Colorado Supreme Court (and not the Supreme Court of the United States).  Lose these cases here in Colorado, and you’ve lost for good.  The commenter notes:

People on both sides of the gun rights/gun control debate (and even people who aren’t particularly interested in the gun rights/gun control debate) need to be clear on what the Supreme Court’s incorporation of the Second Amendment does and doesn’t mean.  In many ways, what it does mean is something that must now be sorted out by the lower courts.  But what it doesn’t mean is very clear-it doesn’t mean that all restrictions on the possession of firearms are now null and void.

The Colorado Supreme Court may very well rule against CU’s gun ban, but it won’t be on the basis of the Second Amendment to the U.S. Constitution; it’ll be on the basis of Colorado state law.

Indeed, a large number of issues are “sorted out” by state-level courts (far more than ever ultimately make it to the Supreme Court of the United States). 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 - exercise your right to vote “NO” this November on the four ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home 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 your contributions – and vote “NO” on giving these unjust justices another 10-year term!

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