The recent nomination of Sonia Sotomayor to succeed retiring justice David Souter on the United States Supreme Court has generated increased scrutiny on the power of the judiciary to endorse and validate government seizures of private property.  Joining the notorious 2005 Kelo vs. New London case at the Federal level, and the outrageous Telluride Land Grab case decided a year ago yesterday (2 June 2008) here in Colorado, is a lesser-known ruling by Judge Sotomayor in 2006 (Didden v. Village of Port Chester).

A recent article by distinguished law professor Richard Epstein of the University of Chicago characterized Sotomayor’s ruling in this case as an even worse attack on property rights (and individual protections) than Kelo:

The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The “or else” was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow.

So Sotomayor and the Second Circuit essentially endorsed a thuggish extortion racket “pay-to-play” move by a small-time tinpot dictator controlling a local redevelopment district.  Having spent some time overseas, this sounds more like the kind of 3rd World corruption you’d find in some of the worst-governed corners of the globe, not the United States of America.  Or is that the new standard on the East Coast?  “Back to the Future” of Boss Tweed and machine-style politics?

As Epstein notes, “American business should shudder in its boots” - to say nothing of individuals owning homes (Kelo) or other property (Telluride) over which government casts a covetous eye.  When outright theft is justified in the name of law - who can respect the law?  We MUST restore accountability to our judiciary - and restore the rule of law - before it’s too late.

In Colorado, we have that opportunity - vote “NO” on retaining the unjust justices who perpetrated the Telluride Land Grab when they must face the voters in 2010.

For those unable to attend - a recap of Clear The Bench Colorado Director Matt Arnold’s speech at the Lincoln Club luncheon, 29 April 2009. 

[Note that this is not a transcript - some differences in text vs. speech may have occurred]

Typically, when people discuss politics, they think of legislators - Federal and State, House and Senate - or executives, such as the president, governor, county commissioners or city mayors.

But in our system of government, there is a 3^rd branch that is equally important: the judiciary.

In Colorado, our judges are not elected - and many have come to believe that they are also unaccountable.  They are not.  Every ten years, even our Supreme Court justices must face voters and receive their approval in order to stay in office.  In 2010, FOUR  of them - Chief Justice Mary Mullarkey, along with justices Michael Bender, Alex Martinez, and Nancy Rice - need your approval in order to stay in office and continue taking away your rights.  DON’T GIVE IT TO THEM!

This Supreme Court recognizes no limits on its power.  THIS majority has arrogated to itself the ultimate power to decide all questions - legislative, executive, or judicial.  For them, THEIR WORD IS LAW - according to them, the Constitution is what THEY say it is.  They do not recognize a standard, or limit.

 If that is truly the case - Why do we need a Constitution at all?

Recent Colorado Supreme Court Rulings - Against the Constitution:

A.      Mill Levy Tax Freeze case (16 March 2009)

WHAT’S IN YOUR WALLET?  The sticky fingers of the legislature - aided and abetted by the Colorado Supreme Court.

The majority’s ruling upholding the Mill Levy Tax Freeze ignored the clear letter of the law, ignored and violated TABOR, and violated the rights of the people of Colorado (entitled to a vote on “tax policy changes… resulting in a net revenue gain“).  The majority justices just made up the rationale for their ruling as they went along.  The impact?

- $117 Million in additional taxes levied on the people of Colorado - and counting.

- Deprived people of the right - guaranteed in the Constitution - to have a say on tax increases.

- Made local school board LIARS after the fact - after they had campaigned on the promise that “de-brucing” would NOT result in an increase in taxes.  This was a Colorado Supreme Court-imposed breach of faith between local government and the people they represent.

Additional impacts of this case are still developing.  Literally hours after the Office of Legislative Legal Services informed the Joint Budget Committee that the ruling also opened the door to eliminating long-standing tax credits and exemptions previously sheltered by TABOR (the now-notorious “April Fool’s Briefing“), Rep. Mark Ferrandino proposed  a new tax - now en route to becoming law.

A few excerpts from Justice Eid’s scathing dissent help to illustrate just how far the majority had to stretch (or outright redefine) clear constitutional language in order to reach their verdict:

“The majority’s rationale for its decision - namely, that SB 07-199 is simply not covered by Article X, Section 20 - is, in my opinion, utterly unconvincing…  it is undisputed in this case that, prior to SB 07-199, state law prevented local school districts from keeping the $117 million in excess revenues that they had collected after conducting waiver elections.  It is similarly undisputed that SB 07-199 removed that provision of state law…  SB 07-199 is thus a ‘tax policy change directly causing a net tax revenue gain to any district’ under the plain language of Article X, Section 20 and requires a vote of the people.”

Even Colorado State Treasurer Cary Kennedy “acknowledged that SB 07-199 was a state tax policy change.”

Eid notes: “Subsection (4)(a) - in plain, straightforward, and unambiguous language - requires ‘voter approval in advance’ for such a “tax policy change.”

So how did the majority reach the opposite conclusion?  Simple - by redefining the language.  This semantic skullduggery goes beyond even a Clintonesque ”depending on what the definition of ‘is’ is…”  calling the Mill Levy Tax Freeze a “reflect[ion]” of local school district elections, a “recogni[tion] of those elections,” an “implement[ation] of those elections, a “stabiliz[ation] of mill levies,” a “legislative direct[ion] concerning use of those funds…”  “Whatever label is affixed, the result is the same: SB 07-199 enacted a change in state tax policy, and therefore voter approval was required.”

“The purpose of Article X, Section 20 “is to require that the voters decide for themselves the necessity for the imposition of new tax burdens.  … Today the majority deprives the voters of this opportunity regarding SB 07-199.  I therefore respectfully dissent.“

B.      “Telluride Land Grab” case (2 June 2008)

This case upheld the exercise of eminent domain by the town of Telluride over property OUTSIDE the town limits - and thus, one  would think, outside the jurisdiction of the town.  However, the majority on the Colorado Supreme Court ruled that, because Telluride is a “home rule municipality” that limits - including those imposed by law by the state legislature - simply don’t apply.  The upshot of the ruling is that ANY home rule entity (municipality) can exercise eminent domain ANYWHERE in the state (NOT bounded by geography).

Also, the ruling denied the role of the legislature in prohibiting or limiting extraterritorial condemnations - thus further disenfranchising the people.  Again, the court took over the function of the legislature, and undermined the rule of law and government accountability to the people.

The ruling majority on the Colorado Supreme Court eliminated standards and guidelines - then declared that because of the lack of standards, the decision rests solely at the discretion of the reigning majority of the Colorado Supreme Court.

THIS is our Kelo case - if you’re a property owner, be afraid… be very afraid.

C.      Salazar vs. Davidson - Congressional Reapportionment Case (1 December 2003)

Another infamous ruling by the Colorado Supreme Court - delivered by Chief Justice Mullarkey, with Justices Bender, Martinez, and Rice concurring, Justice Coats and then-Justice Kourlis dissenting - created the odd 2/3-donut-shaped 7th Congressional District as a gift to current Rep. Ed Perlmutter (who waited two terms to claim it).

The key issues with the resdistricting decision were not so much the creatively invented criteria (”competitiveness”) or odd shape of the resulting district, but the rationale for the decision (indeed, the rationale for the Colorado Supreme Court even participating in the decision).  The critical issue was the fact that the Colorado Supreme Court majority arrogated to itself the powers and privileges of the legislative branch - declaring that “we are part of the general assembly” for the purpose of redistricting.

“Three words in the state constitution grant the General Assembly exclusive power to draw Colorado’s congressional districts: “General Assembly shall.”

However, the ruling majority declared: “The term ‘General Assembly’ encompasses the entire legislative process, as well as voter initiatives and redistricting by court order.”

“In sum, the term ‘General Assembly’ in the first sentence of Article V, Section 44, broadly encompasses the legislative process, the voter initiative, and judicial redistricting.  Regardless of which body creates the congressional districts, these districts are equally valid.”

The circularity of the logic - ’judicial redistricting is part of the definition of General Assembly, therefore we are justified in declaring ourselves part of the General Assembly for the purpose of conducting judicial redistricting’ - along with the breadth of seizure of power (essentially declaring that for redistricting purposes, ‘we are the government’), is simply breathtaking.   When these judges rule from the bench, they really rule from the bench.

As Justice Kourlis noted in her dissent:  “With its holding today, the court significantly alters our form of government.”

Unlike Dave Barry, they really are making this up as they go along.

In conclusion:

Inform yourselves, and help to inform others, about the unconstitutional rulings of this Colorado Supreme Court majority.

Visit Clear The Bench Colorado frequently - we are a resource not only of information on these rulings (our Reference Library is growing broader and deeper each week) but also on related legislation, events, and developments.  Also, we provide an opportunity for citizens and legal professionals to Sound Off! on issues, events, and rulings and contribute personal experiences, insight, or knowledge.

Finally, please help support the cause with your financial contributions - freedom isn’t free.

Thank you.