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.

The resurgence of “We The People” in the form of local citizens banding together in grassroots civic action organizations to defend our constitutional rights is THE continuing political story of the year 2010 in America and is profoundly affecting Colorado Politics in this year and beyond…

Clear The Bench Colorado Director Matt Arnold is both proud and humbled to have been invited as a guest speaker to several such groups over the last several months - beginning with the massive (7000+) crowd at the Tax Day Tea Party rally at the Denver Capitol and continuing through several events throughout the Spring (examples here, and here), Summer (examples here, here, and here) and Fall (examples here, here, here, here, and here) and Winter (here, and here) of 2009 - and now coming back for more in 2010!

The Grassroots Revival continues.  Clear The Bench Colorado Director Matt Arnold is speaking this morning (Thursday) at the Concerned Women for Principled Politics meeting at the Koelbel Library in Centennial (Orchard & Holly) starting at 9:30AM.

Join Clear The Bench Colorado and the Grassroots Revival in restoring “power to the people” - get active, get involved, raise your voice and help to restore accountability to the Colorado judiciary by exercising YOUR RIGHT to vote “NO” on the four unjust justices of the Colorado Supreme Court’s Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and - last but not least - 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.”  Support Clear The Bench Colorado with your voice (Sound Off!), your contributions, and your “NO” vote to remove these unjust justices on election day this November!

Celebrating the one-year anniversary of the notorious “April Fool’s” brief to the Legislature’s Joint Budget Committee that opened the door to a flood of new taxes (er, “eliminating tax exemptions“) without the constitutionally-required prior approval by a vote of the people.

Yes, the joke was on you - and the punchline was repeated twelve times at the start of this year’s legislative session with the “Dirty Dozen” tax increase bills (er, “closing corporate loopholes”) on everything from candy & soda, pesticides & animal drugs, energy production, software downloads, online sales/purchases, and even doggy bags…

… ALL courtesy of a blatantly anti-constitutional ruling in the “Mill Levy Tax Freeze” case by the “Mullarkey Majority” on the Colorado Supreme Court.

So come on out, have a great time, and help support Clear The Bench Colorado as we lead the fight to keep Colorado’s ‘unjust justices’ from getting another 10-year term.

Don’t get fooled again - exercise your right to vote “NO” on the four Colorado Supreme Court ‘unjust 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 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 for another 10-year term!

For most of the past year, Clear The Bench Colorado has been predicting that the Colorado legislature would not be proposing any new tax increases in this year’s legislative session - at least, not in name.  Good news, right?  Of course, the bad news punchline is that, thanks to the Colorado Supreme Court’s Mullarkey Majority rulings on the “Mill Levy Tax Freeze” case and the “Fees are not Taxes” case - they won’t have to; they’ll just call it a “freeze”, a “fee”, or the “elimination of an existing tax credit or tax exemption.”

Until today, these predictions have been borne out; although the legislature has already come up with numerous “revenue-generating mechanisms” this year to avoid that pesky TABOR requirement to seek voter approval before taking your money (such as, most prominently, the notorious “Dirty Dozen” tax increase - er, elimination of tax credits or exemptions - bills which dominated the start of this year’s legislative session), the legislature had so far NOT openly proposed any new “taxes”.

This one is - wait for it - “for the children”: Proposal would raise taxes for Colorado schools

“Rep. Debbie Benefield of Arvada announced Wednesday that she would introduce a referred measure asking voters this November to amend the state constitution to give lawmakers open-ended authority to raise taxes to cover education expenses.

Currently, the Taxpayers Bill of Rights requires lawmakers to get voter approval for any proposed tax increase. Benefield’s proposal would make a permanent exception for hikes that fund schools. …

Judy Solano, Mike Merrifield and Joe Rice also stood in support.”

Well, at least they’re asking this time…  although it’s kinda like the neighborhood bully who repeatedly beats you up all week for your lunch money, then comes back on Sunday and asks you to contribute more money for his anger management and substance abuse therapy.  Sure, it’s a good cause, but…

Besides, the excuse that “it’s for the children” is wearing a bit thin.  The 2007 School Finance Act, passed through that year’s Senate Bill 199 (upheld in the notorious “Mill Levy Tax Freeze” ruling) massively increased property taxes “for the children”:

Ritter praised the court’s decision. “As you know, the Colorado Supreme Court today ruled in the state’s favor in what has become known as the ‘mill levy’ case,” he said in a prepared statement. “But the real winners today are Colorado’s children, Colorado’s families and Colorado’s schools.”

 Except that the revenues collected didn’t go towards school funding after all: TURNS OUT, MILL LEVY INCREASE ISN’T REALLY ‘FOR THE CHILDREN’

“Fast-forward several weeks, and it turns out Colorado schools won’t see an additional dime despite higher property tax collections. At least not this year. The Denver Post reported Sen. Bob Bacon, D-Fort Collins, saying the mill levy freeze saved the state about $130 million this fiscal year because the state didn’t have didn’t have to backfill school coffers in order to meet a mandated per pupil allotment.”

Well, that’s Strike One on revenue collection “for the children” - what’s the next pitch?

That would be the attempt to bypass the legislative process entirely and just sue the state in court to get increased funding for schools - ironically, using taxpayer dollars to pay for both sides.  The latest example of using the courts to take a bite out of your rights (instead of defending them) was enabled thanks to a Colorado Supreme Court ruling last October (Lobato v. State of Colorado) allowing the lawsuits 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.

However, since the lawsuits are likely to be tied up in the courts for some time, they are unlikely to succeed in bringing in any revenues “for the children” (as opposed to the copious revenues that WILL be generated in the meantime “for the lawyers”) anytime soon - so this approach is a costly “foul ball.”  Strike Two.

Next up: the “Dirty Dozen” tax increase bills - courtesy of that same “Mill Levy Tax Freeze” ruling that raised property taxes - were justified (again!) as being “for the children” (and schools, and teachers…) - as expressed both in floor debates and in (taxpayer-funded?) fundraising letters to constituents:

“Increasing taxes “means $145 million we do not have to cut from K-12 education,” the Democrat fundraising e-mail said, specifically claiming that one tax could save up to 1,700 jobs for teachers.”

However, the claim is disingenuous, at best, according to several state legislators:

“Democrats know full well that K-12 education won’t see an extra dime from these tax increases,” said Sen. Nancy Spence, R-Centennial.  ”It’s time for the Democrats to stop lying to the public about where this money will go.”

That would be - Strike Three?

Unfortunately, the batter’s still not out (yet!) - apparently, the rules get bent a bit in favor of those coming after your wallet.  Benefield may be swinging for the bleachers with her latest tax proposal - but hey, with the umpire(s) on your side, why not?

The question is, why should “We The People” wish to give “open-ended authority to raise taxes” and create a “permanent exemption” to the Taxpayers Bill of Rights [which] “requires lawmakers to get voter approval for any proposed tax increase?” Particularly when any loophole created - even if narrowly tailored to only “fund schools” or support education - will be aggressively exploited by future legislators and expanded on by the current majority on the Colorado Supreme Court.

Our Constitution has already been shredded enough in the name of legislation and court rulings “for the children” with a cynical, activist Mullarkey Court leading the way.

Although it’s almost April 1st, don’t get fooled again - exercise your right to vote “NO” on the four Colorado Supreme Court ‘unjust 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 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 for another 10-year term!

“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!