Colorado’s State Board of Education voted 4-3 Tuesday morning to appeal Denver District Court Judge Sheila Rappaport’s ruling against the state in the Lobato school funding lawsuit.  Colorado Governor John Hickenlooper had officially announced last Wednesday* that the state would appeal Denver District Court Judge Sheila Rappaport’s ruling that the state’s education funding is not “thorough and uniform” as referenced in constitutional language (Colorado Constitution, Article IX, Section 2).  Rappaport’s 183-page ruling also paved the way for court-ordered tax increases, stating:

“It is also apparent that increased funding will be required.”

The state education board’s decision to appeal the Lobato ruling is significant because although the board’s vote to appeal Rappaport’s ruling was decided on a party-line basis (Education News Colorado)

(SBE’s four Republicans, Bob Schaffer, Marcia Neal, Paul Lundeen and Deb Scheffel, voted for appeal while Democrats Elaine Gantz Berman, Jane Goff and Angelika Schroader voted no)

the board joins Democrat Governor John Hickenlooper and Republican Attorney General John Suthers in a broad, bipartisan coalition of state elected officials seeking to overturn judicial usurpation of executive and legislative authority.

Governor Hickenlooper and Attorney General Suthers had earlier warned of “devastating” consequences for the state if the Lobato plaintiffs were successful in forcing additional school spending.

Although the lawsuit (and Rappaport’s ruling) is likely to be overturned (thanks to the departure of former Chief Justice Mullarkey and the more recent resignation of Justice Alex Martinez, 2 of the original 4 votes keeping the Lobato lawsuit alive in 2009 are now gone), appealing the case will cost Colorado taxpayers plenty:

[Mike] Saccone [spokesman for the attorney general's office] said the legislature has appropriated up to $3.5 million to defend the state against the suit.

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).

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.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

Read more about the Lobato school funding case in these articles:

• “Judicial Overreach” (Pueblo Chieftain editorial, 14 December 2011)
• “Judge Sets Constitution Aside in School Finance Ruling” (Audio, Education Policy Center, 12 December 2011)
• “Victory for Lobato Plaintiffs” (Education News Colorado, 9 December 2011)
• “Lobato case primer” (Education News Colorado, 11 August 2011)
• “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
• “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)
• “Lobato education-funding budget-buster aided & abetted by Colorado Supreme Court” (8 August 2011)

The Attorney General’s office has also compiled a full list of key pleadings and court decisions in the Lobato case.

Cases such as Lobato - particularly Rappaport’s biased ruling - 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.

* Governor Hickenlooper responded to a question at a 13 December 2011 town hall event about Lobato that he was leaning towards an appeal, since the court’s ruling “clearly violated TABOR” and Colorado voters had recently rejected a tax increase purportedly targeted for education funding (Prop. 103).

The Constitution says we can’t raise taxes without a vote of the people - the people just voted specifically on more revenues for education, and the people pretty clearly voted 2-to-1 that this was a bad idea. So how can the courts say that we should do it?

Governor Hickenlooper clearly disagreed with Rappaport’s ruling, and clearly expects to win on appeal, since the alternative would plunge the state into a constitutional crisis:

“Let’s say that the Supreme Court agrees with the district court - if that’s the case, then we’ve got the Constitution versus the Supreme Court.”

Listen to audio update on the Lobato appeal (playing this week on 560KLZ The Source)

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 Governor John Hickenlooper officially announced Wednesday* that the state would appeal Denver District Court Judge Sheila Rappaport’s ruling that the state’s education funding is not “thorough and uniform” as referenced in constitutional language (Colorado Constitution, Article IX, Section 2). Rappaport’s 183-page ruling also paved the way for court-ordered tax increases, stating:

“It is also apparent that increased funding will be required.”

Rappaport’s 183-page opus spends a mere 10 pages even purporting to address issues of law (the remainder is dedicated to a lengthy exposition of the judge’s views on the educational system and her personal opinions on the worthiness of various witnesses) and fails to address how to enforce funding increases in compliance with other constitutional provisions.  As the governor’s statement noted,

“The judge’s decision provided little practical guidance on how the state should fund a ‘thorough and uniform’ system of public education,” said Hickenlooper.  ”Moreover, while the judge focused on the inadequacy of state funding, she did not reconcile this issue with other very relevant provisions of the Constitution, including the Taxpayer’s Bill of Rights, the Gallagher Amendment and Amendment 23.”

A Denver Post article (”Gov. Hickenlooper to appeal Lobato education-funding decision to state Supreme Court; state board of education delays its own decision“) also noted the budgetary implications:

The lawsuit seeks no specific sum of money, but plaintiffs have pointed to studies estimating the state is underfunding education by as much as $4 billion.

The state now spends more than 40 percent, or $3.2 billion in the 2010-11 fiscal year that ended in June, of its almost $7 billion general fund on K-12 schools.

Coloradans in November by a two-to-one margin shot down a $3 billion tax increase measure for schools.

Governor Hickenlooper and Attorney General Suthers had earlier warned of “devastating” consequences for the state if the Lobato plaintiffs were successful in forcing additional school spending.

Although the lawsuit (and Rappaport’s ruling) is likely to be overturned (thanks to the departure of former Chief Justice Mullarkey and the more recent resignation of Justice Alex Martinez, 2 of the original 4 votes keeping the Lobato lawsuit alive in 2009 are now gone), appealing the case will cost Colorado taxpayers plenty:

[Mike] Saccone [spokesman for the attorney general's office] said the legislature has appropriated up to $3.5 million to defend the state against the suit.

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).

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.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

Read more about the Lobato school funding case in these articles:

• “Judicial Overreach” (Pueblo Chieftain editorial, 14 December 2011)
• “Judge Sets Constitution Aside in School Finance Ruling” (Education Policy Center, 12 December 2011)
• “Victory for Lobato Plaintiffs” (Education News Colorado, 9 December 2011)
• “Lobato case primer” (Education News Colorado, 11 August 2011)
• “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
• “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)
• “Lobato education-funding budget-buster aided & abetted by Colorado Supreme Court” (8 August 2011)

The Attorney General’s office has also compiled a full list of key pleadings and court decisions in the Lobato case.

Cases such as Lobato - particularly Rappaport’s biased ruling - 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.

* Governor Hickenlooper responded to a question at a 13 December 2011 town hall event about Lobato that he was leaning towards an appeal, since the court’s ruling “clearly violated TABOR” and Colorado voters had recently rejected a tax increase purportedly targeted for education funding (Prop. 103)

The Constitution says we can’t raise taxes without a vote of the people - the people just voted specifically on more revenues for education, and the people pretty clearly voted 2-to-1 that this was a bad idea. So how can the courts say that we should do it?

Governor Hickenlooper clearly disagreed with Rappaport’s ruling, and clearly expects to win on appeal, since the alternative would plunge the state into a constitutional crisis:

“Let’s say that the Supreme Court agrees with the district court - if that’s the case, then we’ve got the Constitution versus the Supreme Court.”

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.

Although three more vacancies will open on Colorado’s Supreme Court Nominating Commission (along with 42 other vacancies on judicial district nominating commissions across the state) when the terms of several current commissioners expire, the appointment last week of Ira J. Paulin to fill the non-attorney slot from the 4th Congressional District fills the final vacancy before the commission begins reviewing applications (beginning October 3rd) to replace outgoing Justice Alex Martinez, who announced at the end of August that he is resigning to take the job of Denver Manager of Safety.

Another vacancy (the attorney slot from the 7th Congressional District) was recently filled (by joint action of Governor John Hickenlooper, Attorney General John Suthers, and Chief Justice Michael Bender) by Deputy District Attorney Charles Tingle of Jefferson County.

(H/T to Law Week Colorado for covering the news of these recent appointments and profiling the current members of the Commission (”Meet Those Who Will Help Select Colorado’s Next Justice“)

The resignation of Justice Alex Martinez, who was retained in office last November with 59.2% of the vote (the lowest percentage of “retain” votes received by an incumbent supreme court justice in state history) will provide Governor Hickenlooper with his first opportunity to select a state supreme court justice, once the commission pares down the list of applicants to three “finalists” from which he’ll make the final pick.  Governor Hickenlooper’s Colorado Supreme Court appointment will not only provide some insight into the governor’s views on judicial philosophy and the rule of law, but also provide a preview of the likely direction of the state’s highest court.

Will Governor Hickenlooper reinforce the stated desire of new Chief Justice Michael Bender to “de-politicize” the court (responding to criticism of the court’s performance by Clear The Bench Colorado and other observers) or will he succumb to the temptation to place another partisan, activist judge in the mold of disgraced former Chief Justice Mary Mullarkey on the bench?

Only time (and the announcement of the Nominating Commission’s selection of three “finalists”) will tell.

Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges - who understand that their role is to fairly & impartially uphold and apply the law - are elevated to hold judicial office, instead of more politicians in black robes.

This is particularly important in selecting the next Colorado Supreme Court justices - who all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.

Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens - that our supreme court justices are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.

Our view: an informed citizenry and active citizen participation is vital in restoring accountability and transparency to the 3rd branch of state government, the judicial branch - most particularly for the Colorado Supreme Court.

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.

Citizens of Colorado hold elections every year to send representatives to different venues to consider and decide on policy (and allocate resources) for their children’s education: in odd-numbered years, for local school boards; in even-numbered years, for the state legislature, which has the constitutional authority to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.”

Yet ultimately, the decisions about how education is funded, and how schools are run, are being made in neither of these arenas, but in the courts.

News coverage this week has highlighted this fact with two prominent cases:

• Douglas County school choice voucher program
• Lobato v. Colorado education-funding lawsuit

In the Douglas County school voucher program, the issue before the court revolves around whether an elected school district board has “the broad authority to contract with private schools for the provision of a public education to public school students.” [per Education Policy Center]  One might think that making decisions about the provision of public education is precisely why county residents elect a school board, but apparently (at least in the view of the plaintiffs, and the courts in Colorado) those decisions are better made by appointed judges.

The Douglas County case also touches upon important constitutional issues such a separation of powers, establishment of religion, and collection & allocation of tax dollars, but ultimately comes down to a very basic and fundamental issue: who decides how to educate Colorado’s children?

For additional information on this case, read:

• “Judge orders halt to Douglas County voucher program“, Denver Post (12 August 2011)
• “Judge halts voucher pilot for now“, Education News Colorado (12 August 2011)
• Denver District Court ruling, Larue v. Colorado Board of Education & Taxpayers for Public Education v. Douglas County School District

Lobato v. Colorado education-funding lawsuit

The case with far broader implications for public education in Colorado (and the state’s budget) is the Lobato v. Colorado education-funding lawsuit, which just wrapped up the 2nd week (in a trial expected to last 5 weeks total) of testimony and argument, also in Denver District Court.

In this lawsuit, plaintiffs allege (on the basis of a single phrase in the state Constitution, without regard for the actual assignment of decision-making authority and responsibility to the state legislature in that same phrase) that Colorado’s school-funding system is “unconstitutional.”  Plaintiffs seek an additional $3-4 BILLION per year in state spending (plus a near-term increase in school construction of some $18 Billion) to “fix” the alleged constitutional deficit.

One not need look very far (indeed, just across the border to Kansas) to see the potential for a fiscal and budgetary train wreck of epic proportions.  Indeed, as Governor Hickenlooper correctly points out, the consequences for Colorado would be “devastating.”

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).

Bottom Line: the lawsuit seeks money the state simply does not have, based on extremely tenuous grounds (a few words in the state Constitution calling for “thorough and uniform” education), and is improperly seeking to achieve these goals via the courts, not through the legislative branch or local school boards where such issues are properly decided.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

Read more about the Lobato school funding case in these recent articles:

• “Lobato case primer” (Education News Colorado, 11 August 2011)
• “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
• “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)

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.

The potentially budget-busting Lobato v. Colorado education-funding lawsuit - restored to life in October 2009 by the Colorado Supreme Court after having been rejected as non-justiciable by two lower courts - enters its second week of trial court hearings today.

Numerous analysts and commentators have noted that if the Lobato lawsuit succeeds, it will negatively impact Colorado’s schools and end up hurting - not helping - Colorado’s school-age children.  Shortly before the lawsuit went to trial last Monday, Colorado’s Democrat Governor John Hickenlooper and Republican Attorney General John Suthers took the unusual step of issuing a joint statement opposing the lawsuit, “arguing that it could cost the state billions of dollars if it loses in court.”

Over the weekend, Colorado’s leading newspapers weighed in further on the issue.

Sunday’s Denver Post (”Future uncertain if plaintiffs win education-funding Lobato case“) highlighted the uncertainty around just how deeply the lawsuit could affect Colorado’s budget if successful, calling it “uncharted territory.”  The Post article did note, however:

In other states where such school-funding “adequacy” suits have prevailed, court decisions have forced greater spending on schools. (Emphasis added)

The Pueblo Chieftain’s Sunday editorial, “Billions More,” was less timorous in its conclusions:

HERE WE are trying to dig ourselves out of the Great Recession, with Colorado’s state budget barely balanced with scads of gimmicks, and now a group is seeking a court order for the state to spend umpteen billions more on public schools.

The article further noted the dubious constitutional grounds for the lawsuit:

Attorney General John Suthers argues - correctly, we believe - that discretion in school funding constitutionally rests with voters and lawmakers, not the courts. He said a ruling in favor of the plaintiffs could cost the state up to $4 billion annually.

Worse, the article notes, the plaintiffs have also asked for massive - and immediate - increases in school construction:

Moreover, because the lawsuit asks for massive new school construction, the suit could cost the state an additional $18 billion. (Emphasis added)

Bottom Line: the lawsuit seeks money the state simply does not have, based on extremely tenuous grounds (an expository phrase in the state Constitution calling for “thorough and uniform” education), and is improperly seeking to achieve these goals via the courts, not through the legislative branch where such issues are properly decided.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

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.

Days before a landmark school-funding lawsuit goes to trial, Gov. John Hickenlooper and Attorney General John Suthers on Thursday took a pre-emptive bipartisan stand against the legal challenge, arguing that it could cost the state billions of dollars if it loses in court. (Denver Post, “Colorado governor, attorney general stand against education-funding challenge“)

When Colorado’s Democrat Governor and Republican Attorney General agree that “education funding should be left to the legislature and voters” and not decided by the courts, it might be an indication of the return of some level of fiscal sanity to state government (or a sign of the impending apocalypse).

Unfortunately, the restoration of some level of sanity to Colorado’s judicial branch (which recently earned the state the title of “judicial hellhole“) may take a bit longer.

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.

Current Chief Justice Michael Bender (together with disgraced then-Chief Justice Mary Mullarkey, joined by justices Alex Martinez and Greg Hobbs) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, not to be decided by the courts).

Unfortunately - thanks to the Colorado Supreme Court’s majority injecting their personal sympathies ahead of the law - this lawsuit has already cost the state tens of thousands, and if upheld will likely lead to court-ordered increases in funding (and, inevitably, taxation) - a violation of separation of powers, and yet another unconstitutional tax increase facilitated by the Colorado Supreme Court.

One not need look very far (indeed, just across the border to Kansas) to see the potential for a fiscal and budgetary train wreck of epic proportions.  Indeed, as Governor Hickenlooper correctly points out, the consequences for Colorado would be “devastating.”

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Exercise YOUR right to vote “NO” on the 4 ‘unjust justices’ of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your homes and business from being seized through eminent domain abuse, and your right to enjoy the benefits of the rule of law, instead of suffering rule by an oligarchy of activist, agenda-driven “justices.”  Please help support Clear The Bench Colorado with your own comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices in November 2010!

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

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

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

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

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

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

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

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

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

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

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

Yes, you can exercise your right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions - and vote “NO” on retaining these unjust justices on the bench this year!

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

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

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

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

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

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

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

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

Defend your right to have a vote before being taxed- and exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your homes and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, instead of rule by an oligarchy of activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices!

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

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

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

Clear The Bench Colorado Director Matt Arnold signed up to testify against these bills on constitutional grounds - since it is clear that each bill represents “a tax policy change…  resulting in a net revenue gain” and therefore, under the Colorado Constitution, requires prior approval by a vote of the people.

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

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

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

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

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

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

Exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority on this year’s ballot (Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey). They need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your homes and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, instead of rule by an oligarchy of activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices this November!