Predictably (indeed, Clear The Bench Colorado predicted both motion and grounds almost three months ago), Governor Hickenlooper and Attorney General John Suthers filed a Motion to Dismiss the anti-TABOR lawsuit (”Fenster’s Folly“) this week, noting that the lawsuit raises a ”political question” rather than a legal issue and is therefore (as the U. S. Supreme Court has previously ruled, several times) “non-justiciable” (meaning, a policy issue not to be decided by the courts).

The state’s Motion to Dismiss Plaintiffs’ Substitute Complaint echoes the same points and references raised in Clear The Bench Colorado’s review of the lawsuit when it was filed back in May of this year (”TABOR, citizen initiatives targeted by frivolous Fenster lawsuit“):

I. All the claims asserted by Plaintiffs present political questions that the U.S. Supreme Court has long held to be nonjusticiable. The Plaintiffs ask this Court to do something the Supreme Court has consistently refused to do: overthrow a state law for being too democratic.  Not only has the Court never done such a thing, it has repeatedly held that claims of this sort may not be entertained by federal courts. [Motion to Dismiss, p.5-6]

The Motion proceeds to highlight the danger of judicial activism that would inevitably result:

Beyond the “lack of judicially discoverable and manageable standards,” the claims presented here would entangle the Court in policy determinations it must avoid. [Motion at 8]

Noting further the hypocrisy of the plaintiffs’ argument that “ some direct democracy should be upheld, so long as it results in their preferred policy” [Motion at p.8] the state concludes

It would be difficult to imagine a more glaring example of “a policy determination of a kind clearly for non-judicial discretion.”  Baker, 369 U.S. at 216.

Noting the “narrow and limited authority” of judges, the Motion cites an earlier Federal court ruling:

Our entire System of Government would suffer incalculable mischief should judges attempt to interpose the judicial will above that of the [coordinate branches], even were we so bold as to assume that we can make better decisions.”) [ Pauling v. McNamara, 331 F.2d 796, 799 (D.C. Cir. 1963)]

Now where have we heard that before?

In fact, as the Motion further elucidates,

B. The Supreme Court has specifically held that claims like Plaintiffs’, based on citizen initiative power to tax, are nonjusticiable political questions [Motion at 11]

In a deliciously ironic twist, the Motion even cites the Colorado Supreme Court’s arrogation of legislative authority to the judicial branch in the Salazar v. Davidson redistricting case:

In Salazar, the court extended this rationale to include the courts.  79 P.3d at 1232-33, 1236-37.  Neither of these decisions has been disturbed.  See Colorado General Assembly v. Salazar, 541 U.S. 1093 (2004); Lance v Coffman, 549 U.S. 437 (2007) (refusing to address challenges to Salazar).  So even if Plaintiffs were correct that only a state’s “legislature” can enact laws, these cases require inclusion of the people (not to mention the judiciary) within that concept.

The remainder of the Motion addresses issues of Standing (in brief, the Plaintiffs don’t have any) to bring the case - which, while important, will most likely induce acute MEGO (”My Eyes Glaze Over”) in the typical (lay) reader and will not be recounted here.

Clear The Bench Colorado’s sole critique of the state’s Motion to Dismiss is that the state did not seek attorney’s fees from the plaintiffs under C.R.S. 13-17-101 (to offset costs to taxpayers) for filing what is clearly a ”frivolous, groundless, and vexatious” lawsuit.

Although an award of attorneys’ fees is rare (Clear The Bench Colorado won just such an award against “Colorado Ethics Watch” - CEW, pronounced “sue”, it’s what they do - one of only a few in the last decade) it can be done (although actually collecting on the judgement may take months, or years), when opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.

Such abuse of the courts for political posturing can and should be discouraged…

Additional references:
A more detailed (and highly informative) discussion of the constitutionality of the citizen initiative and referendum processes may be found in the Texas Law Review article, “A Republic, Not a Democracy?  Initiative, Referendum, and the Constitution’s Guarantee Clause” by Professor Robert G. Natelson.

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.

Surely make you lose your mind…

The Colorado Car Tax (er, “fee”) increase - ironically dubbed ‘FASTER’ - passed in the 2009 legislative session made another lap in media coverage this past week with a broadcast on the ‘Devil’s Advocate‘ television program and publication of a pair of “Issue Backgrounder” papers.

The “Issue Backgrounder” papers each address a specific aspect of the FASTER legislation, focusing in on the “Bridge Enterprise” (a ‘government-owned business’ within the Colorado Department of Transportation, or CDOT).  One paper addresses how the “Bridge Enterprise” has raised $300M in debt without (constitutionally-required) voter approval (and the long-term implications for Colorado’s fiscal stability); the other more generally addresses how the Colorado Bridge Enterprise contravenes the Colorado Constitution.

Both papers are well worth reading, and provide additional detail on just how bad even this single aspect of the FASTER Colorado Car Tax (er, “fee”) is for Colorado citizens.

However, both papers together only tell half of the story (almost literally).  The ‘Colorado Bridge Enterprise’ is only one of two new ‘government-owed businesses’ established by the FASTER legislation (the other being the ‘Colorado Transportation Enterprise’ charged with collecting and spending the ‘road safety surcharge’ tax - er, “fee”) .  Both “enterprises” are overseen by an 11-member appointed (ergo, unaccountable to the public) board (coincidentally, the same 11 people who make up the Colorado Transportation Commission).  Significantly (although unfortunately unremarked in both papers), both ‘enterprises’ are also authorized to use eminent domain to seize private property.

The television broadcast is informative and entertaining as well, but unfortunately also misses significant parts of the story.

The Colorado Car Tax - It’s Worse Than You Think

Also unremarked in both papers - and on the television broadcast as well - is the fact that FASTER actually comprises multiple tax increases (er, “fees”) in a single piece of legislation, blatantly violating the constitutional requirements to “receive voter approval in advance” for “any new tax, mill levy above that for the prior year, valuation for assessment ratio increase for a property class, or extension of an expiring tax, or a tax policy change directly causing a net tax revenue gain to any district.” (Colorado Constitution, Article X, Section 20 - the ‘Taxpayer’s Bill of Rights’).  The “bridge fund fee” and the “road safety surcharge fee” increase each year for three years (yep, that’s 3 tax increases in one!), in addition to imposing an entirely separate “fee” on car rentals as well.  Oh, and don’t forget the “late fees” too…

But all of this is necessary “to preserve our crumbling transportation infrastructure,” right?  That was the justification for passing the bill - along with claims that any and all “fees” collected “shall be used exclusively for the construction, maintenance, and supervision of the public highways of the state.”   Says so right in the legislative language (43-4-810), so it must be true, correct?

Not so much.  The dirty little secret of the FASTER bill is that many of the taxes (er, “fees”) collected don’t go towards the construction or maintenance of roads or bridges at all, but for “multi-modal and demand-side transportation solutions” - such as the desire of certain state Senators for streetcars in Denver - justified by other language in a following section (43-4-812):

43-4-812. Use of user fees for transit - legislative declaration.
(2) THE GENERAL ASSEMBLY HEREBY FINDS AND DECLARES THAT THE FUNDING OF TRANSIT-RELATED PROJECTS AUTHORIZED BY SUBSECTION (1) OF THIS SECTION CONSTITUTES MAINTENANCE AND SUPERVISION OF STATE HIGHWAYS BECAUSE IT WILL HELP TO REDUCE TRAFFIC ON STATE HIGHWAYS AND THEREBY REDUCE WEAR AND TEAR ON STATE HIGHWAYS AND BRIDGES AND INCREASE THEIR RELIABILITY, SAFETY, AND EXPECTED USEFUL LIFE.

In fact, the bill MANDATES state spending of $10 Million per year on “transit-related projects.”

It’s an outrageous semantic shell game - and a blatant violation of your constitutional rights.

To sum up: the “FASTER” car tax increase raised vehicle registration fees by $22.50-55 per vehicle, including a “road safety surcharge fee” of $16-$39 per vehicle, PLUS a “bridge fund fee” of $13-$32 per vehicle (phased in at 50%/75%/100% each of the first 3 years ).  Plus mandatory “late fees” of $25/month (capped at $100) - for all “vehicles” (including trailers barely even worth that much).

All while creating two new ‘government-owned’ bureaucracies with power to spend, borrow, & seize private property unconstrained by the Taxpayer’s Bill of Rights and not accountable to the people.

Oh, and increasing mandatory spending by over $10 Million per year on purposes other than roads, bridges, or other transportation infrastructure used by those paying the “fees.”

Most of the politicians who did this to you - including Governor Bill Ritter, Senate sponsor Dan Gibbs, and House sponsor Joe Rice - have paid the political price, either quitting office or being defeated at the ballot box; however, the real culprits, without whom none of this would have been possible (thanks to a Nov. 2008 court ruling to allow “fees” to act like taxes, in violation of your constitutional rights) escaped justice (except for Chief Justice Mary Mullarkey, who quit rather than face the voters, the remaining members of the Colorado Supreme Court who aided and abetted FASTER were retained in office for another 10-year term).

Unfortunately, these politicians in black robes remain ‘at large’ and able to continue to assault your constitutional rights for years to come.

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.

Apparently not content with killing TABOR (Colorado’s Taxpayer Bill of Rights constitutional amendment) by the thousand cuts (well, 15 and counting) of Colorado Supreme Court “interpretations” of TABOR’s viability in individual cases (most notoriously, the 2009 “Mill Levy Tax Freeze” property tax increase and the 2008 “fees don’t count as taxes” case leading to the Colorado Car Tax), TABOR’s foes have decided to swing for the bleachers by targeting the amendment’s passage via the citizen initiative process - which the lawsuit claims is an unconstitutional practice.

The lawsuit was filed in Federal court on Monday by a group predominantly composed of current and former elected officials (including both Democrats and Republicans, although all current Republican legislators and the party organization vigorously oppose the lawsuit, in defense of the Colorado Constitution and the right of citizen initiative).  The lead attorney and “mastermind” behind the lawsuit is “superlawyer” Herbert L. Fenster - who has been shopping around the idea for over a year before finding enough plaintiffs and other attorneys (including former Democrat Congressman David Skaggs and former Democrat state senator Mike Feeley) to sign to the case.  Fenster and Skaggs both work at the firm McKenna, Long & Aldridge LLP, while Feeley works at the politically connected Brownstein Hyatt Farber Schreck law firm (a powerhouse Democrat political brokerage).

However, for a “superlawyer,” Fenster’s lawsuit is based on the most tenuous of legal grounds…

Legal precedent - including two relevant Supreme Court of the United States (SCOTUS) decisions - is clear; Fenster’s lawsuit is frivolous, the “Republican form of government” language in the Constitution’s “Guarantee Clause” (United States Constitution, Article IV, Section 4 - “The United States shall guarantee to every State in this Union a Republican Form of Government“) has been repeatedly ruled non-justiciable (meaning, not subject to determination by the courts), and constitutional constraints on government are, by definition, constitutionally allowed…

The two relevant SCOTUS cases on the “Guarantee Clause” have unambiguously held the “Republican form of government” language to be non-justiciable:

In Luther v. Borden, 48 U.S. 1 (1849), the Supreme Court rejected an attempt to put the “republican character” of state government subject to judicial review, holding that “it rests with Congress to decide what government is the established one in a State … as well as its republican character.”  The court, properly exercising judicial restraint, held the “Guarantee Clause” to be a political question, not a judicial one - and therefore not subject to review by the courts (i.e. non-justiciable).

A more recent case, Pacific States Telephone and Telegraph Company v. Oregon, 223 U.S. 118 (1912) dealt specifically with a challenge to the use of citizen initiatives in states (such as Colorado’s TABOR Amendment). In that case, the Court also held that challenges to a state’s “republican character” are non-justiciable political questions:

The enforcement of the provision in § 4 of Art. IV of the Constitution that the United States shall guarantee to every State a republican form of government is of a political character, and exclusively committed to Congress, and as such is beyond the jurisdiction of the courts.

It doesn’t get more clearly stated than that.

Since even a casual review of the legal literature by a non-attorney can turn up the clear and definitive legal precedent that leaves the lawsuit devoid of justification and any prospect for success in court, Fenster’s Folly clearly meets the definition of a “frivolous, groundless, and vexatious” lawsuit.  The Colorado Attorney General (along with any parties joining in the defense) should pursue recovery of costs (taxpayer dollars) spent in defending the suit against all attorneys and plaintiffs involved.

Although an award of attorneys’ fees is rare (Clear The Bench Colorado won just such an award against “Colorado Ethics Watch” - CEW, pronounced “sue”, it’s what they do - one of only a few in the last decade) it can be done (although actually collecting on the judgement may take months, or years), when opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.

Such abuse of the courts for political posturing can and should be discouraged…

Given the unambiguous and overwhelming constitutional precedent against the case, Fenster’s Folly must be viewed for what it clearly is: a massive PR stunt that’s merely the opening salvo in part of a concerted attack on Colorado’s Constitution and the citizen initiative process in Colorado.

Ironically, part of that attack is likely to come in the form of legislatively referred ballot measures and/or “citizen” initiatives (such as state senator Rollie Heath’s “for the children” tax hike proposal) along with additional court cases to nibble away at TABOR (the Colorado Supreme Court is a perfect 0-for-15 in upholding Article X Section 20 of the Colorado Constitution - almost as perfect losers as the 0-for-16 2008 Detroit Lions; another reason Colorado has been called a “Judicial Hellhole“).

Additional references:
A more detailed (and highly informative) discussion of the constitutionality of the citizen initiative and referendum processes may be found in the Texas Law Review article, “A Republic, Not a Democracy?  Initiative, Referendum, and the Constitution’s Guarantee Clause” by Professor Robert G. Natelson.

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.

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

Although the 2011 legislative session is now (happily) concluded and part of the history of Colorado Politics, the effects of the bills passed this session and last will continue to be felt for some time…

Case in point: the majority of the “Dirty Dozen” tax increase bills passed during the 2010 legislative session (which exploited a Colorado Supreme Court ruling to take more of your money without asking, as is required under the Colorado Constitution) remain in effect.  Although the new legislative majorities were able to repeal two of the “Dirty Dozen” tax increases this year - last month, the legislature made progress towards “Cleaning up the ‘Dirty Dozen’ tax increases” with repeal of last year’s Agriculture tax increase, HB10-1195, Suspend Ag Sales & Use Tax Exemption (Ferrandino/Heath), and downloaded software tax increase, (HB 10-1192, Sales and Use Tax of Standardized Software (Pommer/Heath) - the remaining (unconstitutional) tax increase laws passed in 2010 (such as the “Candy Tax” and - my dog’s least favorite - the “Doggy Bag Tax”) remain on the books.

The “Dirty Dozen” was the name given to a package of twelve legislative bills which sought to increase tax revenues by eliminating existing tax credits or exemptions - an end-run around the constitutional requirement (in Article X, Section 20 - colloquially known as the Taxpayer’s Bill of Rights, or TABOR) for “voter approval in advance for… any new tax, tax rate increase, or… tax policy change directly causing a net tax revenue gain to any district.”

Even going into the last days of the 2011 legislative session, it appeared that what may have been the least popular of last year’s “Dirty Dozen” tax increases, the ‘Amazon Tax’ (HB 10-1193, Sales Tax Out of State Retailers (Pommer/Heath), was also likely to be another one to bite the dust.  Since the so-called ‘Amazon Tax’ was not only in violation of the Colorado Constitution, but also infringed upon the U.S. Constitution’s 4th Amendment protections against ‘unreasonable searches and seizures’, it had been challenged (in Federal Court - in order to avoid the judicial hellhole of Colorado jurisprudence) and prevented from enforcement by court injunction, anyway.  Given that the tax isn’t being collected anyway, and continuing to defend the tax in court keeps racking up taxpayer dollars in legal expenses, repealing the bill would seem to be a no-brainer.

That proved to be true in the House, where a bill introduced to repeal and replace the tax (HB 11-1318, Notification of Use Taxes, Stephens/Schaffer) appeared to be on the fast track to passage; the ‘Amazon Tax’ repeal bill was swiftly and overwhelmingly approved (on a 58-6 bipartisan vote) in the House, but was prevented from coming to a vote (killing it via a procedural move without having to take a recorded position) by Senate President Brandon Shaffer (D-Longmont).

Sometimes, it would appear, legislative action is not sufficient to succeed in undoing previous acts of the same legislature putting one’s life, liberty, or property at risk…

NONE of the “Dirty Dozen” tax bills would have seen the light of day if not for last year’s legislature’s exploitation of a Colorado Supreme Court ruling to bypass the Colorado Constitution’s requirement to receive “voter approval in advance for… any new tax, tax rate increase, or… tax policy change directly causing a net tax revenue gain to any district.”

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.

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

Occasionally, however, the legislature can succeed in undoing previous acts putting one’s life, liberty, or property at risk…

State legislators made some progress this week towards repealing another one of last year’s “Dirty Dozen” tax increases (which exploited a Colorado Supreme Court ruling to take more of your money without asking, as is required under the Colorado Constitution).  Last month, the legislature made progress towards “Cleaning up the ‘Dirty Dozen’ tax increases” with repeal of last year’s Ag tax increase, HB10-1195, Suspend Ag Sales & Use Tax Exemption (Ferrandino/Heath), and downloaded software tax increase, (HB 10-1192, Sales and Use Tax of Standardized Software (Pommer/Heath)).

The “Dirty Dozen” was the name given to a package of twelve legislative bills which sought to increase tax revenues by eliminating existing tax credits or exemptions - an end-run around the constitutional requirement (in Article X, Section 20 - colloquially known as the Taxpayer’s Bill of Rights, or TABOR) for “voter approval in advance for… any new tax, tax rate increase, or… tax policy change directly causing a net tax revenue gain to any district.”

Last year’s legislative majorities (Democrats dominated both chambers of the state General Assembly) were emboldened in their assault on the constitutional rights (and wallets) of Colorado citizens by an interpretation of the Colorado Supreme Court’s ruling in the notorious “Mill Levy Tax Freeze” case (another unconstitutional tax increase, sanctioned by the court under the pretense that a rate “freeze” which collects more revenue doesn’t count as a tax increase for triggering that pesky constitutional requirement to receive “voter approval in advance”).  Solid legislative majorities, a compliant governor, and a complicit supreme court allowed them to take a bigger bite of your money without first (or ever) asking for permission.

Since the 2010 elections resulted in a shift of control of one legislative chamber (the state House of Representatives) and many members of the new majority campaigned on a promise to seek the repeal of these unconstitutional tax increases, progress towards the elimination of any one of these unconstitutional (and economy-killing) tax increases is welcome news.

The bill to repeal the ‘Amazon Tax’ (HB 11-1318, Notification of Use Taxes) co-sponsored by Reps. Amy Stephens (R-Monument) and  Sue Schaffer (D-Wheat Ridge) repeals last year’s HB 10-1193, Sales Tax Out of State Retailers (Pommer/Heath), particularly the onerous, intrusive, and unconstitutional requirement for out-of-state retailers to divulge customer information to the state, while maintaining a requirement for out-of-state retailers to notify Colorado customers of their ‘obligation’ to pay state use taxes.

While enforcement of this requirement may prove difficult from a practical standpoint (the authority of the Colorado legislature to regulate businesses from out of state may rest on rather tenuous legal grounds), it does at least remove the requirement that retailers rat your out - which gave rise to the predicted (inevitable, really) court challenge to the law.

The ‘Amazon Tax’ repeal bill was swiftly and overwhelmingly approved in the House (on a 58-6 bipartisan vote) and is scheduled to be voted on in the Senate this week, where it is likely to pass (albeit less overwhelmingly) since the ‘Amazon Tax’ law has been blocked in Federal court since January.

NONE of the “Dirty Dozen” tax bills would have seen the light of day if not for last year’s legislature’s exploitation of a Colorado Supreme Court ruling to bypass the Colorado Constitution’s requirement to receive “voter approval in advance for… any new tax, tax rate increase, or… tax policy change directly causing a net tax revenue gain to any district.”

Still, it’s good to see “another one bite the dust.”

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.

Clear The Bench Colorado Director Matt Arnold discussed the judicial accountability movement in Colorado - from CTBC’s launch in April 2009 through the present - in a wide-ranging interview with Michael Schaus on KFTM Radio on 27 April 2011.

Topics include the formation of Clear The Bench Colorado, examples of how the Colorado Supreme Court violated the constitutional rights of Colorado citizens (particularly the right to vote prior to imposition of any tax increase via elimination of Tax Credits & Exemptions or re-defining Taxes as Fees) and opened the door to legislative abuses (such as last year’s “Dirty Dozen” tax increases), and the continued influence of the Colorado Supreme Court over several issues, such as the ongoing battle over Congressional Redistricting and state legislative reapportionment.

Listen to the podcast here (recording cuts off the first couple of minutes)

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.

“If we couldn’t laugh, we would all go insane.” Jimmy Buffet

Nowhere is this more true than dealing with Colorado’s consistently confusing and often arbitrary legal system and out-of-control judiciary - where the ruling majority on the Colorado Supreme Court 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 justices’ sworn duty to uphold the rule of law - and support (not dismantle) the Constitution.

Although remaining mindful of what’s at stake - holding our judiciary accountable for serial violations of our constitutional rights (to vote on taxes, even when taxes are called “fees”; keep your own property; bear arms in self-defense; and almost too many others to list); highlighting the judiciary’s dominant role in drawing up state legislative and congressional districts; and upholding the integrity of the judicial retention election process against the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench in violation of Colorado campaign finance law - is serious business, all work and no play makes Matty a dull boy.

So - scouring the internet so you don’t have to - Clear The Bench Colorado presents another edition of the Friday Funnies.

From the reliably humorous (if often irreverent) Cracked magazine (online) comes the following list of   “5 Awesomely Sarcastic Supreme Court Decisions“:

5.  Bertman v. Kirsch (1964) - dealing with government shenanigans concerning notice of appeal (the government filed a notice of appeal late on the due date, leaving respondent no time to file a response within the statutory deadline).  What makes it funny? The Supreme Court justice invoking Superman:

“I am aware of the argument that an able, alert, ever-diligent lawyer could have, had he tried hard enough, discovered that the Government had appealed — even in the closing hours of the sixtieth day. I do not doubt that had Bertman’s counsel been Superman, his X-ray eyes would have told him that a notice of appeal was being filed blocks away in the courthouse, or had he been a lawyer with no clients but Bertman he could have spent the sixtieth day hovering at the clerk’s office to see whether the Government would file a notice of appeal. But Bertman’s counsel (so far as the record shows) is not Superman, nor should the law expect him to be.”

4.  PGA Tour v. Martin (2001) - in which a golfer sues to be able to use a golf cart instead of walking, under the Americans with Disabilities Act (ADA).  What makes it funny? Justice Antonin Scalia, the Supreme Court’s funniest judge (as confirmed by a scientific study) waxes poetic on the “awesome responsibility… of determining the nature of golf.”

“We Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States … to decide What Is Golf. I am sure that the Framers of the Constitution … fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.”

(Scalia’s scathing wit highlights a basic fact: some issues are not - or should not be - justiciable; a fact acknowledged, in dissent, by a Colorado Supreme Court justice in the Lobato school funding case).

3.  Pottawatomie School Board v. Earls (2002) - in which the U.S. Supreme Court upheld drug testing for ALL extracurricular school activities (including the marching band and chess club).  Why is this funny? Seriously - the chess club on crack?   Band geeks blowing bongs?  Freaked-out Future Farmers?

Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree.”

2.  Los Angeles Board of Airport Commissioners v. Jews for Jesus (1987) - in which the U.S. Supreme Court unanimously ruled that (Surprise!) that “a resolution banning all ‘First Amendment activities’ at Los Angeles International Airport (LAX) violates the First Amendment.”  Why is this funny? It’s not, really - except that the Los Angeles Airport Commissioners actually argued otherwise with a straight face.

1.  Kyles v. Whitney (1995) - in which defense attorneys argued that testimony of four witnesses against a convicted murderer should be thrown out because “all clearly saw his face but hadn’t all agreed on his exact height and build. Why? One of them had seen Kyles only after he got into his getaway car.”  Why is this funny? Once again, it’s the Supreme Court’s funniest justice (Scalia) bringing on the humor with a ‘Lone Ranger’ reference (a metaphorical “silver bullet”, if you will):

To assert that unhesitant and categorical identification by four witnesses who viewed the killer, close-up and with the sun high in the sky, would not eliminate reasonable doubt if it were based only on facial characteristics, and not on height and build, is quite simply absurd. Facial features are the primary means by which human beings recognize one another. That is why … bank robbers wear stockings over their faces instead of floor-length capes over their shoulders; it is why the Lone Ranger wears a mask instead of a poncho; and it is why a criminal defense lawyer who seeks to destroy an identifying witness by asking ‘You admit that you saw only the killer’s face?’ will be laughed out of the courtroom.”

Finally, demonstrating that government’s claim to authority to tax every living creature earning a living is quite literal comes this story of a court upholding the power to impose an occupational tax - on a cat.

Yes, that’s right - in the 1982 case of Blackie the talking cat (Miles v. City Council, 1982), the courts upheld the authority of the city of Augusta, Georgia to “impose an “occupation tax” on the plaintiffs [Blackie and his human "guardians"].

Sadly, judicial abuses of your constitutional rights are no laughing matter.  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 unrestrained activism and political agendas in the courts.  We will continue to work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” judicial review process to increase transparency and accountability to the public, and to provide substantive and useful 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.

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

Occasionally, however, the legislature can succeed in undoing previous acts putting one’s life, liberty, or property at risk…

State legislators made some progress this week towards repealing one of last year’s “Dirty Dozen” tax increases (which exploited a Colorado Supreme Court ruling to take more of your money without asking, as is required under the Colorado Constitution).

The “Dirty Dozen” was the name given to a package of twelve legislative bills which sought to increase tax revenues by eliminating existing tax credits or exemptions - an end-run around the constitutional requirement (in Article X, Section 20 - colloquially known as the Taxpayer’s Bill of Rights, or TABOR) for “voter approval in advance for… any new tax, tax rate increase, or… tax policy change directly causing a net tax revenue gain to any district.”

Last year’s legislative majorities (Democrats dominated both chambers of the state General Assembly) were emboldened in their assault on the constitutional rights (and wallets) of Colorado citizens by an interpretation of the Colorado Supreme Court’s ruling in the notorious “Mill Levy Tax Freeze” case (another unconstitutional tax increase, sanctioned by the court under the pretense that a rate “freeze” which collects more revenue doesn’t count as a tax increase for triggering that pesky constitutional requirement to receive “voter approval in advance”).  Solid legislative majorities, a compliant governor, and a complicit supreme court allowed them to take a bigger bite of your money without first (or ever) asking for permission.

Since the 2010 elections resulted in a shift of control of one legislative chamber (the state House of Representatives) and many members of the new majority campaigned on a promise to seek the repeal of these unconstitutional tax increases, progress towards the elimination of any one of these unconstitutional (and economy-killing) tax increases is welcome news.  Last week, HB 11-1005, Reinstate Tax Exemption for Ag Products (Sonnenberg/Brophy), which would repeal the 2.9 percent state sales and use tax on agricultural compounds, bull semen and pesticides that was (unconstitutionally) imposed by last year’s HB10-1195, Suspend Ag Sales & Use Tax Exemption (Ferrandino/Heath), passed the House with a bipartisan 48-17 vote and appears likely to pass the state Senate as well, according to this article (”Ag tax repeal passes state House“).

Repealing last year’s (unconstitutional) agricultural tax increase is a win both for the rule of law and Colorado consumers - since the tax indirectly raised the price of all food grown, raised, or otherwise produced in Colorado.  Noticed your grocery bill creeping up?  Last year’s tax increase is partially to blame; projected revenue gains of $1.5M have not been realized, while higher food costs are shifted to consumers.

Of course, had the Colorado Supreme Court stuck to its sworn duty to uphold the Colorado Constitution and the rule of law in the first place (instead of legislating from the bench), none of the “Dirty Dozen” would have been proposed, much less passed - and we wouldn’t need to pass more laws to repeal bad laws already enacted.

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 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, and to provide useful 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 following article was written for, and originally appears in, The Constitutionalist Today (February edition).

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

As another legislative session begins, the Colorado General Assembly once again faces a hefty budget shortfall; the projected gap between expected revenue and planned spending is $1.2B (yes, that’s $1,200,000,000) this fiscal year.  Last year at this time, the projected revenue shortfall was a mere $660M (about half of this year’s shortfall) which the legislature “fixed” with a combination of one-time subsidies, funds transfers and raids, other budgetary gimmicks - and the “Dirty Dozen” tax increases.

The “Dirty Dozen” was the name given to a package of twelve legislative bills which sought to increase tax revenues collected by eliminating existing tax credits or exemptions - an end-run around the constitutional requirement (in Article X, Section 20 - colloquially known as the Taxpayer’s Bill of Rights, or TABOR) requiring “voter approval in advance for… any new tax, tax rate increase, or… tax policy change directly causing a net tax revenue gain to any district.”

Last year’s legislative majorities (Democrats dominated both chambers of the Colorado General Assembly) were emboldened in their assault on the constitutional rights of Colorado citizens (and the grab into their wallets) by an interpretation of the Colorado Supreme Court’s ruling in the notorious “Mill Levy Tax Freeze” case (another unconstitutional tax increase, sanctioned by the court under the pretense that a rate “freeze” which collects more revenue doesn’t count as a tax increase for triggering that pesky constitutional requirement to receive “voter approval in advance”).  Solid legislative majorities, a compliant governor, and a complicit supreme court allowed them to take a bigger bite of your money without first (or ever) asking for permission.

Since the 2010 elections resulted in a shift of control of one legislative chamber (the state House of Representatives) and many members of the new majority campaigned on a promise to seek the repeal of these unconstitutional tax increases, it’s worth re-visiting the “Dirty Dozen” tax laws to provide an overview of what’s at stake.

Originally, twelve bills were introduced to repeal a total of thirteen existing tax credits or exemptions; one of the bills was not passed, resulting in eleven bills increasing twelve taxes (either way, the term “Dirty Dozen” remains an appropriate and accurate description).

In order of introduction, the bills were:

HB10-1189, Eliminate Sales Tax Exemption for Direct Mail (Pommer/Heath), signed 2/24/10. This bill increased the sales tax on direct mail advertising, impacting both the actual advertising companies and the predominantly small-business market (especially local small businesses) that rely on direct-mail advertising as a cost-effective and less expensive alternative to radio/TV ads.  This tax increase was projected to raise $1.5M, but has actually generated less revenue.

HB10-1190, Suspend Industrial Fuel Sales & Use Tax Exemption (Pommer/Heath), signed 2/24/10.  Also known as the “Energy Tax”, this bill effectively raised the cost of every product and service produced in Colorado (since every business using energy - i.e. all businesses - now must pay a higher price for energy, directly or indirectly, sometimes both - used ‘on the job.’) This new tax hits manufacturing industries, already pinched by increasing fuel prices, especially hard; the state’s largest manufacturing industry (Pueblo’s Evraz Rocky Mountain Steel) expected to pay $2M/yr in additional costs.  Projected state revenue gains of $48M have not been realized.

HB10-1191, Eliminate Candy & Soda Sales Tax Exemption (Pommer/Heath), signed 2/24/10.  The notoriously capricious Candy Tax not only angered Colorado kids, it also burdened stores with checking ingredients for each item to see if it was subject to taxation. (Ironically, some “energy bars” are considered “candy” while “Twix” or “KitKat” bars are not, based on the ingredient list).  Again, small businesses were disproportionately impacted and, predictably, revenue projections of $17.9M have not been achieved.

HB10-1192, Sales & Use Tax of Standardized Software (Pommer/Heath), signed 2/24/10.  Software downloads - particularly upgrades or updates to previously purchased programs such as antivirus or antispam software - were most impacted; previously, direct online purchases were not taxed.  Projected revenue gains of $15M have not been realized.

HB10-1193, Sales Tax Out-of-State Retailers (Pommer/Heath), signed 2/24/10.  Also known as the Amazon Tax, this tax increase prompted Amazon.com to terminate its local affiliate program (reducing income for some 5,000 Coloradans) and led to a (predicted) court challenge, since the bill sought to collect personal purchase data from online retailers (violating the 4^th Amendment). Taxpayers are funding the state’s defense (filed in Federal court, due to lack of confidence in Colorado courts) and needless to say, the projected $5M revenue has not been achieved.

HB10-1194, Eliminate Nonessential Articles Sales Tax Exemption (Ferrandino/Heath), signed 2/24/10.  Otherwise known as the Doggy Bag Tax - since legislators consider take-home food containers “non-essential” items for restaurants and thus subject to higher taxes (raising the cost of dining out, since the restaurants have to factor the increased cost into their prices).

HB10-1195, Suspend Ag Sales & Use Tax Exemption (Ferrandino/Heath), signed 2/24/10.  Increasing taxes on a wide range of agricultural products (including animal feed, vaccines, drugs, pesticides, etc.) has indirectly raised the price of all food grown, raised, or otherwise produced in Colorado.  Notice your grocery bill creeping up?  This tax increase might be to blame; projected revenue gains of $1.5M have not been realized (and higher costs are shifted to consumers).

HB10-1196, Eliminate Certain Cars Qualified for Tax Credits (Ferrandino/Heath), signed 2/24/10.  Removed several vehicles previously qualifying for tax credits from the list.

HB10-1197, Reduce Conservation Easement Cap Amount (Ferrandino/Heath), signed 4/29/10. Reduced the maximum state income tax credit allowed for conservation tax easements (expect Governor Hickenlooper to be willing to sign off on repeal, for obvious personal tax reasons).

HB10-1198, Suspend Credit Alternative Minimum Tax (Ferrandino/Heath), postponed.

HB10-1199, Net Operation Loss Deduction Temp Limit (Ferrandino/Heath), signed 2/24/10. Reducing the ability of businesses to write off losses just when they might be recovering delays their ability to invest, create jobs and generate revenue.  Penny wise, pound foolish?

HB10-1200, Enterprise Zone Investment Tax Credit Deferral (Hullinghorst/Heath), 5/7/2010.  Deferring income tax credits on enterprise zone investments has, unsurprisingly, reduced the willingness of potential investors to… well, invest - further slowing economic recovery.

The preceding list was a short summary of the “Dirty Dozen” tax bills; space precludes more detail, but interested readers can learn more at http://www.clearthebenchcolorado.org/ (search on keywords “Dirty Dozen”, “Amazon Tax”, “Candy Tax”, “Doggy Bag Tax” and others).

Matt Arnold is currently the executive director and primary spokesman for the grassroots effort to restore accountability to Colorado’s judiciary, Clear The Bench Colorado.  Matt launched the effort following the Colorado Supreme Court’s violation of the Colorado Constitution, citizen’s rights under the Taxpayer’s Bill of Rights (TABOR), and their duty to uphold the rule of law in the infamous “Mill Levy Tax Freeze” case.  Since April 2009, Matt has tirelessly sought to educate Colorado voters of their right to demand accountability of our Supreme Court justices in the November 2010 retention elections, which (although falling short of removing the three anti-constitutional incumbents on the ballot, achieved the highest percentage of “NO” votes for sitting “Supremes” in the history of the state- on a shoestring budget and no organized support).

Clear The Bench Colorado Director Matt Arnold discussed the Colorado judicial accountability effort in 2010 (and beyond) on the Rob McNealy show, Thursday 13 January 2011.

(Listen to the podcast here - the segment starts at the 47:00 minute mark)

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 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.