Midweek Update – more harassment from Colorado Ethics Watch (CEW, pronounced “sue” – it’s what they do) vs. Clear The Bench Colorado
The politically motivated attack (er, “complaint”) by complaint factory “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) against Clear The Bench Colorado reached a new low this week when CEW (pronounced “sue” – it’s what they do) Director Luis Toro attempted to file a subpoena (appearance to testify) for a date on which he knew in advance of filing that the subject (Clear The Bench Colorado Director Matt Arnold) would be unavailable due to performance of military service out of state. Such behavior is utterly despicable and beneath contempt – and may constitute harassment and breach of legal ethical standards.
How did CEW (pronounced “sue” – it’s what they do) Director Luis Toro know this in advance of filing? Simple – because we told him, at the conclusion of nearly three hours of being harangued in a deposition this Monday (mentioning that I would be out of town the following week for my annual military training obligation). Toro’s co-counsel Aaron Goldhamer (of Sherman & Howard, LLC) graciously expressed his thanks for my service, while Toro was conspicuously silent (apparently, my hearing was insufficiently acute to pick up on the gears grinding behind his beady little eyes as he devised his next opportunity for harassment).
For those of our readers who have never experienced the dubious pleasure of being the subject of a legal ‘deposition’ (hopefully most of you), allow me to briefly describe the process (somewhat akin to an EPW interrogation, but without forced sleep deprivation (other than any prep time) or stress positions, (other than wearing a coat & tie).
Like an interrogator, the opposing attorney gets to ask all the questions. Often the attorney will ask the same question, repeatedly (perhaps changing the phrasing, or putting it in a different context) in an attempt to catch (or create) an inconsistency in the response. The respondent is not allowed to challenge the line of questioning, or ask “why do you want to know?” (although the respondent’s attorney may raise objections as to relevance and scope of particular questions or line of argument). Also like an interrogation, the respondent can be compelled to answer (albeit by legal, rather than physical, force).
Going through CEW’s interrogation (er, deposition) was an interesting experience. CEW (pronounced “sue” – it’s what they do) Director Luis Toro did indeed spend a lot of time asking questions to which he already knew (or had previously received) the answer; over the course of the deposition, his frustration with my consistent responses (including documented references) became increasingly apparent. Toro then resorted to the ol’ “restate the answer the way I want it” game (“So what you said was X” when the actual statement was Y or Z). I called him on this trick on several occasions and stated my objections to his attempts to put (false) words in my mouth (wonder how Toro’s tactics will sit with the judge reviewing the transcript?). Toro also attempted on several occasions to “go fish” for information outside the scope of what was allowable in the deposition. When he did, my attorney (I have possibly the best campaign law attorney team in the state – Scott Gessler and Mario Nicolais – in my corner) challenged Toro, who backed down each time he was invited to “call the judge” to resolve the dispute. (In poker, that’s referred to as “calling his bluff”).
The bigger picture here, however, is the abuse of campaign finance rules and regulations via suits and “complaints” by a secretly funded attack group (CEW, pronounced “sue” – it’s what they do), unaccountable to the public, with a pattern of filing frivolous, groundless, and vexatious lawsuits and “complaints” against grassroots groups and citizen initiatives in an attempt to deny popular participation in civic activity. Attacks such as these – abusing the courts and the legal “complaint” process to drive up the cost of civic participation – further tilts the balance in favor of entrenched big-money interests and violates the constitutional rights of citizens to exercise free speech (particularly in the political arena, where those protections are most precious).
CEW’s attacks against Clear The Bench Colorado fit an ongoing pattern of unsuccessful, politically motivated “ethics” complaints designed to distract, disorient, and sling mud in the (vain) hope that something might stick. Ultimately, they don’t care if they win or lose the case (their lopsided loss-win ratio bears this out), since their priorities are (1) smear, (2) frame the media debate and gain attention, (3) divert resources & attention, (4) intimidate, and (5) maybe (if they get lucky) occasionally win a case. As many publications noted at the time, CEW’s attack was just another cheap political stunt. Even the Secretary of State’s office called CEW Director Toro’s statements “disingenuous” (which is a polite way of saying, ‘lying through your teeth’).
So why is “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) still in business, despite their abysmal success rate in winning judgments? Shouldn’t they have run out of (other peoples) money by now?
Not when the “other people” funding CEW (pronounced “sue” – it’s what they do) include multi-billionaire activists Tim Gill, Pat Stryker, Jared Polis, and Rutt Bridges – facilitated by political operatives Al Yates and Mark Grueskin – and a host of other well-heeled attorneys and politically-connected powerhouses who’s identities are kept secret because CEW won’t open their financial records to public scrutiny (in contrast to the open financial records of citizen-led accountability efforts such as Clear The Bench Colorado). Operating at the edges of public awareness (skirting transparency, public accountability, and the ragged edges of campaign finance and other laws), groups like CEW (pronounced “sue” – it’s what they do) coordinate their actions towards advancing the “progressive” agenda statewide (with significant success so far; read The Colorado Model (by Fred Barnes) and, more recently, The Blueprint (by former Rep. Rob Witwer & 9News Reporter Adam Schrager) for an analysis of the success of these groups in Colorado – and beyond).
Unfortunately, even when they lose, they win – by tying up time & talent, diverting resources, and discouraging honest people from participation in the civic arena. Groups such as the grossly misnamed “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) are a blight on the body politic, an insult to everyone who believes that citizens should be able to speak freely.
Fortunately, they can be stopped – by citizens with the courage to fight back. Show your support today – stand up to unethical attorneys and sleazy solicitors, and contribute to help provide the resources for Clear The Bench Colorado to prevail against what are ultimately attacks on YOUR freedom. Also, since sweet success is the best revenge – spread the word about why the four (er, three remaining) incumbent justices of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, and soon to be minus Chief Justice Mary Mullarkey) deserve a “NO” vote in November (and why CEW has been sicced on Clear The Bench Colorado to cover for special interests who benefit from keeping them on the bench). Remember, they 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 from against eminent domain abuse, your right to fair representation in government, 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 retaining these unjust justices on the bench for another 10-year term!
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 on 850 KOA’s Mike Rosen show (host: Tom Tancredo), noon 13 August (Thurs)
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 debuts on Television – watch Director Matt Arnold on “Independent Thinking” with Jon Caldara
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…
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!
Special Report re-broadcast: Clear The Bench Colorado Director Matt Arnold reprise on Backbone Radio 7PM Sunday 19 July
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!
Friday Funnies – “inspirational” life story no basis for confirming Sotomayor (or anyone) to lifetime Supreme Court appointment
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 appearing on “Under The Dome” special report Thursday 16 July at 7PM
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!