Last week’s Colorado Supreme Court ruling in the Volunteers of America v. Gardenswartz case created a windfall win for personal injury trial lawyers (the “ambulance-chaser” set) and incidentally, some of the clients they represent, in collecting damage reimbursements above and beyond amounts actually paid.

The Colorado Supreme Court’s “Mullarkey Majority” (yes, Chief Justice Mary Mullarkey wrote the opinion, in what may be her last parting shot at the Colorado Constitution and the rule of law) in a 4-3 decision (joined by usual suspects Michael Bender, Greg Hobbs and Alex Martinez forming the hard core of the “make it up as we go along” crowd) overturned both a lower court and clear statutory language (13-21-111.6. Civil actions - reduction of damages for payment from collateral source) limiting double-dipping damage recovery.

In plain language, the court ruled that plaintiffs (and their lawyers, who typically collect about a third or more of the total “recovered damages”) are entitled to the amount of medical costs originally billed, even if subsequent bargaining or other arrangements reduces the amount actually paid.

As commented in former State Treasurer Mark Hillman’s blog article (”Phantom damages defy law, common sense“), which was also published in today’s Denver Post (as “Damages ruling illogical“):

As Justice Nancy Rice noted in her dissent, the majority fortified its opinion by selectively misquoting a key co-sponsor of the bill, Sen. Al Mieklejohn, who argued, “I don’t think a person ought to collect more than once . . . for hospital costs and things like that.”

Mieklejohn argued that the victim’s insurer should “be allowed to collect” from the at-fault party “to get their money back.”  That is, the insurer should be allowed to recover the costs it actually paid.  Nowhere did the legislature suggest that the victim had a legitimate claim to a greater amount simply by virtue of buying insurance.

The dissenters, also including justices Allison Eid and Nathan Coats, noted that the majority’s opinion is contrary to “the legislature’s clear intent, the statute’s plain language and sound public policy.”

Why should you care?

Those of us with respect for the rule of law as a matter of principle are outraged at yet another blatant example of judicial “legislating from the bench” in overturning clear statutory language to achieve a desired outcome.

Those of us who believe in a truly independent judiciary free from conflict of interest and potential quid pro quo corruption are concerned that this ruling, by handing over a windfall to the trial lawyers who supported the incumbent judicial majority in retaining office (violating Colorado campaign finance law in the process), further undermines confidence in the courts and the rule of law in our state by raising a perception of potential legal-judicial collusion and quid pro quo corruption).

ALL of us who might receive medical care at some point in our lives (particularly those of us who actually bother to pay for medical insurance) should be concerned about the ruling’s impact on insurance costs (they’ll be going up) and enhanced potential for abusive lawsuits (they’ll increase).

Colorado’s out-of-control state supreme court continues to cost our populace millions (from upholding unconstitutional tax increases, re-defining other tax increases as “fees”, abuse of property rights, and now one more example of civil tort abuse run amok).

Unfortunately, Colorado voters failed to take advantage of their once-in-a-decade opportunity to hold these particular ‘unjust justices’ accountable for the actions - but the fight to reform Colorado’s corrupt legal/judicial complex continues.  Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both of those endeavors, we would appreciate 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.

Cross-posted from the Peoples Press Collective and Mount Virtus websites, from commentator Big Ben (big, but “not as big as Rasmussen“) DeGrow:

“Despite all the hoopla (much of it well-deserved) about the election results, let’s not lose focus on an easily overlooked issue that should factor into some of our important decisions for 2010 — namely, the Colorado Supreme Court delving into political questions of how our schools are funded in Lobato v State.

You now can listen to my recent 8-minute interview on this very topic with Brad Jones on Face The State Weekend edition.

Whether or not you get to listen, let me explain — no, let me sum up: The case for Clear The Bench Colorado is now overwhelming.”

Overwhelming, indeed.  The Independence Institute’s expert analyst on Education Policy (and frequent online commentator)  Ben DeGrow is part of the rising chorus of commentators (Mike Rosen’s Denver Post column Thursday, Mark Hillman’s excellent article Wednesday, and Vince Carroll’s superb commentary Sunday, to name just the most prominent recent examples) speaking out against the Mullarkey Majority’s most recent blatantly unconstitutional ruling - and piling-on power grab - in Lobato v. State of Colorado.  Ben’s radio piece supplements his first big broadside against the dangerous Lobato ruling and his Taking on the Colorado Supreme Court blog post,  following the very-next-day analysis and commentary of the ruling posted right here on Clear The Bench Colorado.

Inform yourself about this outrageous Colorado Supreme Court ruling - in print,  on-air, and online - Exercise your rights (while you still have them) - hold the unjust justices of the Mullarkey Majority accountable to the Colorado Constitution and the rule of law.  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 have policy decided by elected, accountable legislators (not unelected judges); 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 these unjust justices in 2010!

An alert reader (hat tip to Live Free Colorado) brought the Colorado Springs Gazette editorial criticizing the tax and “fee” ‘bait and switch’ tactics employed by the current administration - thanks to the Mullarkey Majority’s unconstitutional ruling last November - to my attention this morning.

The Taxpayer’s Bill of Rights clearly says that voters have to approve any new tax in Colorado. Many jurisdictions, including the state and Colorado Springs, have danced around this requirement by instituting fees to cover costs that should rightly be funded with taxes. This allows those governments to get what they want - and in all fairness sometimes what they need to serve the public - without the bother of asking permission. The Colorado Supreme Court has been complicit in allowing this, ruling many times that these fees aren’t really stealth taxes. That fact has unfortunately emboldened new abuses of fees, and the latest example is Gov. Bill Ritter’s August raid of the state’s fee-funded tire cleanup fund to help balance the budget.

The Gazette editorial is yet another example of what seems to be a groundswell of opinion critical of the Mullarkey Majority’s outrageous rulings - brought to the forefront by last week’s ruling usurping the power of the legislature to make policy on school funding that kicked off a virtual storm of commentary by some of the most prominent observers of political events in Colorado. (Mike Rosen’s Denver Post column Thursday, Mark Hillman’s excellent article Wednesday, Vince Carroll’s superb commentary Sunday, and - not least -  Independence Institute’s expert analyst on Education Policy (and frequent online commentator)  Ben DeGrow (who’s big - but “not as big as Rasmussen”) Taking on the Colorado Supreme Court last Sunday, too).

The Gazette editorial correctly calls Governor Ritter to account for resorting to ”the ol’ bait and switch” - moving funds collected by fees for a specific purpose (in this case, the tire waste fund) - into the general fund in order to “balance the budget”:

Any time a fee is imposed by government, the legislation setting up the fee provides for how the money is to be spent. A fee should address a specific issue to be addressed with that revenue. The tire waste fund comes from a $1.50 fee the state charges when you buy a new tire and leave the old one at the dealer. It is supposed to be used to subsidize tire recycling efforts in the state. The subsidy is needed because, according to a recent Denver Post report, the demand for recycled tires isn’t high enough to make recycling profitable, and Colorado has the largest stockpile of old tires in the nation. Ritter’s actions exacerbate the problem. Worse, though, his raid on the waste tire fund created what is essentially a new tax on tires.

The Colorado high court disagrees, saying, in essence, that as long as revenue from a fee goes into the fund for which it was intended, it’s still a fee, regardless of what it’s spent on. Additionally, the court says that because the revenue is already in the state coffers, it’s not new revenue if it is moved to the General Fund. Using the court’s rationale, the Legislature could charge a fee to, say, offset damage to state roads from large pickup trucks and SUVs. It could then raid that fund to pay for capital improvements or maintenance to public school buildings.

Any way you slice it, that’s underhanded and a breach of the public trust.

 The Mullarkey Majority’s semantic shenanigans - playing fast and loose with the letter of the law, the very Constitution they are sworn to support and uphold - have aided and abetted numerous underhanded, unconstitutional legislative sleights of hand and breaches of the public trust.

DON’T LET THEM GET AWAY WITH IT!  Exercise your rights (while you still have them) - hold the unjust justices of the Mullarkey Majority accountable to the Colorado Constitution and the rule of law.  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 have policy decided by elected, accountable legislators (not unelected judges); 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 these unjust justices in 2010!

“A sense that the Colorado Supreme Court is growing out of control continues to pick up momentum after the October 19 Lobato v State ruling (PDF), in which the 4-3 liberal majority arrogated to itself the power to determine school funding policy.”

The Independence Institute’s expert analyst on Education Policy (and frequent online commentator)  Ben DeGrow is part of the rising chorus of commentators (Mike Rosen’s Denver Post column Thursday, Mark Hillman’s excellent article Wednesday, and Vince Carroll’s superb commentary Sunday, to name just the most prominent recent examples) 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.  Ben claims to have offered the first big broadside against the dangerous Lobato ruling in his Taking on the Colorado Supreme Court blog post today, but in reality only ties Vince Carroll for 2nd (both piece published Sunday) following the very-next-day analysis and commentary of the ruling posted right here on Clear The Bench Colorado.

Despite only coming in second (sorry, Ben) past the gate, Ben’s article in the Colorado Daily is well worth reading not only for the analysis of the Mullarkey Majority’s flawed Lobato v. Colorado ruling but also for Ben’s insights into how this ruling will negatively impact Colorado’s schools and end up hurting - not helping - Colorado’s school-age children.

Ben will also will be talking about the Lobato case and school funding adequacy on Face The State weekend radio with Brad Jones. In the Denver area, that’s AM 710 KNUS on Saturday at 5:00 AM and Sunday at noon. Check local listings for additional stations and times.

Inform yourself about this outrageous Colorado Supreme Court ruling - in print,  on-air, and online - Exercise your rights (while you still have them) - hold the unjust justices of the Mullarkey Majority accountable to the Colorado Constitution and the rule of law.  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 have policy decided by elected, accountable legislators (not unelected judges); 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 these unjust justices in 2010!

“The liberal majority on the Colorado Supreme Court has taken judicial chutzpah to a new level.”

Mike Rosen’s column in today’s Denver Post joins the rising chorus of commentators (Mark Hillman’s excellent article Wednesday, and Vince Carroll’s superb commentary Sunday, to name just the most prominent recent examples) 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.

As Rosen notes, “the level of education spending is inherently a budgeting and political question that must be considered in the context of competing demands from other essential services for finite revenues” - a question properly (and constitutionally) the domain of our elected (and accountable) legislators.

“Uh-uh, said the liberal Supremes, trumping the lower courts, we’re going to arrogate this power to the judiciary. Since simply spending more money on public schools doesn’t necessarily produce better results, this ruling implicitly gives courts the authority to also dictate what is taught and how.” (emphasis added)

This latest ruling is only the most recent example of the out-of-control Mullarkey Court’s grab for power - claiming the authority to be the ultimate arbiter of ALL political issues in Colorado, authority it does not have under the Colorado Constitution and the rule of law.

As Rosen points out, “the appointed members of the court… exploit unchecked power. Chief Justice Mary Mullarkey, the liberal-in-chief, has been there for 22 years.”

Blatant partisanship and arrogant judicial activism - advancing a political agenda by making law, not simply upholding it - is nothing new to the court’s liberals. In the past they’ve co-opted the legislature by imposing a Democrat-contrived redistricting plan on the state, and overrode TABOR when they conveniently declared Gov. Bill Ritter’s property tax increase a “freeze.”

Fortunately, there’s a remedy in Colorado for runaway judges like these. Unlike U.S. Supreme Court justices, Colorado jurists aren’t appointed for life.

Periodically, they must stand for a retention vote by the citizens. As benevolent coincidence has it, three of the four liberal activists who conspired in this ruling are up for retention in 2010: the aforementioned Chief Justice Mary Mullarkey along with Justices Alex Martinez and Michael Bender. (The fourth, Justice Gregory Hobbs, was retained in the last election for another 10-year term. Sorry.)

Rosen concludes: “Retention elections are usually a perfunctory formality. Judges are rarely voted off the bench. Perhaps this was the last straw, an opportunity to deliver a message to these and other would-be judicial activists.”

We are witnessing a slow-motion coup d’etat in Colorado by the Mullarkey Majority of the Colorado Supreme Court.  In disregarding the proper judicial obligation to uphold the law (NOT to make policy), the Mullarkey Court, unrestrained, is seizing more and more power. When these unjust justices rule from the bench, they really RULE from the bench…

The 2010 Supreme Court retention elections must not be - cannot be - a mere “perfunctory formality.”  Exercise your rights (while you still have them) - hold the unjust justices of the Mullarkey Majority accountable to the Colorado Constitution and the rule of law.  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 have policy decided by elected, accountable legislators (not unelected judges); 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 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!

If Democrats in the 2007 General Assembly were devious for passing Gov. Ritter’s infamous property tax hike without voter approval, the current crop plunges to new depths.

In an act of sheer arrogance, this year’s Democrat majority poked taxpayers in the eye just for spite.

Recall that the aforementioned property tax hike increases the burden on local property owners while reducing the state’s obligation to fund K-12 education.

Recall also that Colorado’s constitution says that no “tax policy change directly causing a net revenue gain” can be enacted without a vote of the people and that this policy change increased property tax revenues by $117 million in the first year alone.

Finally, recall that crafty Democrats hinged permission for their tax hike on 174 separate, previous votes by taxpayers in all but four of the state’s 178 school districts.  Never mind that those voters were repeatedly assured by school and state officials that their taxes would not increase as a result.

Not satisfied that the Colorado Supreme Court slipped this nonsense through a previously undiscovered loophole in the state constitution, Democrats added arrogance to insult by swiftly passing a bill to now prevent any of those 174 school districts from reconsidering.

That’s arrogance, plain and simple.

…

However, Colorado Democrats have already proven that they will ignore the constitution when it’s inconvenient and that the state supreme court can be counted on to back them up.

 (Cross-Posted by permission of the original author, Mark Hillman.  For the remainder of the article, please click here).

By Mark Hillman, April 3 2009

Seventeen years ago, Colorado voters frustrated by the excesses of an unresponsive government passed the Taxpayers Bill of Rights (TABOR), a constitutional amendment designed to limit government spending and give voters to final word on tax hikes.

Initially, government officials largely adhered to TABOR’s strictures, ever mindful that the voters had spoken and expected those they elected to play by the rules.

Last month’s Orwellian decision by the Colorado Supreme Court signaled that no longer will the executive, legislative nor judicial branches of state government - all dominated by liberals - abide by a constitutional amendment that crimps their big-spender style.

Governing powers wager than most voters have forgotten why TABOR passed, much less what it was intended to do. That’s a dangerous gamble because TABOR’s primary tenets - subjecting tax increases to a public vote and limiting government spending - still elicit strong public support.

Last year, a constitutional amendment that would have rolled back the requirement that surplus tax revenues be refunded to taxpayers lost 55% to 45%, despite a $2.5 million campaign and only token opposition.

Instead of living within TABOR’s easily-defined guardrails, Democrats have adopted a strategy of making it irrelevant through subversive interpretations and raising unprecedented revenue through “fees” - indistinguishable from taxes to anyone but a lawyer.

Last year, Gov. Bill Ritter first proposed a $100 increase in the annual vehicle registration fee - distinguished from the registration tax only by the quarter-inch that separates the two on your car’s registration papers.

When KOA radio’s Mike Rosen suggested that Ritter was merely side-stepping TABOR because it didn’t apply to fees, the governor explained that this $500 million measure was legitimately a fee because “there really is a direct relationship between highway usage and infrastructure.”

He didn’t bother to explain how that was different from the fuel tax, since there is obviously a “direct relationship” between gasoline and transportation.

This year, Democrat legislators gave Ritter a $250 million vehicle fee increase. Can a fuel “fee” increase be far behind?

Ritter and his Democrat spending machine have also devised a new fee on hospitals, calculated to raise $600 million a year, while claiming to do so without raising costs on consumers. Magically, hospitals and state government rake in more money, but conveniently nobody pays more.  Right.

Which brings us to the courts, unelected because the justices are expected to apply the law regardless of whether doing so is convenient or popular.

When the courts ruled that no “tax policy change” occurred even though Ritter and the legislature amended state law - what is law if not “policy”? - to force school districts to raise more property tax revenues, liberals were emboldened to short-circuit another TABOR provision that puts voters in charge.

The “weakening” clause reserves to voters the ability to ease existing limits on revenue, spending or debt. But Democrats, taking another page from Orwell, declared that the state’s general fund spending limit - that’s what state law calls it - is not a limit but “an allocation strategy.”

“TABOR is silent on allocation strategies,” declares Democrat Sen. John Morse, endorsing yet another slap in the face to taxpayers.

It’s difficult to imagine why Democrats lawmakers would present voters with an outright tax increase ever again, so long as they can find legal lapdogs who will apply weasel words to change tax increases and spending limits into something else.

What tax issues, then, will voters be asked to consider? Mostly local government taxes or state matters in which the legislature or a special interest thinks it can fund a warm-fuzzy government program by taxing an unpopular target.

TABOR’s most significant remaining limit, a cap on total state spending, was modified and temporarily suspended by Referendum C. Under those terms it returns in 2011, whereupon the cult of big government will undoubtedly devise a scheme to render it meaningless, too.

Won’t it be ironic if, by inventing so many loopholes through which taxpayers can be soaked, overreaching Democrats sew the seeds of the next taxpayer revolt?

The author can be reached at mh80807@yahoo.com

(Cross-posted by permission of the author, Mark Hillman)