Clear The Bench Colorado will be giving the opening presentation at the North Denver Candidate Search 2010 Forum this Sunday (21 February) at the Pinnacle Events Center (84th Ave just W of I-25).  Doors open to the general public at 2:00 PM, and the event is scheduled to continue through 6:30 PM.

The event will also feature candidates for U.S. Congress in District 2 and District 7, for U.S. Senate, and for Colorado Governor.

ROAR, Denver/Front Range 9.12 Project, and Broomfield 9.12 Project (non-partisan, grassroots organizations) are hosts of this Candidate Search 2010 Forum. This event provides an opportunity for you to learn more about the candidates and the principles for which they stand. And you, the voter, will have a chance to learn what action they will take on the current state of affairs.

Take the opportunity to learn more about why the MOST important votes you can cast in this very important election year are four “NO” votes on the unjust justices of the Mullarkey Majority on the Colorado Supreme Court - and get to know more about the candidates for those other offices, too.

Become an informed citizen; conduct your own evaluation of the performance of these justices, based on how (and whether) they follow the Constitution and uphold the rule of law.  Armed with information, Yes, you can exercise your right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (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 in the upcoming November retention elections!

Apropos of absolutely nothing - except that it features a dog (a recurring theme on our “Friday Funnies” installments) and I found it hilarious (”If only everyone saw you the way your dog does…”)

“Dude too supercool…”

Be supercool this November -  exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (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 under rule by an oligarchy of activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices!

Following the Monday Denver Post’s front-page, above-the-fold coverage of the “tough vote” facing Colorado Supreme Court justices in the upcoming statewide elections this November, other media outlets around the state are picking up on the issue - which may become among the hottest political topics in Colorado this year.

Shamelessly mixing metaphors, Monday’s Denver Post front-page story - coming close on the heels of a guest commentary outlining weaknesses in the current judicial performance review process in this last Saturday’s Post, an earlier article noting the Attorney General’s remarks that he advocates a “NO” vote on three of the four justices scheduled for retention, and extensive coverage across the state on the “Dirty Dozen” tax increase bills - may have been the proverbial snowball that provided just enough critical mass to unleash a veritable avalanche of coverage on the issue of statewide retention elections for the Colorado Supreme Court this year.

Naturally, the “new media” was quickest to pick up on the topic, with articles such as Ballot 2010:  Supreme Court of Colorado and these news items about judicial performance evaluations and Clear The Bench Colorado picking up steam), along with an extensive listing of the various subterfuges, evasions, and outright constitutional violations enabled by the Colorado Supreme Court’s rulings in order to raise (or “freeze” at a higher rate) taxes, increase “fees” and eliminate other limits on taxing and spending by state government and capped by coverage of Sen. Chris Romer’s statement which “lauded last year’s controversial Colorado Supreme Court ruling that said a constitutional provision requiring tax increases to be put to a popular vote did not apply” - taking a stand against the rights of citizens so that the “legislature, thanks to the Supreme Court decision, has the right to be back in charge…”

“Old media” was not far behind in picking up on and amplifying the topic, such as the commentary  in Thursday’s Fort Collins Coloradoan (”Citizens should get to vote on taxes“), decrying a “misguided state Supreme Court decision that allowed for these tax increases without a vote of the people.”

“The Colorado Supreme Court got this one wrong. This is why I offered amendments to the bills seeking to put these higher taxes to a vote of the people. Allowing the citizens of Colorado to have their constitutionally guaranteed chance to weigh in on job-killing tax hikes is the least that we should do.”

Even smaller newspapers around the state such as the Summit Daily News are weighing in on the issue (”Smaller government = more power to the people“):

Closer to home, within the state, we need to do all we can as citizens of Colorado to nip a growing misuse of power within our Supreme Court. We have the constitutional right to vote on whether we want to be taxed, in any event, for any reason. Some lawmakers in our government are presently busily taking away our right to vote on taxing. There are four unjust judges who will want to be confirmed in November who should be thrown out by a simple NO vote next to their names on the ballot. They have been increasing taxes and creating other unconstitutional atrocities against the will of the people for too long. In November say NO to The Mullarkey Bunch - Michael Bender, Alex Martinez, Nancy Rice and Chief Justice Mary Mullarkey. There will be plenty of reminders as their unconstitutional tax increases start hitting you in the wallet. Visit the [Clear The Bench Colorado] website for the full scoop on the sweets tax and the other dirty dozen agenda-driven invasions of our rights as voters, especially when it comes to taxes. Ritter’s (he must go too) vehicle registration fees are really unconstitutional tax increases that we would not have voted for if we had been given our rights as citizens to vote on tax increases. This kind of misuse of power must be stopped and we have the power to say NO.

Thanks in part to the increased (and growing) coverage - acknowledging that there actually ARE scheduled statewide elections to allow voters to retain (or NOT retain) our Colorado Supreme Court justices in office, more and more people throughout Colorado are becoming aware that “we have the power to say NO” - and learning of the ample cause for exercising that power (indeed, that right).

Defend your right to have a vote before being taxed- and exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (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 rule by an oligarchy of activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices!

Recovering from all the excitement of Monday’s front-page Denver Post story profiling the “tough vote” facing four Colorado Supreme Court justices in the upcoming statewide retention elections this November and scanning the internet for other items of interest (such as this article on the Supreme Court of Colorado and these news items about judicial performance evaluations and Clear The Bench Colorado picking up steam), I came across an interesting article with the intriguing title “A Billion Reasons Colorado Taxpayers Don’t Trust State Government” on the “A Line of Sight” blog.

The article recounts the accelerating erosion of the Taxpayer’s Bill of Rights during the last three years of one-party rule in Colorado:

Gov. Bill Ritter and the Democrat-controlled legislature have increased property taxes by more than $234 million a year, raised vehicle licensing “fees” by $250 million a year, instituted new hospital patient “fees” that will cost $600 million a year, and imposed some $180 million in new sales and use taxes.

All told, Ritter and the legislature have managed to increase the cost of taxes and fees by more than $1.1 billion a year and, incredibly, not once triggered Colorado’s constitutional requirement that taxes can be raised only by a vote of the people.

Taxpayer protections - even when written into the state constitution - are targets for continual political and legal assault by forces in and near government. 

It’s a good analysis, although it downplays the role of previous Republican administrations (Ref. C?) and legislative majorities in starting Colorado down the slippery slope (the parallels to the national level are striking) - but most importantly, the article does not go nearly far enough in laying the blame where it most appropriately belongs: squarely at the feet of those who should have been the guardians of our Constitution (and our constitutional rights), the Colorado Supreme Court.

The article does do a pretty good job of listing the issues:

In 2007, Democrats changed the school finance act to allow local school districts to collect more property tax revenues and reduce the state’s share of K-12 education funding.  Previously, even many Democrats acknowledged that such a change must be presented to the voters.

This time, however, Democrats commandeered the political will to pass such a law and constructed a legal argument which, although rejected by a lower court, ultimately prevailed in the Colorado Supreme Court.  As a result, Coloradans will pay an extra $234 million this year in property taxes - and nearly $3.8 billion extra over 10 years.

This law - the notorious “Mill Levy Tax Freeze” - did not merely “prevail” in the Colorado Supreme Court; it’s passage was aided and abetted by the Mullarkey Court’s demonstrated hostility to TABOR and willingness to shred the Constitution wherever an excuse could be found (the possibility of executive-legislative-judicial collusion before the fact cannot be ruled out).

Thus emboldened, the 2009 legislature smashed another of TABOR’s prohibitions by eliminating the general fund spending limit without a public vote. Although Colorado Revised Statutes specifically referred to this provision as a “limitation” on the general fund, Democrats and their attorneys argued that it was instead an “allocation strategy” and, therefore, not subject to TABOR’s prohibition against weakening existing spending limits.

Last year’s unconstitutional repeal of the Arveschoug-Bird 6% limit on the growth of state spending in the 2009 legislative session (SB 228) likewise would never have been even proposed, much less passed, but for the Colorado Supreme Court “case that never was” - a legal challenge did NOT emerge because it was apparent that “the fix was in” following the Colorado Supreme Court’s blatantly unconstitutional ruling in the “Mill Levy Tax Freeze” case.  The Mullarkey Majority thus “aided and abetted”  the commission of a crime against the Colorado Constitution without even having to lift the proverbial pen to paper - and has clearly emboldened a legislature (and governor) in pursuit of every last dime they can squeeze out of Colorado citizens to spend according to their priorities.

Speaking of squeezing every last dime out of Colorado citizens - everything from the “Candy Tax” and the “Doggy Bag Tax” to a whole host of other taxes impacting Colorado consumers and businesses (oh, and farmers & ranchers, too) was only made possible by the judicial activism of the Mullarkey Majority on the Colorado Supreme Court:

In its ruling on the 2007 property tax increase, the supreme court also went out of its way to tip off lawmakers that they could also raise other taxes so long as they didn’t raise revenue above the TABOR spending limit.

The Colorado Supreme Court also aided and abetted perhaps the most unpopular  new tax in Colorado history: the deeply regressive and punitive “FASTER” Colorado Car Tax (er, registration “fee” increase) along with a veritable explosion in new and increased “fees” designed to evade the TABOR requirement for prior voter approval of tax increases:

An even greater subterfuge, however, is the onslaught of taxes masquerading as fees.  Generally, taxes - which are subject to TABOR and therefore subject to voter approval - are collected broadly and can be spent for any purpose.  Fees, however, have long been understood to cover the cost of a regulatory function or of administration (e.g., licensing or registration) upon which the fee is assessed.

The article notes that the Colorado Car Tax (including the punitive “late fee”) is expected to take an additional $250M/year out of the pockets of Colorado drivers, and an additional “fee” charged on hospital services will likewise gouge the sick for $600M/year.

Together these two fees when fully implemented are projected to raise a combined $850 million a year.  All other previously-existing state fees were projected to generate about $1.6 billion in 2009-10, illustrating how this new, expansive definition of “fee” threatens to become the exception that swallows the rule.  With fees of this magnitude, voters may never be asked to approve another genuine tax.

(The article’s author is stealing my “good news, bad news” line - that, thanks to the Colorado Supreme Court, the Colorado Legislature won’t be increasing or passing new taxes this year, they’ll just eliminate existing tax credits/exemptions or call it a “fee” - a line that has proven uncomfortably prophetic).

If you don’t like all of these new and higher taxes (or “fees”, or “rate freezes”, or whatever) - blaming the Legislature who passed them, and the Governor who signed them into law, only tells half the story, because neither one could have done it without help - from the Mullarkey Majority on the Colorado Supreme Court.

Defend your right to have a vote before being taxed- and exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (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 rule by an oligarchy of activist, agenda-driven “justices.”  Help toSupport Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices!

Clear The Bench Colorado Director Matt Arnold appeared on Backbone Radio (710AM KNUS) Sunday evening at 6:30 to discuss the role of the Colorado Supreme Court in enabling the “Dirty Dozen” tax increase bills pending final approval in the Colorado Legislature.

ALL of these bills are seeking to exploit an apparent loophole ripped into the Colorado Constitution by last year’s notorious “Mill Levy Tax Freeze” ruling (which didn’t only blindside voters to unconstitutionally increase property taxes, but further undermined TABOR protections) by the Colorado Supreme Court.

Despite the apparent loophole created by the Mullarkey Court’s ruling last year, many (if not most) of the “Dirty Dozen” tax increases are STILL unconstitutional, as they either impose an entirely new tax (requiring prior voter approval) or violate other constitutional provisions (both of TABOR and, in one case, the  U.S. Constitution’s 4th Amendment protection against unreasonable searches & seizures).  Many (if not most) of these bills will be challenged in court - and (especially if the worst current justices are cleared from the bench in the November 2010 retention elections) the challenges will likely succeed.

Listen to the podcast to hear more about how the Colorado Supreme Court has aided and abetted another assault on your rights - and your wallet.

Become an informed citizen; conduct your own evaluation of the performance of these justices, based on how (and whether) they follow the Constitution and uphold the rule of law.  Armed with information, Yes, you can exercise your right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (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 in the upcoming November retention elections!

It’s taken a while, but the Denver Post has started to take notice of those other statewide elections (the four MOST important votes Colorado citizens can cast in this very important election year).  Appearing above-the-fold on the front page (print edition) and top news story (online edition), the article (”Four Colorado Supreme Court justices face a tough vote in elections“) finally gives the issue some much-deserved (if somewhat belated) attention.  Some excerpts:

Judicial-retention elections are traditionally quiet, noncontroversial affairs that barely get attention before Election Day.  [Ed.: Not this year!]

But a series of decisions made by the Colorado Supreme Court over the past decade has energized opponents of four justices who will be up for retention this fall, including Chief Justice Mary Mullarkey.

Critics say the majority of the justices’ rulings on property taxes, eminent domain and congressional redistricting have violated the state’s constitution or are clearly partisan.

The article notes that “the justices in question received high ratings on the state’s judicial-performance evaluations” in 2000.  Ironically, there was an article published in Saturday’s Denver Post, entitled “Evaluating the performance of justices” which noted the weaknesses inherent in the current judicial performance review process:

There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters.  If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do.  Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations.

Voters should also beware the opinions of “legal experts” and “impartial observers” such as the University of Colorado law professor quoted later in the same front-page story.  Although Professor Richard Collins may have some stature as a law professor, he is neither unbiased nor “impartial” - as a quick look at his resume and pattern of political contributions (thousands of dollars given to Democrats) would show.  An activist law professor glossing over the work of activist justices should come as no surprise.

Other equally qualified commentators take a diametrically different view of the constitutionality (and adherence to proper legal procedures and protocols) of numerous Colorado Supreme Court rulings.  Commenting on the “Mill Levy Tax Freeze” case in the same article, attorney Richard Westfall (among the preeminent practicing constitutional lawyers in Colorado) states:

“[T]he Colorado Supreme Court chose to ignore the clear evidence and the findings of fact made by the trial court below. I believe the court did that to reach a predetermined result and therefore, in this particular incidence, the court did not follow the facts of the law as it should.”

The article concludes by referencing recent statements that Colorado Attorney General John Suthers (the state’s top law enforcement official) made about voting against the retention of Mullarkey, Bender and Martinez.  As the state’s top official with specific responsibility to “represent and defend the legal interests of the people of the State of Colorado” his statement is a clear condemnation of the disregard for the “legal interests of the people” demonstrated time and again by the Mullarkey Majority on the Colorado Supreme Court.

However, the ultimate authority - and final decision - rests not with the “experts”, but with the citizens.  The Constitution is OUR document - meant to impose limits and constraints on the power and authority that We The People delegate to the government, “in order to secure our inalienable rights.”

“The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.”
–Supreme Court Justice Felix Frankfurter, Graves v. New York, 1939

Colorado Supreme Court justices are - and must be - accountable: to the law, to the Constitution, and ultimately, to the citizens of Colorado (”We The People“).  Retention elections are the only mechanism by which the people of Colorado can hold the appointed guardians of our constitutional rights accountable.

Become an informed citizen; conduct your own evaluation of the performance of these justices, based on how (and whether) they follow the Constitution and uphold the rule of law.  Armed with information, Yes, you can exercise your right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (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 in the “tough” November elections!

It’s Valentine’s Day, but the Denver Post is not feeling the love…

Between a weekend social calendar and attending several events (including One Sweet Fundraiser for Clear The Bench Colorado - a great success!  Thanks to all who attended and contributed!) yesterday, I almost missed the publication of the following guest commentary article on judicial performance evaluations in Saturday’s Denver Post.  Curiously, the article was published only in the print edition, departing from the Post’s normal practice of also printing guest commentary articles online.

[UPDATE: the Denver Post, possibly in response to criticism, later did publish the article online]

A suspicious type might think that the Post’s exclusion of this article from the wider dissemination (and availability for internet search engine reference) of online publication fits in with a consistent pattern of suppressing any mention of the upcoming statewide retention elections for Colorado Supreme Court justices, or the dubious constitutionality (if not outright evasions of TABOR) of the recent “Dirty Dozen” tax increase bills (which the Denver Post supports - while supporting continued special-interest tax exemptions for newspapers and newspaper advertising supplements) in their news coverage.  (A real conspiracy-monger might mention that the Post’s journalistic integrity with regard to covering news uncomfortable for the Colorado Supreme Court could be compromised by the fact that the Denver Post is now the Colorado Supreme Court’s landlord - or cozy neighbor - in the same building).

In the spirit of the holiday - won’t you be my Valentine, Denver Post? - we will refrain from such musings, and continue instead to the well-written and informative article that the Denver Post did publish (albeit from a guest commentator) on Valentine’s Day Eve.

GuestCommentary

Evaluating the performance of justices

By William M. Banta

The opportunity for Colorado voters to decide whether a state Supreme Court justice is doing a good job doesn’t come around very often, only about once every 10 years.  This year, four out of the seven justices who sit on the Colorado Supreme Court are up for retention.

Ten years is a long time for any public servant to go without a job review, and the 10-year election cycle is about the only accountability our Supreme Court justices have to the people of Colorado.  The voters’ responsibility ins determining whether or not to retain a justice is all the more important because this event occurs so infrequently.

Under our form of government, the function of the Colorado Supreme Court is to decide cases.  When it comes to the job performance of individual justices, the written decisions of the court provide the key to their performance.

In the last few years, the Supreme Court (including all four members who are up for re-election) has weighed in heavily on important constitutional questions such as taxes, schools, and the proper role for courts (vis-à-vis the legislative or executive branches of government).

The court has published controversial written decisions on these and other issues that impact Colorado citizens.  Because the court’s recent rulings about taxes, schools and judicial authority are not straightforward in their reasoning, what voters are going to want for 2010 is some analysis of the decision-making.

In evaluating Supreme Court cases, the decisions should be reviewed for reasoning and clarity.  The court’s conclusions should also be examined for adherence to the rule of law.  For instance, when the language of the Colorado Constitution reads one way but a justice writes a decision or supports an opinion that interprets the constitution in the opposite way, there’s a legitimate question whether the justice colored outside the lines or adhered to fundamental principles.  And that’s a job-performance issue that voters would want to consider.

In Colorado, there is a state commission on judicial performance that publishes its consensus of each justice’s performance.  For each 10-year retention cycle, the commission is required to evaluate job performance, write up a narrative, and make a recommendation for the voters.  In the past, the commission’s recommendation has always been that the voters should re-elect or retain a justice.

There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters.  If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do.  Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations.  Some commentators and observers have denigrated the narratives as a “rubber stamp” exercise for retaining judges.

Now would be a good time for the commission to write up substantive performance evaluations for the justices who seek re-election.  It would help the credibility of our judicial merit selection/performance evaluation system.

The Colorado system for appointing, evaluating, and retaining or not retaining Supreme Court justices depends on voters receiving relevant, substantive and vigorous information about individual job performance.  That’s what voters will need for the elections in November.

(William Banta was a State Judicial Performance Commission member in 2005 and 2006 and spent seven years on the 18^th Judicial District Performance Commission before that.)

Clear The Bench Colorado agrees wholeheartedly that voters need “relevant, substantive and vigorous information” - based on “the written decisions of the court” - in order to make an informed decision on whether to retain, or NOT to retain, “the four out of the seven justices who sit on the Colorado Supreme Court” who are scheduled for retention elections this November.   Based on our analysis of the most impactful decisions rendered by these Colorado Supreme Court justices during their tenure - led by the “Mill Levy Tax Freeze” property tax increase case, the “fees are not taxes” case, the “Telluride Land Grab” eminent domain abuse case, the ‘Lobato’ school funding case, and the judicial usurpation of legislative authority in the Congressional redistricting case, among others - the verdict is clear: these justices deserve a resounding “NO” vote in the November elections.

Become an informed voter; conduct your own evaluation of the performance of these justices, based on how (and whether) they follow the Constitution and uphold the rule of law.  Armed with information, Yes, you can exercise your right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (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 rule by activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions - and vote “NO” on retaining these unjust justices in the November elections!

As usual, it’s “for the children.”

Boulder lawyer Herb Fenster has declared that he intends to file a lawsuit against the people and state of Colorado to nullify a section of the Colorado Constitution (Article X, Section 20 - colloquially known as TABOR, the Taxpayer’s Bill of Rights) in Federal court “by the end of the month,” under the flimsy pretext that it violates the U.S. Constitution “guarantee that states have a republican form of government.”

“TABOR, he argues, violates Article IV Section 4 of the U.S. Constitution.”

Fenster’s pretextual argument is curious (at best), given the definition of “Republic” or “republican form of government” in common use by legal and constitutional scholars:

republic n 1 : a government having a chief of state who is not a monarch and is usually a president; also : a nation or other political unit having such a government 2 : a government in which supreme power is held by the citizens entitled to vote [Ed.: emphasis added] and is exercised by elected officers and representatives governing according to law; also : a nation or other political unit having such a form of government Source: NMW

In the context of the United States, both definitions apply.

Rumors of Fenster’s plans to sue the state have been circulating since his testimony before the legislature’s Long-term Fiscal Stability Commission last Summer; indeed, he then stated his plans were to “file [the lawsuit] in the fall and which he said would include several state lawmakers as plaintiffs.”

Given the generally supportive stance of most Republican lawmakers towards TABOR and the generally more hostile attitude of many Democrat lawmakers toward TABOR’s fiscal constraints (as evidenced by the nearly lock-step, party-line support of the TABOR-evading “Dirty Dozen” tax increase bills recently rammed through the Colorado Legislature), it might be assumed that the “several state lawmakers as plaintiffs” might be found among the Democrat caucus.

“However, several Democrats said the lawsuit doesn’t represent a viable solution…

Rep. Lois Court, D-Denver, said the lawsuit would ironically attack the one part of TABOR most lawmakers are in favor of: the right of voters to approve tax increases.”

“I don’t think that part of TABOR is what the people of Colorado are interested in fixing,” she said. “I think it’s why people voted for TABOR.”

(Ironically, Rep. Lois Court voted Yes on ALL of the “Dirty Dozen” tax increase bills before the House, bypassing that “one part of TABOR most lawmakers are in favor of: the right of voters to approve tax increases”).

So why is Fenster - after months of rumors - pressing forward with his lawsuit now?

Criticism of the “Dirty Dozen” tax increase bills on constitutional grounds - citing the bills’ blatant violation of the letter and intent of the Taxpayer’s Bill of Rights, whatever the pretext afforded for the bills by last year’s Colorado Supreme Court ruling in the “Mill Levy Tax Freeze” case - has highlighted the role of TABOR in affording constitutional protections for the rights of Colorado citizens (yes, including employees and owners of small businesses - even big businesses - in the state).

Many advocates for the tax increase bills - either within the Legislature or among the many special-interest lobbyist groups testifying in favor of passage - claimed that they were necessary to “preserve funding for education” and “save teachers’ jobs” irrespective of the rights of the remainder of Colorado citizens.  Constitution be damned - “we need the money NOW!” (Rep. Jack Pommer, House Finance Committee, comments during witness testimony)

Herb Fenster is a self-described “unrelenting advocate for public education, from early childhood learning through higher education.”  Apparently he, too, believes they “need the money NOW!”

So, you see - it’s “for the children.”

However, even a child can see that bypassing TABOR - and TABOR’s protection of their rights - is NOT “the right thing to do.”

 A recent editorial in the Colorado Springs Gazette (”Sue the people, empower the state“) eloquently defends the right of the People over the power of the state - and underlines the importance of constitutional limits on government power (including “the power to tax and spend”) as a much-needed safeguard for individual rights:

“In a constitutional republic, laws are in place to confine the powers and authority of government in order that individuals and individual rights reign supreme over the wants and needs of a ruling class or the collective.”

The editorial concludes:

“Anyone familiar with the United States Constitution knows that it limits the powers of government in the interest of vesting authority in the individual. Governments have no rights protected by the laws that govern our republic. Only individuals have rights. [emphasis added] The Preamble doesn’t say “We the government.” It says we the governed, written like this: “We the people.”

Citizens in Colorado, ”we the people,” took to the voting booths in 1992 and approved a plan to restrict state government’s ability to unilaterally tax and spend. By approving TABOR, citizens said they would determine the scope of taxing and spending by the governments they pay to serve them. In doing so, the people made Colorado’s Legislature a textbook example of republican government, controlled by citizens. …

The Legislature has no rights. The “public,” as spelled out in the word “republic,” has rights to constrain the Legislature.  That is what Fenster, a seasoned legal scholar, will learn when he loses this fight.”

Defend your constitutional rights against assaults in the courts - exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (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 rule by an oligarchy of activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions - and vote “NO” on retaining these unjust justices!

After the Colorado Senate voted in favor of the “Dirty Dozen” tax increase bills under consideration by the Legislature on  a mostly party-line vote Wednesday (following last Monday’s similar mostly party-line approval of the bills in the Colorado House), the legislative battle over the tax increases (er, “elimination of tax credits and exemptions“) is all but over.

However, as students of history know - a lost battle does not mean the end of the war.  In fact,

“some lawmakers wonder if another front will emerge months down the line in court.”

The REAL story behind the “Dirty Dozen” tax increase proposals is their dubious (to put it charitably) constitutionality.

ALL of these bills are seeking to exploit an apparent loophole ripped into the Colorado Constitution by last year’s notorious “Mill Levy Tax Freeze” ruling (which didn’t only blindside voters to unconstitutionally increase property taxes, but further undermined TABOR) by the Colorado Supreme Court.

Under Article X, Section 20 of the Colorado Constitution (TABOR - the Taxpayer’s Bill of Rights) any tax increase or “tax policy change… resulting in a net revenue gain” REQUIRES prior approval by a vote of the people.

Despite an interpretation of part of last year’s notorious “Mill Levy Tax Freeze” ruling which in essence declared “open season” on the tax credits & exemptions now being eliminated by the “Dirty Dozen” tax increase bills, the requirement stands - YOUR rights are being violated by the Legislative majority, aided and abetted by the “Mullarkey Majority” on the Colorado Supreme Court.

However, even under the expansive interpretation of that ruling to give “cover” to these tax increases, many of the bills STILL do not pass constitutional muster; many of these bills WILL be challenged in court, and (at least with a new Colorado Supreme Court majority that actually believes in UPHOLDING the Colorado Constitution, instead of actively working to undermine it) these challenges have good prospects for success.  As the Denver Post (Lawmakers predict court fights on ending tax breaks) notes:

“Business groups say several bills are likely to end up in court, including one [HB10-1190] that would remove the sales-tax exemption for energy - such as electricity, fuel and coal - used in the manufacturing process.”

“Critics said it would impose a new tax because the prohibition against taxing industrial-use energy is an “exclusion,” not an “exemption.” That is, when the state’s original sales-tax law was written in 1935, it specifically excluded energy used in the industrial process from taxation, so simply changing the statute is not enough, business groups say.

The measure would have to go before voters as a new tax increase under the Taxpayer’s Bill of Rights, known as TABOR.”

Other bills are on similarly shaky constitutional grounds.

A bill seeking to impose a tax on computer software downloads (House Bill 10-1192: Sales and Use Tax of Standardized Software (Pommer/Heath)) is also considered to be a “new” tax, since current law only imposes a tax on software packaged and sold on a physical medium such as a CD/disk:

Software industry officials said Colorado would be one of only 11 states with such a law, and imposing the sales tax would hit most businesses because companies large and small depend so much on software. [Ed. - and consumers!  Most anti-virus software is bought and/or upgraded via downloads, for example].

Perhaps the most troubling bill on constitutional grounds (including not just violations of the Colorado Constitution, particularly the Taxpayer’s Bill of Rights, but also the U.S. Constitution’s 4th Amendment protection against unreasonable searches & seizures) is the bill imposing a tax on online purchases - House Bill 10-1193: Sales Tax Out of State Retailers (Pommer/Heath).  As the Denver Post article further notes:

“And Colorado may be sailing into uncharted legal waters with a bill that would attempt to tax online sales from such out-of-state retailers as Amazon.com. The current version of the bill would require the online retailers to send out notices to Colorado purchasers that they owe the state use tax on their purchases, and it would fine the retailers if they don’t do it.

The hope is that retailers would find it less trouble to just collect the tax from purchasers and remit it to the state. But Brophy and others say Amazon.com and other companies will cite a U.S. Supreme Court decision that held online retailers are not responsible for collecting the tax.

No other state is attempting such a method to collect tax from online retailers.

[Senator Greg] Brophy [R-Wray] maintains that the only way the state could hope to enforce the tax is by obtaining detailed lists of purchases Coloradans made and invading their privacy.”

In fact, the state intends to do just that - as the bill contains provisions to subpoena online retailers to receive lists of purchases made by Colorado citizens.  As several commentators have noted, the “Big Brother” Orwellian implications of this “Shift on Internet Tax Tactics“ are simply staggering in scope.

Finally, some of the “Dirty Dozen” bills, such as the “Candy Tax” and the “Doggy Bag Tax” are not only just plain silly, but would necessarily be so capricious and arbitrary in application and enforcement (imagine hordes of “Candy Police” and “Doggy Bag Inspectors” sniffing around stores and restaurants for violators and technical infractions) that they are likely to be challenged on equal application and due process grounds.  (And you thought the “Green Police” Audi Superbowl ad was scary enough…)

Don’t let unjust justices take your rights for a ride - exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, & Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away more of 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 rule by an oligarchy of activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions - and vote “NO” on retaining these unjust justices!

Still looking for just the right sweets for your sweetie? 

Looking to stock up on your favorite dessert(s), and support a great cause at the same time?

This may be your last opportunity to enjoy a Valentine’s Day before the “Candy Tax” becomes law - so make the most of it, AND learn more about how the Colorado Supreme Court justices helped to put an unconstitutional arrow through Cupid’s heart.

Satisfy your sweet tooth in the perfect Valentine’s Eve setting (Loveland, CO) while being entertained by the mellifluous musings of Clear The Bench Colorado Director Matt Arnold on why we need to vote “NO” on the unjust justices of the Colorado Supreme Court in retention elections this November.

We won’t tax your Doggy Bag on the way out, either…

Don’t let unjust justices take the sweet out of your Valentine’s Day - exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (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 rule by an oligarchy of activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your voice (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices!