TABOR
Frivolous anti-TABOR lawsuit (“Fenster’s Folly”) gets hearing before Federal judge, who questions Supreme Court precedent
The frivolous, groundless, and vexatious politically-motivated lawsuit attempting to overturn a Colorado Constitutional Amendment (the Taxpayer’s Bill of Rights, colloquially known as “TABOR”) filed in Federal court last May got its day in court yesterday (Wednesday, 15 February) before U.S. District Court Judge William Martinez, in oral arguments on the state’s Motion to Dismiss Plaintiffs’ Substitute Complaint (actually filed back in August by Governor Hickenlooper and Attorney General Suthers – read more for analysis of the state’s Motion to Dismiss).
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 (such as the TABOR amendment) 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.
However, Judge Martinez appears disinclined to honor the Supreme Court precedent, based on his statements during the hearing. As reported in the Denver Post,
U.S. District Judge William Martinez – while not ruling Wednesday – disagreed with key arguments presented by Colorado Attorney General John Suthers’ office in its defense of TABOR. Martinez flatly opposed the notion that a century-old Oregon decision settled issues around the present-day case.
On what grounds? After all, as the state’s attorney (Assistant Attorney General Megan Paris Rundlet) argued, ”The (Oregon) case does present almost precisely the same issues that are before this court.”
The Denver Post article (Judge questions precedent cited to defend Colorado’s TABOR) continues:
“That’s not how I see it,” Martinez replied, saying the Oregon case involved a challenge of the initiative process itself, while the lawsuit before his court was a challenge of an initiative’s result – in this case TABOR.
“It’s clear the plaintiffs are not challenging the citizens’ initiative ballot process in Colorado,” Martinez said. “If your argument is this case is the same case as (in the Oregon ruling) … I don’t see it that way.”
However, Judge Martinez – either intentionally or erroneously – appears to be misreading the case, since (as noted above) the Oregon ruling did NOT simply deal with the issue of the initiative process, but with the larger question of judicial review of the “Guarantee Clause” and the “republican character” of state government more generally.
Unfortunately, although it may be weeks or even months before Judge Martinez issues his ruling on the state’s Motion to Dismiss Plaintiffs’ Substitute Complaint, based on his comments and statements during the hearing, it appears likely that the case will continue to trial, and may ultimately end up before the United States Supreme Court – since overturning a state constitutional amendment by judicial fiat would have immense implications for the citizens’ initivative process and the right of the people to limit government power by constitutional limits nationwide.
If “We The People” cannot set constitutional limits on government power, then the very founding principles of this nation – indeed, the foundations of Liberty itself – are at risk.
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.
2011 Year in Review: Colorado Courts Continue to Play Politics
Colorado Courts Continue to Play Politics in 2011…
Another tumultuous year has come and gone for the Colorado judiciary – and once again, Colorado Citizens and taxpayers have been hammered by the gavels of Colorado judges pounding their personal preferences over the will of the people – and the rule of law.
Last year closed with Colorado being declared a “judicial hellhole” by a national judicial evaluation organization (one of only three state supreme courts nationwide to qualify for the “honor”, joining Michigan and perennial favorite West Virginia in being so recognized). The 2011 legislative session failed in repealing all but two of 2010’s unconstitutional “Dirty Dozen” tax increases (facilitated by the Colorado Supreme Court) or the even more onerous 2009 “FASTER” Colorado Car Tax legislation (aided and abetted by yet another anti-constitutional ruling by the Colorado Supreme Court’s “Mullarkey Majority” enabling taxes to masquerade as “fees”), and even almost passed another tax increase (the “movie-ticket tax“) attempting to exploit the court’s creation of anti-TABOR “loopholes.”
Spring and Summer was dominated by legislative battles over congressional redistricting (sadly, the state senate reprised the 2000 playbook of abdicating responsibility to send it to the courts) and the Colorado Reapportionment Commission’s public hearings on re-setting the boundaries of our state legislative districts. Both issues came to a head in court battles during the Fall, with the Colorado Supreme Court’s ultimate decision in both cases (determining the political shape of Colorado for the next decade) coming in early December (December 5th & December 12th, respectively).
Colorado courts were also a central battlefield for Education policy, as one Denver District judge threw out Douglas County’s attempts to enable greater school choice, and another Denver District judge declared the state system of funding schools “unconscionable” while advancing the power of the courts to determine “proper” levels of school funding (despite the Constitution’s delegation of that power to the legislative branch) – although that decision is likely to be overturned after an expensive (and long) appeal to the Colorado Supreme Court.
In fact, 3 out of 4 “Top Colorado Political Stories of 2011” directly involve Colorado’s politicized judiciary (and the remainder, the voter rejection of tax increases at the ballot box, is juxtaposed against yet another court-approved tax increase the day before the vote):
- Redistricting/Reapportionment
- Failure of Prop 103
- Lobato decision
- Douglas County school vouchers
Cases such as Lobato – particularly Rappaport’s biased ruling – and the politicized nature of the court’s involvement in the congressional redistricting and state legislative reapportionment cases – highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government. Our courts have an important – even vital – role to play in our society and system of government. Deciding issues of policy – instead of fairly and impartially upholding the law – is not it.
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.
State Education Board joins Governor Hickenlooper in bipartisan appeal of Denver judge’s ruling on Lobato school-funding lawsuit
Colorado’s State Board of Education voted 4-3 Tuesday morning to appeal Denver District Court Judge Sheila Rappaport’s ruling against the state in the Lobato school funding lawsuit. Colorado Governor John Hickenlooper had officially announced last Wednesday* that the state would appeal Denver District Court Judge Sheila Rappaport’s ruling that the state’s education funding is not “thorough and uniform” as referenced in constitutional language (Colorado Constitution, Article IX, Section 2). Rappaport’s 183-page ruling also paved the way for court-ordered tax increases, stating:
“It is also apparent that increased funding will be required.”
The state education board’s decision to appeal the Lobato ruling is significant because although the board’s vote to appeal Rappaport’s ruling was decided on a party-line basis (Education News Colorado)
(SBE’s four Republicans, Bob Schaffer, Marcia Neal, Paul Lundeen and Deb Scheffel, voted for appeal while Democrats Elaine Gantz Berman, Jane Goff and Angelika Schroader voted no)
the board joins Democrat Governor John Hickenlooper and Republican Attorney General John Suthers in a broad, bipartisan coalition of state elected officials seeking to overturn judicial usurpation of executive and legislative authority.
Governor Hickenlooper and Attorney General Suthers had earlier warned of “devastating” consequences for the state if the Lobato plaintiffs were successful in forcing additional school spending.
Although the lawsuit (and Rappaport’s ruling) is likely to be overturned (thanks to the departure of former Chief Justice Mullarkey and the more recent resignation of Justice Alex Martinez, 2 of the original 4 votes keeping the Lobato lawsuit alive in 2009 are now gone), appealing the case will cost Colorado taxpayers plenty:
[Mike] Saccone [spokesman for the attorney general's office] said the legislature has appropriated up to $3.5 million to defend the state against the suit.
This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).
If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.
The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.
Read more about the Lobato school funding case in these articles:
- “Judicial Overreach” (Pueblo Chieftain editorial, 14 December 2011)
- “Judge Sets Constitution Aside in School Finance Ruling” (Audio, Education Policy Center, 12 December 2011)
- “Victory for Lobato Plaintiffs” (Education News Colorado, 9 December 2011)
- “Lobato case primer” (Education News Colorado, 11 August 2011)
- “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
- “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)
- “Lobato education-funding budget-buster aided & abetted by Colorado Supreme Court” (8 August 2011)
The Attorney General’s office has also compiled a full list of key pleadings and court decisions in the Lobato case.
Cases such as Lobato – particularly Rappaport’s biased ruling – highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government. Our courts have an important – even vital – role to play in our society and system of government. This is not it.
* Governor Hickenlooper responded to a question at a 13 December 2011 town hall event about Lobato that he was leaning towards an appeal, since the court’s ruling “clearly violated TABOR” and Colorado voters had recently rejected a tax increase purportedly targeted for education funding (Prop. 103).
The Constitution says we can’t raise taxes without a vote of the people – the people just voted specifically on more revenues for education, and the people pretty clearly voted 2-to-1 that this was a bad idea. So how can the courts say that we should do it?
Governor Hickenlooper clearly disagreed with Rappaport’s ruling, and clearly expects to win on appeal, since the alternative would plunge the state into a constitutional crisis:
“Let’s say that the Supreme Court agrees with the district court – if that’s the case, then we’ve got the Constitution versus the Supreme Court.”
Listen to audio update on the Lobato appeal (playing this week on 560KLZ The Source)
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.
Friday Funnies: …and a Leftist Judiciary! (reprise)
Welcome to the 2011 Christmas edition of the Clear The Bench Colorado Friday Funnies!
Another tumultuous year has come and gone for the Colorado judiciary – and once again, Colorado Citizens and taxpayers have been hammered by the gavels of Colorado judges pounding their personal preferences over the will of the people – and the rule of law.
Last year closed with Colorado being declared a “judicial hellhole” by a national judicial evaluation organization (one of only three state supreme courts nationwide to qualify for the “honor”, joining Michigan and perennial favorite West Virginia in being so recognized). The 2011 legislative session failed in repealing all but two of 2010′s unconstitutional “Dirty Dozen” tax increases (facilitated by the Colorado Supreme Court) or the even more onerous 2009 “FASTER” Colorado Car Tax legislation (aided and abetted by yet another anti-constitutional ruling by the Colorado Supreme Court’s “Mullarkey Majority” enabling taxes to masquerade as “fees”), and even almost passed another tax increase (the “movie-ticket tax“) attempting to exploit the court’s creation of anti-TABOR “loopholes.”
Spring and Summer was dominated by legislative battles over congressional redistricting (sadly, the state senate reprised the 2000 playbook of abdicating responsibility to send it to the courts) and the Colorado Reapportionment Commission’s public hearings on re-setting the boundaries of our state legislative districts. Both issues came to a head in court battles during the Fall, with the Colorado Supreme Court’s ultimate decision in both cases (determining the political shape of Colorado for the next decade) coming in early December (December 5th & December 12th, respectively).
Colorado courts were also a central battlefield for Education policy, as one Denver District judge threw out Douglas County’s attempts to enable greater school choice, and another Denver District judge declared the state system of funding schools “unconscionable” while advancing the power of the courts to determine “proper” levels of school funding (despite the Constitution’s delegation of that power to the legislative branch) – although that decision is likely to be overturned after an expensive – and long – appeal to the Colorado Supreme Court.
Although remaining mindful that 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”; defend our property against unjust seizure; bear arms in self-defense; and too many others to list) is serious business, all work and no play makes Matty a dull boy.
Although still awaiting payment a year later after “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) was once again ordered to pay Clear The Bench Colorado thousands of $ in legal fees (owed since the judge’s original ruling in July found their complaint “frivolous, groundless, & vexatious”) brings a rueful chuckle, the following video (even if focused on the national level) elicited a hearty laugh:
…and a Leftist Judiciary!
While still afflicted with the (black-robed) ghosts of Christmas past in our Christmas present, we can still act to save our Christmas future. Continue to support Clear The Bench Colorado with comments (Sound Off!) and contributions. Freedom isn’t free – nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Colorado Governor Hickenlooper announces state will appeal Denver judge’s ruling on Lobato school-funding lawsuit
Colorado Governor John Hickenlooper officially announced Wednesday* that the state would appeal Denver District Court Judge Sheila Rappaport’s ruling that the state’s education funding is not “thorough and uniform” as referenced in constitutional language (Colorado Constitution, Article IX, Section 2). Rappaport’s 183-page ruling also paved the way for court-ordered tax increases, stating:
“It is also apparent that increased funding will be required.”
Rappaport’s 183-page opus spends a mere 10 pages even purporting to address issues of law (the remainder is dedicated to a lengthy exposition of the judge’s views on the educational system and her personal opinions on the worthiness of various witnesses) and fails to address how to enforce funding increases in compliance with other constitutional provisions. As the governor’s statement noted,
“The judge’s decision provided little practical guidance on how the state should fund a ‘thorough and uniform’ system of public education,” said Hickenlooper. ”Moreover, while the judge focused on the inadequacy of state funding, she did not reconcile this issue with other very relevant provisions of the Constitution, including the Taxpayer’s Bill of Rights, the Gallagher Amendment and Amendment 23.”
A Denver Post article (“Gov. Hickenlooper to appeal Lobato education-funding decision to state Supreme Court; state board of education delays its own decision“) also noted the budgetary implications:
The lawsuit seeks no specific sum of money, but plaintiffs have pointed to studies estimating the state is underfunding education by as much as $4 billion.
The state now spends more than 40 percent, or $3.2 billion in the 2010-11 fiscal year that ended in June, of its almost $7 billion general fund on K-12 schools.
Coloradans in November by a two-to-one margin shot down a $3 billion tax increase measure for schools.
Governor Hickenlooper and Attorney General Suthers had earlier warned of “devastating” consequences for the state if the Lobato plaintiffs were successful in forcing additional school spending.
Although the lawsuit (and Rappaport’s ruling) is likely to be overturned (thanks to the departure of former Chief Justice Mullarkey and the more recent resignation of Justice Alex Martinez, 2 of the original 4 votes keeping the Lobato lawsuit alive in 2009 are now gone), appealing the case will cost Colorado taxpayers plenty:
[Mike] Saccone [spokesman for the attorney general's office] said the legislature has appropriated up to $3.5 million to defend the state against the suit.
This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).
If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.
The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.
Read more about the Lobato school funding case in these articles:
- “Judicial Overreach” (Pueblo Chieftain editorial, 14 December 2011)
- “Judge Sets Constitution Aside in School Finance Ruling” (Education Policy Center, 12 December 2011)
- “Victory for Lobato Plaintiffs” (Education News Colorado, 9 December 2011)
- “Lobato case primer” (Education News Colorado, 11 August 2011)
- “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
- “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)
- “Lobato education-funding budget-buster aided & abetted by Colorado Supreme Court” (8 August 2011)
The Attorney General’s office has also compiled a full list of key pleadings and court decisions in the Lobato case.
Cases such as Lobato – particularly Rappaport’s biased ruling – highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government. Our courts have an important – even vital – role to play in our society and system of government. This is not it.
* Governor Hickenlooper responded to a question at a 13 December 2011 town hall event about Lobato that he was leaning towards an appeal, since the court’s ruling “clearly violated TABOR” and Colorado voters had recently rejected a tax increase purportedly targeted for education funding (Prop. 103)
The Constitution says we can’t raise taxes without a vote of the people – the people just voted specifically on more revenues for education, and the people pretty clearly voted 2-to-1 that this was a bad idea. So how can the courts say that we should do it?
Governor Hickenlooper clearly disagreed with Rappaport’s ruling, and clearly expects to win on appeal, since the alternative would plunge the state into a constitutional crisis:
“Let’s say that the Supreme Court agrees with the district court – if that’s the case, then we’ve got the Constitution versus the Supreme Court.”
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.
Colorado Supreme Court approves 40% tax increase
Although Colorado voters decisively repudiated a recent attempt to raise taxes at the ballot box this week (the “Proposition 103″ tax increase initiative, which at least did seek “voter approval in advance” as required by the Colorado Constitution, Article X, Section 20 – the ‘Taxpayer’s Bill of Rights’), on the day before votes were tallied, the Colorado Supreme Court approved what may have been the largest (percentage) tax increase in the history of Colorado – increasing a severance tax (on energy production) by over 40%.
Sadly, this latest ruling only continues a pattern of judicial assault on the rights of Colorado taxpayers that is both politically motivated (the court’s majority has frequently expressed antipathy towards the Colorado Constitution’s Article X, Section 20 – the ‘Taxpayer’s Bill of Rights’ – despite their oath to support and uphold the entire Constitution, not just the parts they like) and entirely predictable. (Indeed, Clear The Bench Colorado forecast the court’s decision over a year ago in this article):
Colorado Supreme Court prepares additional assault on taxpayer rights, hearing another stealth tax increase case (31 August 2010)
The Colorado Supreme Court’s ‘Mullarkey Majority’ has now gone 0-16 in upholding TABOR, a “perfect season” establishing them as the 2008 Detroit Lions of jurisprudence
(Mullarkey’s replacement, Monica Marquez, recused herself from the decision due to her role as a former Deputy Attorney General arguing the case for violating taxpayer’s rights before the Court of Appeals)
Some of the most prominent examples of the court’s “perfect” record:
- ‘Mill Levy Tax Freeze‘ property tax increase (calling the tax increase a “rate freeze”)
- ‘Dirty Dozen‘ tax increases (2010) and the 2009 tobacco tax increase (calling tax increases “elimination of Tax Credits & Exemptions“)
- ‘Colorado Car Tax’ (enabling tax increases by calling them “fees” instead of taxes)
Following the pattern of earlier anti-TABOR decisions, the majority opinion tortures statutory language to extract a tenuous justification for a constitutional end-run in favor of tax increases, overturning a Colorado Court of Appeals ruling that was a model of clarity and conciseness in legal language:
so simple, even a caveman could understand it:
We hold that TABOR precludes the challenged coal severance tax adjustments. Our holding is based on a simple syllogism:
(1) TABOR prohibits increasing tax rates without voter approval. Colo. Const. art. X, § 20(4)(a); Nicholl v. E-470 Public Highway Auth., 896 P.2d 859, 867 (Colo. 1995).
(2) Applying the statutory formula increased the coal severance tax rate (initially from $0.54 to $0.76 per ton) without voter approval.
(3) Therefore, TABOR was violated.
So how did the Colorado Supreme Court get around this clear, concise language?
The ruling majority declared that the tax increase was merely an “adjustment” to the “tax rate formula” that the statutory language “required” the Department of Revenue to increase – a “non-discretionary” mechanism (despite the undisputed fact that the Department of Revenue did exercise discretion – and complied with the Constitution by not raising the rate – for 15 years previously). The majority likewise ignored the well-established legal principle that constitutional language trumps statutory language, as Justice Coats pointed out in his dissent:
Not only is TABOR a constitutional provision to which legislative acts are subservient, rather than merely another statute itself, but its intent to limit the legislative taxing power by subjecting it directly to popular approval, see Bickel v. City of Boulder,885 P.2d 215, 226 (Colo. 1994), and to ‘s upersede” all conflicting state statutes could not be more clear, see Colo. Const. Art X, sec. 20 (1) (“All provisions are self-executing and severable and supersede conflicting state constitutional, state statutory, charter, or other state or local provisions.”). Starting November 4, 1992, the state is expressly required to have voter approval in advance for any tax rate increase that does not fall within a TABOR exception.
Colo. Const. Art X, sec. 20(4)(a). The language of TABOR simply does not admit of any construction permitting future tax rate increases without the constitutionally required voter approval, whether or not they were mandated by statutes enacted before the constitutional amendment, and this court has never suggested otherwise.
Despite the clearly-expressed intent of the voters, both in decisively repudiating a tax increase at the polls (in 2011) and in establishing constraints of the power of government to arbitrarily and without asking raise taxes (or “increase revenue” by any “tax policy changes”) by adopting a constitutional amendment (the “Taxpayers Bill of Rights” in 1992), the Colorado Supreme Court continues its unbroken streak of raising taxes by judicial decree, usurping the power and authority both of the legislature and of “We The People” – the ultimate sovereigns.
As Justice Coats made clear in his dissent:
It simply strains credulity beyond the breaking point to assert, as does the majority, that raising the tax on every ton of extracted coal from fifty-four to seventy-six cents is not a tax rate increase.
A tax increase by any other name (be it “elimination of existing exemption“, “fee“, or now “adjustment“) still smells as foul.
A violation of your right to have a say before having your money taken from you is just as bad (arguably, much worse) coming from the courts as coming from the executive or legislative branches - your wallet can’t tell the difference.
Know your rights – as a Citizen – and defend them.
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.
“Adequate Funding” unrelated to available state funds? Colorado judge rules out relevant evidence
The Lobato v. Colorado school funding lawsuit concluded its fifth and final week in trial court in Denver last Friday – with plaintiffs seeking
billions of dollars of additional funding for schools, though it’s unclear where that extra money would come from. (Denver Post, “Colorado school funding trial enters likely final week“)
This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).
Plaintiffs scored a major victory when Denver District Judge Sheila Rappaport ruled to exclude evidence on the state’s budget and fiscal situation, as well as evidence on relevant constitutional provisions including the Taxpayer’s Bill of Rights (TABOR) and the Gallagher Amendment (restricting property tax collections).
According to an article in last weekend’s Pueblo Chieftain (“State’s pocketbook won’t figure in schools suit“),
Kathy Gebhardt, a lawyer for plaintiffs in Lobato v. the state of Colorado, told the education collective Colorado School Finance Project on Friday that exclusion of evidence related to the state’s budget condition was a key victory for her side in five-week trial that concluded last week.
Gebhardt said her legal team filed the motion “thinking that we probably had a 5 or 10 percent chance of winning on that, and we won, which pretty much I think gutted a big part of the state’s defense.”
In lawsuits challenging the adequacy of school funding in other states, plaintiffs rarely have sought similar rulings.
Although Judge Rappaport “does not expect to rule on the case for at least another month” the preliminary rulings do not bode well for the state, which “cannot afford to lose.”
A court ruling in favor of the plaintiffs could not only precipitate a constitutional crisis, but lead to a fiscal and budgetary train wreck of epic proportions. Indeed, as Governor Hickenlooper correctly points out, the consequences for Colorado would be “devastating.”
If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.
The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.
Read more about the Lobato school funding case in these recent articles:
- “Lobato case primer” (Education News Colorado, 11 August 2011)
- “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
- “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)
These cases highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government. Our courts have an important – even vital – role to play in our society and system of government. This is not it.
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.
Defending the Constitution – Why 9/11 still matters today (10 years later)
“It is Tuesday morning, the 11th of September… and you will not forget this date.”
(TV reporter, unknown, reporting from NYC as events unfolded on the morning of 9/11…)
10 years ago today, the most horrific attack ever carried out on American soil claimed the lives of thousands of Americans, making clear that “there’ll be no shelter here – front lines are everywhere.”
Looking back, it occurred to me that I’ve since spent most anniversaries of that fateful Tuesday morning – forever burned into the American psyche as, simply, 9/11 – on duty away from home.
2002: Afghanistan; 2003: Fort Benning, Georgia; 2005: Operation Katrina (hurricane disaster relief/recovery operations); 2006: Fort Bragg, North Carolina; 2009: Camp Williams, Utah; and now this year, 2011: Fort Indiantown Gap, Pennsylvania.
My experience in this regard is hardly unique – indeed, I’ve spent less time on duty away from home than many others who proudly wear the uniform – a mere token of service willingly rendered in defense of our nation, and the Constitution we are sworn to support and defend.
Sadly, many of the men and women in uniform serving on that day and since – military, NYC Police & Port Authority, and FDNY - are not “invited” to the 10th anniversary of 9/11 at Ground Zero ’due to “lack of room”. Funny – they weren’t “invited” on that fateful day in 2001 either – they just “showed up” and did what needed to be done.
However, America isn’t about the politicians, officials, and various muckety-mucks who’ll be pontificating at that “official” event and others.
America is about the brave people – often bearing only the proud title of “Citizen” – who just “show up” to do what needs doing.
Defending the Constitution – Why 9/11 still matters today (10 years later)
Clear The Bench Colorado joins millions of Americans across the country in somber remembrance of the 9/11 attacks on our nation.
What does this have to do with holding our Colorado Supreme Court justices accountable to the rule of law and the Colorado Constitution? Quite a lot, actually…
As a proud veteran of the U.S. military (including service in the Colorado Army National Guard), I take my oath of enlistment – “I will support and defend the Constitution of the United States and the State of Colorado [emphasis added] against all enemies, foreign and domestic” - seriously; very seriously.
Many of our elected (and unelected) officials seem to have a much more cavalier attitude towards their own oath of office.
Colorado Supreme Court justices also swear a similar oath on taking office, which begins:
“I will support the Constitution of the United States and the Constitution of the State of Colorado.”
Note that the judicial oath of office does not state “I will support only those parts of the Constitution that I like or with which I personally agree or empathize.”
Yet the Mullarkey Court has consistently ruled against the Colorado Constitution’s Article X, Section 20 (TABOR) in every case it has heard – despite the clear intent and letter of the law that “[i]ts preferred interpretation shall reasonably restrain most the growth of government.”
The Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, Chief Justice Mary Mullarkey) are oathbreakers – and dishonor the service of the men and women of the United States military and law enforcement agencies who put their lives on the line to support and defend our Constitution. They have proven themselves unworthy of the high office they occupy.
Another important lesson of 9/11 is that individuals matter – and fighting to defend your rights, and your lives, is the only way to preserve your rights (and your life, in extremis) when under attack. The true heroes of that day were not only the firefighters but also the ordinary citizens who acted to save lives – and the brave passengers on Flight 93 who fought back against the hijackers on the 4th plane and died not as victims, but as American heroes.
We can no longer be under any illusion – as the passengers on Flight 93 discovered – that our rights and lives are NOT under attack; we are threatened by enemies both foreign and domestic. The nature of the threat (and appropriate response) is different, but the need to take action, to defend your rights – remains the same.
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.
Last Week in Lobato Trial – will courts decree new school taxes?
The Lobato v. Colorado school funding lawsuit enters its fifth and (likely) final week in trial court in Denver this Monday – with plaintiffs seeking
billions of dollars of additional funding for schools, though it’s unclear where that extra money would come from. (Denver Post, “Colorado school funding trial enters likely final week“)
This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).
Despite the lack of correlation between spending and performance – and despite the failure of court-imposed school funding increases in several states (including Colorado neighbors Kansas and Wyoming) to achieve increased school performance, despite revenue and spending increases -
In Colorado, where per-pupil spending was $8,782 in 2008-09, students often outperformed students in Wyoming, where funding – following a school finance lawsuit – was $14,268 per pupil.
plaintiffs continue to seek additional money that the state simply does not have. A court ruling in favor of the plaintiffs could not only precipitate a constitutional crisis, but lead to a fiscal and budgetary train wreck of epic proportions. Indeed, as Governor Hickenlooper correctly points out, the consequences for Colorado would be “devastating.”
If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.
The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.
Read more about the Lobato school funding case in these recent articles:
- “Lobato case primer” (Education News Colorado, 11 August 2011)
- “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
- “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)
These cases highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government. Our courts have an important – even vital – role to play in our society and system of government. This is not it.
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.
Colorado Supreme Court Justice Alex Martinez announces impending resignation, takes city job in Denver
Colorado Supreme Court Justice Alex Martinez unexpectedly announced earlier today (Wednesday, August 24th 2011) that he intends to resign his seat on the state’s highest court in order to take a job with the City of Denver as Manager of Safety.
Justice Martinez, who was retained in office November 2010 with the lowest percentage of “retain” votes for an incumbent state supreme court justice in Colorado history (59%, narrowly edging current Chief Justice Michael Bender’s 60% and Justice Nancy Rice’s 62% for “worst ever;” incumbent supreme court justices are typically retained with 75-80% of the vote) could have continued to hold office for another decade.
Clear The Bench Colorado considers it a win for Colorado – and the damaged reputation of the Colorado judiciary – that he will not.
At the risk of once again being called “the skunk at the garden party” by the Denver Post, we point out the “troubling legacy” of Justice Martinez’s tenure on the bench (much as the “troubling legacy” of resigning Chief Justice Mary Mullarkey was reviewed at the time of her resignation – by the Post).
Justice Martinez was in fact one of the most reliable members of the highly political “Mullarkey Majority”, joining in or writing all of the key decisions over the past decade that made a mockery of constitutional jurisprudence in Colorado:
- Joining in the 2003 Salazar v. Davidson majority, Martinez helped perpetrate a judicial power grab as the courts conducted Congressional redistricting despite clear constitutional language reserving that power to the ’General Assembly’ and defining the General Assembly as “consisting of a senate and house of representatives.”
- Justice Martinez authored the blatantly political decision to keep a citizen’s initiative to restrict taxpayer funding of services to illegals (Initiative 55) off the 2006 ballot based on an “elastic definition” of the single-subject rule. Even the Denver Post (which vehemently opposed the initiative) decried the ruling. Former Democrat Governor Dick Lamm panned the court as “Politicians in Black Robes“, saying “This is not justice; it is politics – of the worst kind.”
- Justice Martinez joined Justice Michael Bender’s politically-derived opinion allowing unions to skirt Colorado campaign finance laws in the 2008 CEA v. Rutt case, overturning the Colorado Court of Appeals which had held (correctly) that unions made illegal contributions when they coordinated their activities with a candidate’s campaign.
- Justice Martinez joined in Colorado’s version of the infamous Kelo eminent domain abuse case, the 2008 “Telluride Land Grab” (Telluride v. San Miguel), authorizing government taking of private property via eminent domain – despite contrary statutory language and despite the fact that the property taken was outside the jurisdiction of the seizing authority.
- Justice Martinez joined the majority in the Nov. 2008 Barber v. Ritter decision which declared that “fees are not taxes” as long as they are called “fees” – laying the groundwork for the notorious and regressive Colorado Car Tax (“FASTER”) tax (er, “fee”) increase.
- Justice Martinez joined the Mullarkey Majority on the infamous March 2009 “Mill Levy Tax Freeze” (Mesa County v. Colorado) ruling which deprived Coloradans of their constitutional right to vote on tax increases, and also eliminated constitutional protections for existing tax credits and exemptions (leading to the “Dirty Dozen” tax increases passed by the legislature the following year).
- In a case with significant and still unfolding implications for Colorado (Governor Hickenlooper recently described the potential consequences as “devastating”), Justice Martinez joined in overturning two lower courts holding (again, correctly) that educational funding policy was not a matter for the courts to decide in the 2009 Lobato v. Colorado case.
- Just days before the Nov. 2010 election, Justice Martinez joined “in one of those quirky rulings for which it is now notorious, reversed the conviction of a man who used another person’s Social Security number to obtain an auto loan.“
- After the election, it didn’t get any better, as Justice Martinez joined in creating a windfall for personal injury trial lawyers (the “ambulance-chaser” set) in the late-November (28th) 2010 Volunteers of America v. Gardenswartz case. (That ruling was apparently the straw breaking the camel’s back for a national association evaluating state courts, which added Colorado to the list of jurisdictions nationally qualifying as a “judicial hellhole”).
Justice Martinez’s legacy on the Colorado Supreme Court is indeed “troubling” – as noted in the Evaluations of Judicial Performance published prior to the November 2010 election.
While we bear Justice Martinez no personal animosity (by all accounts, he’s a nice guy) and wish him the best in his future endeavors as Denver Manager of Safety, we greet his departure from the Colorado Supreme Court with favor and look forward with guarded optimism to welcoming a new Colorado Supreme Court justice dedicated to upholding the Colorado Constitution and restoring the rule of law.
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.