Clear the Bench Colorado

No Friday Funnies this (last) week - instead, Clear The Bench Colorado joins millions of Americans across the country in somber remembrance of the 9/11 attacks on our nation.

What does this have to do with holding our Colorado Supreme Court justices accountable to the rule of law and the Colorado Constitution?  Quite a lot, actually…

As a proud veteran of the U.S. military (including service in the Colorado Army National Guard), I take my oath of enlistment - “I will support and defend the Constitution of the United States and the State of Colorado [emphasis added] against all enemies, foreign and domestic”  - seriously; very seriously.

Many of our elected (and unelected) officials seem to have a much more cavalier attitude towards their own oath of office.

Our Supreme Court justices also swear an oath on taking office, which begins:  “I will support the Constitution of the United States and the Constitution of the State of Colorado.”

Note that the oath of office does not state that ”I will support only those parts of the Constitution I like or with which I personally agree or empathize.”

Yet the Mullarkey Court has consistently ruled against the Colorado Constitution’s Article X, Section 20 (TABOR) in every case it has heard - despite the clear intent and letter of the law that “[i]ts preferred interpretation shall reasonably restrain most the growth of government.”

The Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, Chief Justice Mary Mullarkey) are oathbreakers - and dishonor the service of the men and women of the United States military and law enforcement agencies who put their lives on the line to support and defend our Constitution.  They have proven themselves unworthy of the high office they occupy, and must NOT be retained in that office following the November 2010 elections.  Vote “NO” on these unjust justices!

Another important lesson of 9/11 is that individuals matter - and fighting to defend your rights, and your lives, is the only way to preserve your rights (and your life, in extremis) when under attack.  The true heroes of that day were not only the firefighters but also the ordinary citizens who acted to save lives - and the brave passengers on Flight 93 who fought back against the hijackers on the 4th plane and died not as victims, but as American heroes.

We can no longer be under any illusion - as the passengers on Flight 93 discovered - that our rights and lives are NOT under attack and threatened by enemies both foreign and domestic.  The nature of the threat (and appropriate response) are different, but the need to take action, to defend your rights - are the same.

Freedom isn’t Free - Defend YOUR Constitution, and exercise YOUR right to vote “NO” on retaining the four unjust justices of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your 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, not rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices in 2010!

Welcome to another edition of the Clear The Bench Colorado Friday Funnies - this week, a change of pace from the August “Dog Days of Summer” series (featuring cute & cuddly Colorado canine spokespup Nola) with a view from inside the courtroom.

Although the casual viewer may dismiss this clip as a mere farcical parody of real courtroom procedure, the judges in this sketch display about the same level of legal logic and respect for the rule of law as our own Colorado Supreme Court’s “Mullarkey Majority” in many of their recent decisions.

How else to explain the clear violation of the Colorado Constitution’s explicitly worded prohibition of tax increases without a vote of the people in the notorious “Mill Levy Tax Freeze” case just last March, justified with ridiculous re-wording, tortured terminology and semantic shenanigans?

And just as “nobody expects the Spanish Inquisition“, nobody expected - or even much noticed, at the time - the Mullarkey Court’s “November Surprise” ruling that allowed new taxes to be re-designated as “fees” in order to bypass TABOR (and that pesky requirement to allow people to have a say in tax increases).  Like the late arrival of the inquisitors in this sketch, it’s taken some time for the implications of that case to “make the scene” - but the quadrupling of the “marriage fee”, substantial increase in “vehicle registration fees” along with punitive (and unconstitutional) “late fees” due to the “FASTER” Colorado Car Tax, and of course Governor Ritter’s recent proposal to impose a new Gun Tax as part of his plan to “balance the budget” - are certainly torturing Colorado wallets.

Colorado, it’s time to get up out of the “comfy chair“ and exercise YOUR right to vote “NO” on retaining the four unjust justices of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your 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, not rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices in 2010!

Clear The Bench Colorado Director Matt Arnold made a special studio appearance on Thursday’s 850 KOA Mike Rosen show (hosted by Tom Tancredo).

Listen in to learn more about the grassroots movement to restore accountability to Colorado’s judiciary.  The four unjust justices of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) need YOUR approval to continue taking away your 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, not rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your voice (Sound Off!), your contributions, and “NO” vote on retaining unjust justices in 2010!

Clear The Bench Colorado Director Matt Arnold appeared on the Independent Thinking television program with host Jon Caldara and fellow guest John Andrews for a discussion on ”Voter Approval of Supreme Court Justices” at 8:30 last Friday on KBDI Channel 12 - a CTBC broadcast television debut.  The show will be re-broadcast Tuesday, August 4th at 5PM.

For the impatient or more techno-savvy among you, the show can also be viewed (in 3 segments) on YouTube:

Watch the show Tuesday at 5PM on KBDI Channel 12, or view the video clips, to  learn more about the grassroots movement to restore accountability to Colorado’s judiciary.  Ditch the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) by voting “NO” to retain these unjust justices in 2010! Let’s Clear The Bench, Colorado!

After searching far and wide for recent examples of humorous content relevant to our Supreme Court (and believe me, after a long and busy week, I needed the laugh), I came up empty.  Apparently, it’s been a very unfunny week for the Colorado judiciary.

Looks like we’ll have to generate our own humorous content for the site - and yes, we do have some great projects in the works, but they’re not quite ready for prime time.  Check back next week, though…

Meanwhile, courtesy of designer/illustrator/cartoonist Benjamin Hummel, we reprise his depiction of the straw that broke TABOR’s back: the “Mill Levy Tax Freeze” ruling of 16 March 2009:

The infamous “Mill Levy Tax Freeze” ruling did more than just (unconstitutionally) raise property taxes; it also opened the door to millions in new taxes, some of which were proposed literally hours after the legislature was briefed on the ruling before passing into law in the last legislative session.

Added to the stealthily-issued (the day before national elections) ruling upholding an outrageously expansive definition of “fees” (replacing “taxes”) and the later unconstitutional repeal of the Arveschoug-Bird spending limit, and TABOR has indeed been “bumped off the cliff” by the Mullarkey Court.

Wow - I guess it has been a pretty unfunny week after all.

Don’t let the Mullarkey Court throw grandma (er, TABOR) off the cliff.  Ditch the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) by voting “NO” to retain these unjust justices in 2010!  Let’s Clear The Bench, Colorado!

Come back every week for another edition of the Friday Funnies at Clear The Bench Colorado!

Reprising Thursday’s broadcast “Under The Dome” special report, Clear The Bench Colorado director Matt Arnold appears on Backbone Radio (710 KNUS in Denver, 1460 KZNT in Colorado Springs, and on http://www.710knus.com) at 7PM Sunday evening.  From the original station promo:

“A campaign is underway to vote down Colorado’s chief justice and three of her colleagues on the 2010 ballot.  What are the pros and cons? Get the story from former Senate President John Andrews and his guest experts on “Under the Dome,” a NewsTalk 710 special report.”

If you missed Thursday’s presentation (or just want to hear it again), tune in Sunday evening at 7PM to hear Matt present the case for restoring accountability to our judiciary in Colorado.

Exercise YOUR right to vote “NO” on retaining the four unjust justices of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your rights: your right to vote on tax increases, your right to defend your homes and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, not rule by activist, agenda-driven “justices.”

Let’s Clear The Bench, Colorado!  Vote “NO” on unjust justices in 2010!

Following “three days of grueling questioning” (including such hard-hitting gems as “what was the publisher of  the encyclopedias your working-class mother bought you because she so strongly believed in the value of education” and “Perry Mason won all but one of his cases - what was the one case that he lost?“), Sonia Sotomayor is set to be confirmed as the next U.S. Supreme Court justice - the most rapid (rushed?) confirmation of any Supreme Court justice in U.S. history (beating out current justice and Clinton nominee Ruth Bader Ginsburg by a few days, depending on when the vote is actually held).

It was apparent even before the hearings began that the fix was in (Feinstein: Sotomayor a sure thing). Given the overwhelming numerical advantage of Democrats in the Senate, and hard behind-the-scenes arm-twisting to ensure party discipline, there was little that either “blue-dog” Democrats or Republicans could do to block confirmation.  However, our Senators missed a golden opportunity to stand on principle and make the case for the rule of law, and the importance of confirming (or retaining) justices on that basis.

Instead, the discussion revolved around racial politics (”underlying politics are dicey for Republicans“), personality (She is an amazing, warm and intelligent woman“) and her “inspirational life story:”

Now, I’m as much a fan of “inspirational life stories” as the next guy; and when I have a daughter, I hope she’s just like Gracie (the cute, wide-eyed, precocious kid in the ”Baldo” comic strip, above) - especially since if I have a son, he’s MUCH more likely to resemble Calvin (of Calvin and Hobbes) at that age.  But an inspirational life story is NO BASIS for confirming or retaining a Supreme Court justice! 

A judge’s appearance, gender, ethnicity, “inspirational life story,” etc. are irrelevant.  Our system of justice requires a judiciary committed to upholding the rule of law and equal administration of justice.  Although “we the people” don’t (directly) have a vote at the Federal level, we CAN vote to uphold the rule of law here in Colorado.  Vote “NO” on the unjust justices of the Mullarkey Court in 2010 - let’s Clear The Bench, Colorado!

In a little-noticed ruling issued November 3rd, 2008 (yes, great time to avoid attention, don’t you think?) the Mullarkey Majority on the Colorado Supreme Court quietly handed down an extremely far-reaching decision designed to permanently end-run TABOR and undermine the Colorado Constitution.  Like most people, I missed the significance of this case (Barber vs. Ritter) both at the time (my attention, like most Americans, was focused elsewhere) and even after launching Clear The Bench Colorado.

However, recent expressions of citizens outrage in response to massive increases in vehicle registration fees and exorbitantly punitive late fees - all part of the so-called FASTER bill (SB 108) passed by the Colorado Legislature and signed into law by Governor Bill Ritter, who continues to defend the increased fees - have turned the spotlight on the issue of fees vs. taxes.

Fees vs. Taxes - what’s the difference?

A fee is a charge for use of a service or amenity - the amount of which is related to the cost of providing that service or amenity.  Thus, licensing fees for hunting and fishing help fund game wardens, forestry service personnel, equipment, and property, etc. while fees for visiting state parks similarly help provide for personnel, property, upkeep, and the like.  The key feature of fees is that the user of a given good or service pays, and the funds collected are related to the purpose of providing the good or service.

A tax, on the other hand, while it may be applied to a particular good or service or more generally to the population at large, is collected to raise general purpose revenues.  Taxes collected may be unrelated, or completely disproportionate, to expenditures.  Thus, taxes on sales of goods (alcohol, clothing, etc.) or services (restaurants, dry cleaning, etc.) are not necessarily related to the cost of providing, regulating (e.g. health & safety inspections) or protecting (police, fire, courts, etc.) the goods or services taxed.  Government can spend tax revenues on anything it wants.  That’s why taxes go into the “General Fund” and expenditures are allocated by the legislative budgetary process.

Back in the days when the Colorado Supreme Court apparently still believed in upholding the law instead of engaging in creative exercises of convoluted argumentation to circumvent it (Mullarkey apparently had yet to hit her stride), decisions reflected these definitions and principles.  The 1989 Bloom v. City of Fort Collins decision (mangled almost beyond recognition in the Barber v. Ritter ruling) was clear:

A fee is distinct from a tax in that, “[u]nlike a tax, a special fee is not designed to raise revenues to defray the general expenses of government, but rather is a charge imposed upon persons or property for the purpose of defraying the cost of a particular governmental service.”

Morphing Taxes into Fees - the Mullarkey/Ritter shell game

Governor Ritter, the Colorado Legislature, and the Mullarkey Majority find the requirement to first ask before raising taxes (as required by TABOR) to be rather tiring - and restricting their power to accomplish their goals with your money.  What to do, what to do?  Simple - creatively define their way out of the restrictions; impose fees, instead of raising taxes - no need to ask the voters first; then just transfer the collected revenue (the ol’ shell game) into the general fund, so as to avoid those pesky restrictions on spending the money only on the “particular governmental service” for which the fee was collected.

But these semantic shenanigans can’t be legal, right? That’s what the plaintiffs in the Barber v. Ritter case thought - and they had good legal precedent (Bloom v. City of Fort Collins) on their side, too.  However, they failed to reckon with the logic-bending and creative writing skills of the Mullarkey Court.

Starting with Bloom’s premise that a fee “might be subject to invalidation as a tax” when the “principal purpose” is to raise general revenues, the Mullarkey Majority went on to declare that to find “principal purpose” and legislative intent, “we look to the language of the enabling statute for its expression.”

If the language discloses that the primary purpose for the charge is to finance a particular service utilized by those who must pay the charge, then the charge is a “fee.” On the other hand, if the language states that a primary purpose for the charge is to raise revenues for general governmental spending, then it is a tax. Moreover, the fact that a fee incidentally or indirectly raises revenue does not alter its essential character as a fee, transforming it into a tax. (Barber, p. 26)

Ergo, as long as legislators remember to say that a “fee” is for a particular purpose when drafting legislation, it makes no difference if in practice the “fee” is collected and spent for purposes entirely unrelated to the enabling statute.  Legislators can now avoid the dreaded “ask first” TABOR restrictions on taxes by simply calling it a fee and remembering to specify a particular purpose - say, “restore crumbling bridges” - one can always shift the collected revenues to one’s pet project later.

So what’s the bottom line?  Well, the good news is that thanks to the Mullarkey Majority on the Colorado Supreme Court, you probably won’t see the Colorado Legislature increase taxes much next year - as long as they haven’t completely killed TABOR, they would have to ask your permission first (well, in theory, anyway).  The bad news is that thanks to the Mullarkey Court, they won’t have to raise taxes - they’ll just increase or add new “fees” instead.  Now doesn’t that make you feel better?

Of course, if you’d rather not suffer an increase in either fees or taxes - at least not without being asked specifically first, as is your right under the Colorado Constitution - you have one last chance to DO something about it.  Ditch the Mullarkey Majority - vote “NO” on unjust justices before they can tax you again in 2010!  Let’s Clear The Bench, Colorado!

Clear The Bench Colorado Director Matt Arnold is appearing on a Backbone Radio “Under The Dome” special report this Thursday evening at 7PM (710 AM KNUS).

From the KNUS 710 station promo:

“A campaign is underway to vote down Colorado’s chief justice and three of her colleagues on the 2010 ballot.  What are the pros and cons? Get the story from former Senate President John Andrews and his guest experts on “Under the Dome,” a NewsTalk 710 special report on Thursday night at 7:00.”

Tune in Thursday evening at 7PM to hear Matt present the case for restoring accountability to our judiciary in Colorado by exercising YOUR right to vote “NO” on retaining the four unjust justices of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your rights: your right to vote on tax increases, your right to defend your homes and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, not rule by activist, agenda-driven “justices.”

Let’s Clear The Bench, Colorado!  Vote “NO” on unjust justices in 2010!

Assuming that the Mullarkey Court follows its own precedent (set with last summer’s Telluride Land Grab ruling), Boulder-area land owners (Feeling stepped on in Boulder) are in for some rude treatment at the hands of local government, backed by the Colorado state Supreme Court.

Boulder County appears dead set on following Telluride’s example in seizing private property through eminent domain in order to build a recreational trail - the same county officials who wouldn’t let a rancher build a “picnic gazebo” in his own back yard because it “didn’t jibe with his agriculturally zoned home.”  Now we know why: they wanted to grab the picnic property for themselves.

As the Denver Post article notes on the second page, “Using eminent domain for open space has precedent.”  True - the Mullarkey Majority set that precedent with last summer’s notorious “Telluride Land Grab” ruling in June 2008.  As noted in the article:

Telluride’s valley floor case

In 2004, the town of Telluride condemned its 572-acre valley floor, a pristine meadow where a developer had long envisioned a residential and commercial village. The town wanted the parcel protected as undeveloped open space.

The Colorado Supreme Court weighed in on the Telluride valley floor case and overturned legislation (Ed. ignored legislation by declaring it inapplicable; the law still stands, for what it’s worth) that had restricted open-space takings. Ultimately, Telluride was allowed to condemn its valley floor but had to pay the developer $50 million for rights to the land.

“It is not nearly as common as roads or utilities, but it certainly is not unheard of here in Colorado,” said Jack Sperber, an attorney with the Denver firm Faegre & Benson, who specializes in eminent-domain issues.

… Colorado has statutes allowing for open-space or recreational condemnation, and the Telluride case established a precedent showing open space as a valid public service…

 Uh-oh.  Looks bad for the Boulder County landowners.  But wait, there’s more:

The Telluride case emboldened Colorado municipalities to consider recreation when pondering eminent domain, said Jessica Corry, a policy analyst with the free market-focused Independence Institute in Golden.

The state hasn’t seen more land grabs because municipalities are struggling with dwindling revenue right now, Corry said.

“When coffers start to return to normal levels, I’d predict we’ll see more attempts,” she said.

So the Boulder County landowners may be only the first in a new wave of eminent domain abuse cases to join the victims of the Mullarkey Majority’s Telluride Land Grab.

So is there anything that these property owners can do to defend themselves?  Sure, they can fight the impending Boulder Land Grab in court; they may even be able to take it up all the way to the Colorado Supreme Court, where the Mullarkey Majority will be sure to give them fair, impartial, and evenhanded consideration of their claim to defend their land.

Yeah, right.

OR: they can fight the case in court, and simultaneously do everything in their power to ensure that when their case IS eventually heard by the Colorado Supreme Court, it will be with a fresh set of justices that will actually UPHOLD the law and their constitutional rights.

Just saying.

Ditch the Mullarkey Majority - vote “NO” on retaining unjust justices Michael Bender, Alex Martinez, Nancy Rice and Chief InJustice Mary Mullarkey in 2010!  Let’s Clear The Bench, Colorado!