“No man’s life, liberty, or property is safe while the legislature is in session.” — Mark Twain (1866)

The opening of the 2010 Colorado legislative session today has renewed the danger to the liberty and property of Colorado citizens still reeling from the effects of last year’s legislative session - which saw the unconstitutional elimination of general fund spending limits, voters blindsided by the Colorado Supreme Court’s upholding an increase in property taxes (the so-called “Mill Levy Tax Freeze“) and (last not least) the proliferation of tax hikes masquerading as ”fees” (most prominently the FASTER car tax - er, “registration fee” - increase) - ALL courtesy of holes ripped in the Colorado Constitution by recent rulings of the Mullarkey Majority on the Colorado Supreme Court.

Despite all of these unconstitutional “revenue-enhancing” measures, the Colorado Legislature is still dealing with a $600 Million shortfall in the current year’s (2009-2010) budget, and is facing a projected shortfall of over $1B for next year (2010-2011).

Clear The Bench Colorado has been spreading the “good news” for several months that, thanks to the tattered shreds of the Taxpayer’s Bill of Rights (TABOR) that remain intact, the Colorado Legislature is unlikely to propose any new taxes in the upcoming session.  The bad news, of course, is that thanks to the Mullarkey Majority on the Colorado Supreme Court, they won’t have to - they’ll just call tax increases “fees” or eliminate many of the existing tax credits or exemptions (in other words, taxes you’ve had a break from paying) stripped of constitutional protections by the same Colorado Supreme Court ruling that upheld the “Mill Levy Freeze” property tax increase.

As much as I hate to say “I told you so” -

To help balance the 2010-11 state budget, Gov. Bill Ritter has proposed that nearly $132 million in tax credits and exemptions be eliminated or suspended.

Apparently, last year’s tobacco tax increase was just the warm-up.  Among the many proposals to “balance the budget” by eliminating long-standing tax credits and exemptions are:

• Eliminating a sales-tax exemption for candy and soda-pop sales (projected revenue: $17.9M)
• Eliminating a sales-tax exemption for cartons, napkins, condiments, plasticware and other items used to serve food at restaurants (projected revenue: $2.1M)
• Eliminating the sales tax exemption on Internet purchases at online vendors with in-state affiliates ($5M)
• Suspending for three years a sales tax exemption for pesticides. ($2.9M)
• Suspending for three years a sales-tax exemption for animal vaccines, hormones, animal drugs, bull semen and other compounds used in agriculture. ($1.5M)
• Expanding taxation of computer software, including online purchases and upgrades ($15M)
• Suspending for two years a sales-tax exemption on all purchases of energy used in manufacturing ($48M)
• etc. etc.

 As if the veritable explosion of new “fees” weren’t enough, this latest laundry list of tax exemptions being put on the chopping block will nickle & dime Colorado consumers and businesses to death (perhaps I was premature in not listing the Legislature’s threat to “life” in addition to sure threats to our liberty and property).

You thought that movie theater candy & soda was expensive already?  You won’t be saving as much on those restaurant leftovers, either.  Online sales are sure to take a hit (ironically, businesses based in Colorado will be hit hardest).  You’ll be sure to be “bugged” by the higher cost of bug spray, too.  Farmers, veterinarians, and pet owners are sure to be irritated by the higher cost of taking care of animals.  Buying or upgrading software (like spamblockers and viruscheckers) will get more expensive.  Oh, and the price of ALL goods manufactured in the state will increase due to higher taxes on energy in production (on top of energy prices already going up, up, up…)

Truly, the Colorado Supreme Court IS “killing the golden goose” of Colorado’s economic prosperity.

Although your “life, liberty, and property” are only under an enhanced threat by the Legislature for less than five short months, they are endangered by the Colorado Supreme Court year-round.  2010 may end up being a “tense legislative session” - but it is also your last chance for a decade to render your verdict by voting “NO” on 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, instead of suffering rule by activist, agenda-driven “justices.”  Please help to support the Clear The Bench Colorado movement to restore accountability to the judiciary and bring back balance to the bench with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices in November 2010!

‘Cry Havoc’, and let slip the Dogs of War! that this foul deed shall smell above the earth…  (Shakespeare, “Julius Caesar”)

OK, we’re not quite talking about the Shakespearean dogs of war - but enemies of your constitutionally guaranteed right to vote on tax increases have been urging the pack of unjust justices that make up the Mullarkey Majority on the Colorado Supreme Court  “Sic ‘em!” on the Taxpayer Bill of Rights (TABOR) for quite some time - and their “foul deeds” certainly do “smell above the earth…”

The latest example of using the courts to take away your rights (instead of defending them) comes to us courtesy of an article (TABOR opponents use courts to defang amendment) in the Durango Herald earlier this week.  The article describes the oh-so-clever attempt by a Colorado trial lawyer to bypass or eliminate your merely “‘procedural’ rights to vote on tax increases” by using a court order to overrule the legislature and the citizens of our state.  If he wins,

“the Legislature would be under a court order to boost school funding. It would have to ask voters for a tax increase, because schools already eat up almost half the state’s tax revenue. If voters don’t approve, the court might have to give the Legislature the power to overrule the voters. That effectively would mean the end of TABOR.”

“Lots of people anticipate that, eventually, we may see this particular scenario,” the lawyer said.

The Colorado Supreme Court’s Mullarkey Majority has already laid the groundwork for this power grab by the courts in a ruling last October (Lobato v. State of Colorado) allowing the lawsuit to go forward, overturning lower courts that had held (correctly) that school funding decisions are a matter of policy - not law - and are therefore the job of elected legislators - not appointed judges - to decide.

Past Supreme Court decisions give him reason to be optimistic. Time and again, the court has limited the effects of TABOR.

In fact, over the past two decades since TABOR’s adoption, the Mullarkey Court has been relentlessly hostile to the Taxpayer’s Bill of Rights - ruling on every opportunity against TABOR (over 13 major cases - and counting) despite the clear language of the law directing that “Its preferred interpretation shall reasonably restrain most the growth of government.”

Most notoriously, the Mullarkey Majority on the Colorado Supreme Court blindsided voters by upholding the blatantly unconstitutional “Mill Levy Tax Freeze” (in reality, an escalating property tax increase) in the Mesa County Board of County Commissioners vs. State of Colorado case in March 2009, and also created a constitutional loophole allowing taxes to masquerade as “fees” (bypassing the voter approval requirement) in the “November Surprise” ruling in 2008 (enabling, among many other new ”fees“, the enormously regressive, unpopular, and painful FASTER Colorado Car Tax increase).

The court narrowly defined “tax-policy change” in the Mesa case, which opened the door for Gov. Bill Ritter to ask for several tax-break repeals this year, including a sales tax on candy and soda.

The mania for new “fees” to extract every last nickel and dime from Colorado citizens has become so pronounced that it’s difficult to even satirize - the reality is often more ridiculous.  Give us a break - “balancing the budget” with extra taxes on candy and soda?

Unfortunately, this relentless assault on our wallets - and our rights - is no laughing matter.  We have witnessed an accelerating erosion of our constitutional protections under the Mullarkey Court - left unchecked, it will only get worse.  MUCH worse.

“The ultimate goal is to figure out how to get rid of TABOR without a vote of the people,” said Sen. Greg Brophy, R-Wray, at a pro-TABOR meeting at the Capitol.

“TABOR… is the only line of defense between working families’ wallets and a massive increase in government spending…  Allowing citizens to vote on how much government they want and how much they are willing to pay for it” is the core of TABOR, without which those in government - such as the unjust justices of the Mullarkey Majority - would recognize NO LIMITS on their power and authority to take whatever they want, in pursuit of whatever goals they want; with YOUR money.

Don’t let the Mullarkey Majority take another bite out of your rights - put some teeth into your self-defense by exercising YOUR right to vote “NO” on 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, instead of suffering rule by 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 2010!

Mark Hillman’s Capitol Review blog/newsletter today joins the rising chorus of commentators speaking out against the Mullarkey Majority’s most recent blatantly unconstitutional ruling - and piling-on power grab - in Lobato v. State of Colorado last Monday.

In an audacious power grab, the Colorado Supreme Court recently embraced, by a 4-3 decision, a judicial doctrine that would relegate the other two branches of government - and the voters - to a perfunctory role.

The high court’s activist majority used Lobato vs. State not only to intrude on the legislature’s constitutional authority to determine funding for public schools; it also self-servingly suggested that no policy decision is off-limits to judicial review. [emphasis added]

So much for separation of powers, consent of the governed, or checks and balances.  In fact, the Lobato ruling leads to the obvious question:  “What’s left to check or balance the court?”

Indeed.  As oft noted previously in this space, the Mullarkey Majority recognizes no constitutional constraints, no limits to its untrammeled authority, no checks or balances to its power - in their view, the law means “just what I choose it to mean - neither more nor less.”  This “Through the Looking Glass” worldview has precious little in common with the justice’s sworn duty to uphold the rule of law - and support (not dismantle) the Constitution.

Hillman continues: “the supreme court’s majority selectively quoted and distorted the law and its own precedent.  Even more significantly, the majority argued that courts can render judgments even when the law is silent, provides no quantifiable standard or confers specific authority to another branch of government.”

The Mullarkey Majority’s specious arguments and semantic shenanigans are belied by the clear wording and explicit direction of the Constitution itself, as noted in the dissenting opinion, which “argues that, when the constitution says “the general assembly shall . . . provide for . . . a thorough and uniform system of free public schools,” authority is clearly conferred upon the legislature and not the courts.”

 Hillman closes with a summary of what makes a good judge - as contrasted with the unjust justices of the Mullarkey Court - and notes the remedy available to “We The People” as citizens of Colorado:

That’s the important distinction between originalist judges - who believe their job is to apply the laws as written and to seek guidance from those who authored them - and activist judges - who believe their job is to twist the law to suit their own political agenda and to consult unelected, unaccountable academics for inspiration.

Ironically Bender, Mullarkey and Martinez stand for retention in November 2010.  Perhaps then voters will exercise their own “checks and balances.”

Be a part of the “checks and balances” envisioned in our constitutional form of government. 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!