tax exemptions
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.
Life in the FASTER lane – updates on the Colorado Car Tax
Surely make you lose your mind…
The Colorado Car Tax (er, “fee”) increase – ironically dubbed ‘FASTER’ – passed in the 2009 legislative session made another lap in media coverage this past week with a broadcast on the ‘Devil’s Advocate‘ television program and publication of a pair of “Issue Backgrounder” papers.
The “Issue Backgrounder” papers each address a specific aspect of the FASTER legislation, focusing in on the “Bridge Enterprise” (a ‘government-owned business’ within the Colorado Department of Transportation, or CDOT). One paper addresses how the “Bridge Enterprise” has raised $300M in debt without (constitutionally-required) voter approval (and the long-term implications for Colorado’s fiscal stability); the other more generally addresses how the Colorado Bridge Enterprise contravenes the Colorado Constitution.
Both papers are well worth reading, and provide additional detail on just how bad even this single aspect of the FASTER Colorado Car Tax (er, “fee”) is for Colorado citizens.
However, both papers together only tell half of the story (almost literally). The ‘Colorado Bridge Enterprise’ is only one of two new ‘government-owed businesses’ established by the FASTER legislation (the other being the ‘Colorado Transportation Enterprise’ charged with collecting and spending the ‘road safety surcharge’ tax – er, “fee”) . Both “enterprises” are overseen by an 11-member appointed (ergo, unaccountable to the public) board (coincidentally, the same 11 people who make up the Colorado Transportation Commission). Significantly (although unfortunately unremarked in both papers), both ‘enterprises’ are also authorized to use eminent domain to seize private property.
The television broadcast is informative and entertaining as well, but unfortunately also misses significant parts of the story.
The Colorado Car Tax – It’s Worse Than You Think
Also unremarked in both papers – and on the television broadcast as well – is the fact that FASTER actually comprises multiple tax increases (er, “fees”) in a single piece of legislation, blatantly violating the constitutional requirements to “receive voter approval in advance” for “any new tax, mill levy above that for the prior year, valuation for assessment ratio increase for a property class, or extension of an expiring tax, or a tax policy change directly causing a net tax revenue gain to any district.” (Colorado Constitution, Article X, Section 20 – the ‘Taxpayer’s Bill of Rights’). The “bridge fund fee” and the “road safety surcharge fee” increase each year for three years (yep, that’s 3 tax increases in one!), in addition to imposing an entirely separate “fee” on car rentals as well. Oh, and don’t forget the “late fees” too…
But all of this is necessary “to preserve our crumbling transportation infrastructure,” right? That was the justification for passing the bill – along with claims that any and all “fees” collected “shall be used exclusively for the construction, maintenance, and supervision of the public highways of the state.” Says so right in the legislative language (43-4-810), so it must be true, correct?
Not so much. The dirty little secret of the FASTER bill is that many of the taxes (er, “fees”) collected don’t go towards the construction or maintenance of roads or bridges at all, but for “multi-modal and demand-side transportation solutions” – such as the desire of certain state Senators for streetcars in Denver – justified by other language in a following section (43-4-812):
43-4-812. Use of user fees for transit – legislative declaration.
(2) THE GENERAL ASSEMBLY HEREBY FINDS AND DECLARES THAT THE FUNDING OF TRANSIT-RELATED PROJECTS AUTHORIZED BY SUBSECTION (1) OF THIS SECTION CONSTITUTES MAINTENANCE AND SUPERVISION OF STATE HIGHWAYS BECAUSE IT WILL HELP TO REDUCE TRAFFIC ON STATE HIGHWAYS AND THEREBY REDUCE WEAR AND TEAR ON STATE HIGHWAYS AND BRIDGES AND INCREASE THEIR RELIABILITY, SAFETY, AND EXPECTED USEFUL LIFE.
In fact, the bill MANDATES state spending of $10 Million per year on “transit-related projects.”
It’s an outrageous semantic shell game – and a blatant violation of your constitutional rights.
To sum up: the “FASTER” car tax increase raised vehicle registration fees by $22.50-55 per vehicle, including a “road safety surcharge fee” of $16-$39 per vehicle, PLUS a “bridge fund fee” of $13-$32 per vehicle (phased in at 50%/75%/100% each of the first 3 years ). Plus mandatory “late fees” of $25/month (capped at $100) – for all “vehicles” (including trailers barely even worth that much).
All while creating two new ‘government-owned’ bureaucracies with power to spend, borrow, & seize private property unconstrained by the Taxpayer’s Bill of Rights and not accountable to the people.
Oh, and increasing mandatory spending by over $10 Million per year on purposes other than roads, bridges, or other transportation infrastructure used by those paying the “fees.”
Most of the politicians who did this to you – including Governor Bill Ritter, Senate sponsor Dan Gibbs, and House sponsor Joe Rice – have paid the political price, either quitting office or being defeated at the ballot box; however, the real culprits, without whom none of this would have been possible (thanks to a Nov. 2008 court ruling to allow “fees” to act like taxes, in violation of your constitutional rights) escaped justice (except for Chief Justice Mary Mullarkey, who quit rather than face the voters, the remaining members of the Colorado Supreme Court who aided and abetted FASTER were retained in office for another 10-year term).
Unfortunately, these politicians in black robes remain ‘at large’ and able to continue to assault your constitutional rights for years to come.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Friday Funnies – Sarcastic Supremes, and a “Cat Tax” upheld
“If we couldn’t laugh, we would all go insane.” Jimmy Buffet
Nowhere is this more true than dealing with Colorado’s consistently confusing and often arbitrary legal system and out-of-control judiciary – where the ruling majority on the Colorado Supreme Court recognizes no constitutional constraints, no limits to its untrammeled authority, no checks or balances to its power – in their view, the law means “just what I choose it to mean - neither more nor less.” This “Through the Looking Glass” worldview has precious little in common with the justices’ sworn duty to uphold the rule of law – and support (not dismantle) the Constitution.
Although remaining mindful of what’s at stake – holding our judiciary accountable for serial violations of our constitutional rights (to vote on taxes, even when taxes are called “fees”; keep your own property; bear arms in self-defense; and almost too many others to list); highlighting the judiciary’s dominant role in drawing up state legislative and congressional districts; and upholding the integrity of the judicial retention election process against the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench in violation of Colorado campaign finance law – is serious business, all work and no play makes Matty a dull boy.
So – scouring the internet so you don’t have to – Clear The Bench Colorado presents another edition of the Friday Funnies.
From the reliably humorous (if often irreverent) Cracked magazine (online) comes the following list of “5 Awesomely Sarcastic Supreme Court Decisions“:
5. Bertman v. Kirsch (1964) – dealing with government shenanigans concerning notice of appeal (the government filed a notice of appeal late on the due date, leaving respondent no time to file a response within the statutory deadline). What makes it funny? The Supreme Court justice invoking Superman:
“I am aware of the argument that an able, alert, ever-diligent lawyer could have, had he tried hard enough, discovered that the Government had appealed — even in the closing hours of the sixtieth day. I do not doubt that had Bertman’s counsel been Superman, his X-ray eyes would have told him that a notice of appeal was being filed blocks away in the courthouse, or had he been a lawyer with no clients but Bertman he could have spent the sixtieth day hovering at the clerk’s office to see whether the Government would file a notice of appeal. But Bertman’s counsel (so far as the record shows) is not Superman, nor should the law expect him to be.”
4. PGA Tour v. Martin (2001) – in which a golfer sues to be able to use a golf cart instead of walking, under the Americans with Disabilities Act (ADA). What makes it funny? Justice Antonin Scalia, the Supreme Court’s funniest judge (as confirmed by a scientific study) waxes poetic on the “awesome responsibility… of determining the nature of golf.”
“We Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States … to decide What Is Golf. I am sure that the Framers of the Constitution … fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.”
(Scalia’s scathing wit highlights a basic fact: some issues are not – or should not be – justiciable; a fact acknowledged, in dissent, by a Colorado Supreme Court justice in the Lobato school funding case).
3. Pottawatomie School Board v. Earls (2002) – in which the U.S. Supreme Court upheld drug testing for ALL extracurricular school activities (including the marching band and chess club). Why is this funny? Seriously – the chess club on crack? Band geeks blowing bongs? Freaked-out Future Farmers?
Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree.”
2. Los Angeles Board of Airport Commissioners v. Jews for Jesus (1987) – in which the U.S. Supreme Court unanimously ruled that (Surprise!) that “a resolution banning all ‘First Amendment activities’ at Los Angeles International Airport (LAX) violates the First Amendment.” Why is this funny? It’s not, really – except that the Los Angeles Airport Commissioners actually argued otherwise with a straight face.
1. Kyles v. Whitney (1995) – in which defense attorneys argued that testimony of four witnesses against a convicted murderer should be thrown out because “all clearly saw his face but hadn’t all agreed on his exact height and build. Why? One of them had seen Kyles only after he got into his getaway car.” Why is this funny? Once again, it’s the Supreme Court’s funniest justice (Scalia) bringing on the humor with a ‘Lone Ranger’ reference (a metaphorical “silver bullet”, if you will):
To assert that unhesitant and categorical identification by four witnesses who viewed the killer, close-up and with the sun high in the sky, would not eliminate reasonable doubt if it were based only on facial characteristics, and not on height and build, is quite simply absurd. Facial features are the primary means by which human beings recognize one another. That is why … bank robbers wear stockings over their faces instead of floor-length capes over their shoulders; it is why the Lone Ranger wears a mask instead of a poncho; and it is why a criminal defense lawyer who seeks to destroy an identifying witness by asking ‘You admit that you saw only the killer’s face?’ will be laughed out of the courtroom.”
Finally, demonstrating that government’s claim to authority to tax every living creature earning a living is quite literal comes this story of a court upholding the power to impose an occupational tax – on a cat.
Yes, that’s right – in the 1982 case of Blackie the talking cat (Miles v. City Council, 1982), the courts upheld the authority of the city of Augusta, Georgia to “impose an “occupation tax” on the plaintiffs [Blackie and his human "guardians"].
Sadly, judicial abuses of your constitutional rights are no laughing matter. Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of unrestrained activism and political agendas in the courts. We will continue to work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” judicial review process to increase transparency and accountability to the public, and to provide substantive and useful evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Friday Funnies: …and a Leftist Judiciary!
Welcome to the 2010 Christmas edition of the Clear The Bench Colorado Friday Funnies!
In all of the tumult, toil, and trouble of the weeks leading up to the 2010 judicial retention elections (and in the weeks following), Clear The Bench Colorado has been far too serious, falling short in our mission to amuse, in addition to our successful mission to educate & inform (as 9News reporter Adam Schrager recently commented at a forum evaluating this year’s election coverage, “the information was there if voters chose to get it” (referring in particular to Clear The Bench Colorado Director Matt Arnold’s appearance on the Your Show television program) and CTBC’s Evaluations of Judicial Performance. Sadly, it’s been almost three months since the last edition of the CTBC Friday Funnies!
Although remaining mindful of what’s at stake – holding our judiciary accountable for serial violations of our constitutional rights (to vote on taxes, even when taxes are called “fees”; keep our own property; bear arms in self-defense; and almost too many others to list); highlighting the judiciary’s dominant role in drawing up state legislative and congressional districts; and upholding the integrity of the judicial retention election process against the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench in violation of Colorado campaign finance law – is serious business, all work and no play makes Matty a dull boy.
While receiving the news earlier this week that “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) was 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, and vexatious”) brought a smile, the following video clip (although targeting 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 Supreme Court ruling produces plaintiff windfall
Last week’s Colorado Supreme Court ruling in the Volunteers of America v. Gardenswartz case created a windfall win for personal injury trial lawyers (the “ambulance-chaser” set) and incidentally, some of the clients they represent, in collecting damage reimbursements above and beyond amounts actually paid.
The Colorado Supreme Court’s “Mullarkey Majority” (yes, Chief Justice Mary Mullarkey wrote the opinion, in what may be her last parting shot at the Colorado Constitution and the rule of law) in a 4-3 decision (joined by usual suspects Michael Bender, Greg Hobbs and Alex Martinez forming the hard core of the “make it up as we go along” crowd) overturned both a lower court and clear statutory language (13-21-111.6. Civil actions – reduction of damages for payment from collateral source) limiting double-dipping damage recovery.
In plain language, the court ruled that plaintiffs (and their lawyers, who typically collect about a third or more of the total “recovered damages”) are entitled to the amount of medical costs originally billed, even if subsequent bargaining or other arrangements reduces the amount actually paid.
As commented in former State Treasurer Mark Hillman’s blog article (“Phantom damages defy law, common sense“), which was also published in today’s Denver Post (as “Damages ruling illogical“):
As Justice Nancy Rice noted in her dissent, the majority fortified its opinion by selectively misquoting a key co-sponsor of the bill, Sen. Al Mieklejohn, who argued, “I don’t think a person ought to collect more than once . . . for hospital costs and things like that.”
Mieklejohn argued that the victim’s insurer should “be allowed to collect” from the at-fault party “to get their money back.” That is, the insurer should be allowed to recover the costs it actually paid. Nowhere did the legislature suggest that the victim had a legitimate claim to a greater amount simply by virtue of buying insurance.
The dissenters, also including justices Allison Eid and Nathan Coats, noted that the majority’s opinion is contrary to “the legislature’s clear intent, the statute’s plain language and sound public policy.”
Why should you care?
Those of us with respect for the rule of law as a matter of principle are outraged at yet another blatant example of judicial “legislating from the bench” in overturning clear statutory language to achieve a desired outcome.
Those of us who believe in a truly independent judiciary free from conflict of interest and potential quid pro quo corruption are concerned that this ruling, by handing over a windfall to the trial lawyers who supported the incumbent judicial majority in retaining office (violating Colorado campaign finance law in the process), further undermines confidence in the courts and the rule of law in our state by raising a perception of potential legal-judicial collusion and quid pro quo corruption).
ALL of us who might receive medical care at some point in our lives (particularly those of us who actually bother to pay for medical insurance) should be concerned about the ruling’s impact on insurance costs (they’ll be going up) and enhanced potential for abusive lawsuits (they’ll increase).
Colorado’s out-of-control state supreme court continues to cost our populace millions (from upholding unconstitutional tax increases, re-defining other tax increases as “fees”, abuse of property rights, and now one more example of civil tort abuse run amok).
Unfortunately, Colorado voters failed to take advantage of their once-in-a-decade opportunity to hold these particular ‘unjust justices’ accountable for the actions – but the fight to reform Colorado’s corrupt legal/judicial complex continues. Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for violations of Colorado campaign finance law. Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public. For both of those endeavors, we would appreciate your continued support – via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Judicial Performance Review Commission charged with bias
In a development which should come as no shock to astute observers of Colorado’s “judicial merit selection and retention” system, the state’s 10th Judicial District performance review commission has been charged with bias in conducting “reviews” of judges in the district, as reported in a Pueblo Chieftain newspaper article (“Officials stand behind performance commission“) earlier this week.
Also unsurprisingly, as reported in the same story,
The powerful entities atop state government that appointed members of the 10th Judicial District judicial performance commission are standing behind their appointees…
Who are the “powerful entities” in question?
House Speaker Terrance Carroll, D-Denver, appointed Karn. Outgoing Colorado Supreme Court Chief Justice Mary Mullarkey appointed Naranjo and Esquibel. Senate President Brandon Shaffer, D-Longmont, appointed Vigil.
The 10th Judicial Commission members in question – all Democrats, appointed by Democrats (including Mullarkey) voted to recommend against retention for Judge Jill Mattoon (a Republican, although appointed by Democrat Governor Bill Ritter – who has actually appointed several good judges).
Although it is possible that “There is no reason to believe that this recommendation was the result of anything but the conscientious work and sound judgment of the commission as a whole,” there is conversely no reason not to believe otherwise. Without evidence either way, it’s a matter of dueling opinions.
Since the deliberations of the commission, and basis for their recommendation, are not transparent to the public, suspicions of partisan or institutional bias (in addition to being Democrats, the commissioners in question “have or have had ties to the public defender’s office and another is a criminal defense lawyer”) have been raised by numerous individuals – including Judge Mattoon herself (who, incidentally, was retained in office).
Overall, the “judicial performance review commissions” (at both the district and state level) demonstrate a consistent ‘pro-incumbent’ (pro-”retain”) bias; over the entire history of the existence of the “review” commissions, only 16 judges have EVER been recommended for a “do not retain” vote (that’s an endorsement of over 99% for judicial incumbents), ALL at the district level or below. At the state level, the commission has recommended to “retain” the incumbent every single time they’ve issued a review (a 100% “retain” recommendation that would make even Fidel Castro or Saddam Hussein envious).
Allegations of bias have been raised in nearly every instance in which the commissions have issued a “do not retain” recommendation.
The main problem with the judicial performance review commissions is a lack of transparency and accountability along with a lack of substantive, documented evaluation. Voters are simply urged to accept at face value whatever recommendations the commissions put forth, without any insight into the process or possible bias of any commissioners (indeed, most often lacking any substantive information whatsoever on which to base an informed decision).
Clear The Bench Colorado has long been critical of the lack of substantive information provided by the “Judicial Performance Review” commissions (c.f. Accountability, Transparency apply to the Colorado Supreme Court, too) as have other independent analysts (for example, this article published by the Denver Post, “Evaluating the performance of justices“, back in February).
Colorado Citizens deserve better. Most importantly, Clear The Bench Colorado agrees with critics of the commission “reviews” (see “Judging Colorado’s Supreme Court justices” letter to the editor) 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, judges (at all levels) on the ballot.
Perhaps it’s time for the legislature – or citizen initiative – to address much-needed system reform in our judiciary.
The fight to reform Colorado’s corrupt legal/judicial complex continues. Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for violations of Colorado campaign finance law. Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public. For both of those endeavors, we would appreciate your continued support – via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Late-breaking news coverage of “Know Your Judge” consortium violations of Colorado campaign finance law
Arriving somewhat late to the party, but nonetheless providing decent coverage of the issue, the Denver Post joined in the coverage of the campaign finance complaint against the “Know Your Judge” consortium with an (online-only) article late Tuesday afternoon (“Clear the Bench files campaign finance violation claim“). Following Monday’s Westword article (“Clear the Bench Colorado’s Matt Arnold on campaign complaint about KnowYourJudge.com“) and last Friday’s initial coverage of the blockbuster campaign finance complaint (at up to $500,000 in penalties and fines, potentially the largest in Colorado history) against the Know Your Judge consortium by Law Week Colorado and Face The State, the Denver Post article was the first to obtain a comment from any of the groups directly involved.
“We are having our attorneys look at it …. we will respond accordingly,” said Charles Turner, COBAR executive director. “I can say that the Bar Association has a relatively long history of pointing the public to public information about the retention process.”
The article joins other coverage in noting, however, that the “Know Your Judge” campaign (described as such by several of the involved organizations) does not limit itself to describing the retention process, but in fact does advocate for a vote:
The Know Your Judge website encourages voters to vote, rather than skip over judges on the ballot. “When judges are on the ballot, what do you do? Don’t skip them. Be informed. Get the simple, impartial, nonpartisan facts here,” the website says.
However, the “simple, impartial, nonpartisan facts” that are presented uniformly support a “retain” vote for the 3 incumbent Colorado Supreme Court justices on the general election ballot – a completely one-sided advocacy that identifies this “campaign” as a political committee, under Colorado campaign finance law:
Colorado Constitution Article XXVIII, § 2(12)(a) defines a “political committee” as “any person, other than a natural person, or any group of two or more persons, including natural persons, that have accepted or made contributions or expenditures in excess of $200 to support or oppose the nomination or election of one or more candidates.”
Since the “Know Your Judge” consortium consists of a group of 4 “persons” (including organizations) that have made expenditures in excess of $200 (at least $85,000 to run over 4,000 advertisements in August and September alone) in support of one or more candidates – they are, by law, a “political committee” (just like Clear The Bench Colorado).
The same rules apply to both sides – but the “Know Your Judge” consortium arrogantly acted as if the rules don’t apply to them.
They’re lawyers; they should (and do) know better.
It’s more than a little bit ironic that a consortium of legal-establishment special-interest groups should spend so much money, without any transparency or accountability, to support the retention of Colorado Supreme Court justices against citizens wishing to hold them accountable for their performance.
The outcome of this case will be a strong indicator of whether or not the rule of law applies at all in Colorado; either the same rules apply to both sides, or we are living without law.
Unfortunately, the outcome of this case (in fact, coverage of the news of this case) will arrive too late to influence this election cycle; however, it remains part of the ongoing struggle to hold our officials and institutions accountable to the same laws imposed upon ordinary citizens.
Although the elections are over – the votes are in, and we’re awaiting the results – the fight for an accountable judiciary goes on. Please continue to support Clear The Bench Colorado with comments (Sound Off!) and contributions – stand up for your rights as citizens.
More news coverage of “Know Your Judge” consortium violations of Colorado campaign finance law
Following last Friday’s initial coverage of the blockbuster campaign finance complaint (at up to $500,000 in penalties and fines, potentially the largest in Colorado history, by several orders of magnitude) against the Know Your Judge consortium by Law Week Colorado and Face The State, the consistently thorough and professional investigative journalist Michael Roberts of Westword weighed in today with an article (“Clear the Bench Colorado’s Matt Arnold on campaign complaint about KnowYourJudge.com“) gaining the first comment from supporters of the judicial incumbents. Although Democrat Party attorney Mark Grueskin and his ‘Colorado Judiciary Project’ group are not part of the “Know Your Judge” consortium (and not named in this complaint), they are allied parts of the legal establishment united in opposing the upstart judicial reform and accountability movement led by Clear The Bench Colorado.
Grueskin echoes the position taken by the “Know Your Judge” consortium in dismissing the complaint by parroting the party line that ‘Know Your Judge’ is “simply educating voters about resources they can use in making their decisions” – but later gives the game away, admitting that the group has “urged voters to… be knowledgeable and vote.”
‘Urging a vote’ counts as “electioneering” – particularly when that ‘urging’ includes spending close to $100,000 to run over 4,000 ads on radio and TV – which these groups have done.
The groups, which include the Colorado Bar Association, the Colorado Judicial Institute and the League of Women Voters of Colorado, “violated Colorado campaign finance laws,” Arnold asserts. “And they’re lawyers, so they ought to know better.
“They think they’re being clever to express advocacy to vote,” he continues. “But if you go to their website and click through” — to the page for the Colorado Office of Judicial Performance Evaluation, “you get their recommendations — which are to retain all three Supreme Court judges on the ballot this year.”
Arnold concedes that the organizations “have the right to express their opinion, but they have to follow the same rules that I do. And instead, they’ve chosen to intentionally violate the rules and spend this money without the proper accountability.”
Another key difference in the “educational” activities of the ‘Know Your Judge’ consortium vs. the substantive Evaluations of Judicial Performance provided by Clear The Bench Colorado: CTBC presents information from both sides, whereas the only “educational information” provided by Know Your Judge points to a “retain” vote.
The activities of the consortium – and of each of the individual organizations funding those activities – are not conducted out of ignorance, but are willful violations of campaign finance law; the participants know the law, and know better. As a result, the consortium (and the participating organizations individually)
could face huge penalties as a result of their failure to file as a political committee. “They’ve been closely following what happened with me, and they’ve been snickering about it,” he alleges. “But they’re subject to the same $525 per-person-per-cycle limits as I am. And if, as I understand, the Colorado Bar Association contributed $50,000 to this campaign, it’s about $49,475 over the limit. So you could see fines tacking up pretty high, pretty fast.”
As for Arnold’s feelings about tomorrow’s elections, he says he’s “cautiously optimistic” his message has gotten out, despite all the legal hurdles that have been placed before him over the past several months. He adds that “this is a case of the underdog taking on the giants — but they’re in the wrong. They’re violating the rules, and they’re not above the law.”
Be a citizen, not a subject – get informed, then exercise your right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority” – (Justices Michael Bender, Alex Martinez, Nancy Rice, soon minus Chief Justice Mary Mullarkey, who’s resigning rather than face the voters ) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.” Continue to support Clear The Bench Colorado with your comments (Sound Off!) and contributions – and vote “NO” on giving these unjust justices another 10-year term!
Halloween Recap: Dubofsky called out in Denver Post editorial, buddies of incumbent bench-sitters vandalize CTBC signs
Clear The Bench Colorado has more than once criticized the dearth of coverage provided by the Denver Post on the “long train of abuses and usurpations” perpetrated by the Colorado Supreme Court; we have on occasion been frustrated at the limited opportunity to respond in print to some of the most spurious accusations and misinformation purveyed by guest commentaries (particularly a June commentary attacking the right of citizens to criticize the courts, and most recently, last Sunday’s attack piece by former justice Jean Dubofsky which presented a litany of distortions, misrepresentations, and outright untruths in attacking the judicial accountability group Clear The Bench Colorado.
However, CTBC has not shirked in giving credit where credit is due – and today’s (Sunday) Denver Post editorial (Vincent Carroll’s “A magnificent abstraction“) not only noted:
Just days before the election, the Colorado Supreme Court has given voters yet another reason why two justices up for retention should be bounced from the bench. The high court, 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.
The editorial went on to take former justice Dubofsky to task for making deliberately false “suggestions” in her previous week’s guest commentary:
Even the modest efforts of the group Clear the Bench, which urges a “no” vote on all three justices, has provoked charges from establishment figures that it seeks to “politicize” the judiciary. In a recent column in The Denver Post, former Supreme Court justice Jean Dubofsky repeatedly suggested that Clear the Bench promotes contested judicial elections – which simply isn’t the case. [Ed. emphasis added]
Dubofsky’s article, her appearance (without prior notice) to debate me on the ‘Your Show with Adam Schrager’ television program the previous week, and the massive ($85,000+) spending on numerous advertisements in support of judicial incumbents by a consortium of legal-establishment special-interest groups (in the process, committing several violations of Colorado campaign finance law) highlights the extent to which the legal/judicial complex has rallied to preserve their monopoly of control over the courts:
While Colorado’s judicial retention system is superior to electing judges, most voters know next to nothing about jurists up for retention, and the legal establishment does its best to keep us in the dark. Only a lavishly funded campaign to dislodge a justice would have a chance of success.
I’m somewhat more optimistic than the view expressed in the editorial about the 3 judicial incumbents maintaining their seats; all across the state, people “get it” that their rights have been serially violated by the incumbent majority on the Colorado Supreme Court. CTBC has been absolutely flooded with online comments, E-mails, and even phone calls seeking more information on which to base a decision for voting on judges (at all levels); the distrust and dismissal of the review commission’s rubber-stamp “retain” recommendations published in the “Blue Book” is palpable. Tuesday’s results will tell if the legal/judicial complex will have been able to buy their incumbent allies another term on the bench, or if a feisty and underfunded grassroots effort will succeed in dislodging a few “politicians in black robes.”
In related news…
Apparently the big spenders in the legal/judicial complex are not the only ones opposing the efforts of Clear The Bench Colorado to inform the voting public of our right to vote NO on unjust justices…
In addition to the ongoing theft of Clear The Bench Colorado yard signs (apparently fairly standard practice in campaigns) – reportedly among the most-stolen (hey, it’s nice to be popular), some of the larger CTBC signs were vandalized sometime on Halloween (I’m reasonably sure it wasn’t trick-or-treaters). In what was apparently an orchestrated effort, vandals pulled down some 4×8 signs in the Southeast Metro area, damaging the mounting stakes (which took some effort). Police reports have been filed; any witnesses are encouraged to contact CTBC to assist in locating the perpetrators.
(Reports of 3 black-robed suspects fleeing the scene are probably exaggerated, although the image of black-robed judges and/or pinstripe-suited lawyers sneaking away from the dirty deed is comical…)
Be a citizen, not a subject – get informed, then exercise your right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority” – (Justices Michael Bender, Alex Martinez, Nancy Rice, soon minus Chief Justice Mary Mullarkey, who’s resigning rather than face the voters ) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.” Continue to support Clear The Bench Colorado with your comments (Sound Off!) and contributions – and vote “NO” on giving these unjust justices another 10-year term!
Coverage of legal-establishment campaign finance violations
In a “fair and balanced” media universe (even in a world in which the concept of “journalistic integrity” still had any meaning), the violation of Colorado campaign finance laws by a consortium of some of the largest and most powerful legal-establishment special-interest groups in the state (headed by the Colorado Bar Association, joined by the Colorado Judicial Institute, the Institute for the Advancement of the American Legal System and the Colorado chapter of the League of Women Voters) with potential fines and penalties approaching a half-million dollars would be BIG news.
Instead, the majority of the Colorado press and media remain asleep at the wheel…
However, two media outlets have been paying attention to the issue, and have each written a fair summation of the complaint.
First out the gate (which has often been the case when it comes to coverage of Colorado legal issues) was Law Week Colorado. Their article, published online Friday (“Judicial-Ouster Group Files Complaint Against Colo. Bar Association, 3 Others“) notes that
[t]he four groups named in the complaint each contributed to the “Know Your Judge” campaign, which produced public service announcements urging voters not to skip judges up for retention on the ballot
and noted that the “Know Your Judge” campaign universally recommended a “retain” vote for the incumbent Colorado Supreme Court justices on the ballot.
The article goes on to note the irony in the fact that
Clear The Bench’s complaint relies in part on an administrative law judge’s ruling in a campaign finance complaint brought against it this year by Colorado Ethics Watch. The ruling found that committees that advocate for or against a judge must register as political committees.
Law Week’s article also includes the full text of the complaint, as filed (excepting attached Exhibits).
The first news organization to actually actively seek information on the story (you know, what used to be called investigative journalism and reporting) was Face The State online/radio news. Their article (“Complaint: Know Your Judge doesn’t know state campaign finance laws“) was also published Friday afternoon. Face The State’s article notes the extent to which the special-interest groups named in the complaint have funded the “Know Your Judge” campaign, as well as the potential fines and penalties to which they may be subjected once the complaint is resolved in court:
According to an article in Law Week, the Colorado Bar Association paid $50,000 to produce the ad spots; the Institute for the Advancement of the American Legal System paid $25,000, and the Colorado Judicial Institute pitched in $10,000. The organizations, plus the League of Women Voters, are listed as sponsors on the Know Your Judge “About Us” page. [Ed. the amounts for IAALS and CJI were switched in the FTS article - it should be $10,000 by IAALS, and $25,000 by CJI - which, BTW, is a 501(c)3 organization prohibited from contributing to campaign activities].
Had Know Your Judge registered with the Secretary of State as a political committee–Arnold believes it should have–it would be limited to receiving contributions no greater than $525 per contributor per election cycle. If the complaint is upheld, a judge can levy fines of $50 per day for late reporting, plus two to five times the amount of contributions. The latter fine would equal between $170,000 and $425,000.
“Collectively and as individual organizations, they have all violated the law,” Arnold said. “They should have had to come together to file as a committee, or they could have done so individually.”
These legal-establishment special-interest groups are not above the law; the same rules should (and do!) apply to these groups, and their political activities, as apply to anyone else. They apparently consider themselves (along with the anti-constitutional incumbents they are working to keep in office) in a separate class – they seem to believe that laws only apply to the “commoners” (and not the legal-judicial “ruling class”).
Clear The Bench Colorado‘s complaint serves notice that they – along with the judicial incumbents they are supporting – can and will be held accountable.
Be a citizen, not a subject – get informed, then exercise your right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority” – (Justices Michael Bender, Alex Martinez, Nancy Rice, soon minus Chief Justice Mary Mullarkey, who’s resigning rather than face the voters ) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.” Continue to support Clear The Bench Colorado with your comments (Sound Off!) and contributions – and vote “NO” on giving these unjust justices another 10-year term!