Telluride Land Grab
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.
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.
Cleaning up the “Dirty Dozen” – Agriculture Tax repeal moves forward in state House
“No man’s life, liberty, or property is safe while the legislature is in session.” – Mark Twain (1866)
Occasionally, however, the legislature can succeed in undoing previous acts putting one’s life, liberty, or property at risk…
State legislators made some progress this week towards repealing one of last year’s “Dirty Dozen” tax increases (which exploited a Colorado Supreme Court ruling to take more of your money without asking, as is required under the Colorado Constitution).
The “Dirty Dozen” was the name given to a package of twelve legislative bills which sought to increase tax revenues by eliminating existing tax credits or exemptions – an end-run around the constitutional requirement (in Article X, Section 20 – colloquially known as the Taxpayer’s Bill of Rights, or TABOR) for “voter approval in advance for… any new tax, tax rate increase, or… tax policy change directly causing a net tax revenue gain to any district.”
Last year’s legislative majorities (Democrats dominated both chambers of the state General Assembly) were emboldened in their assault on the constitutional rights (and wallets) of Colorado citizens by an interpretation of the Colorado Supreme Court’s ruling in the notorious “Mill Levy Tax Freeze” case (another unconstitutional tax increase, sanctioned by the court under the pretense that a rate “freeze” which collects more revenue doesn’t count as a tax increase for triggering that pesky constitutional requirement to receive “voter approval in advance”). Solid legislative majorities, a compliant governor, and a complicit supreme court allowed them to take a bigger bite of your money without first (or ever) asking for permission.
Since the 2010 elections resulted in a shift of control of one legislative chamber (the state House of Representatives) and many members of the new majority campaigned on a promise to seek the repeal of these unconstitutional tax increases, progress towards the elimination of any one of these unconstitutional (and economy-killing) tax increases is welcome news. Last week, HB 11-1005, Reinstate Tax Exemption for Ag Products (Sonnenberg/Brophy), which would repeal the 2.9 percent state sales and use tax on agricultural compounds, bull semen and pesticides that was (unconstitutionally) imposed by last year’s HB10-1195, Suspend Ag Sales & Use Tax Exemption (Ferrandino/Heath), passed the House with a bipartisan 48-17 vote and appears likely to pass the state Senate as well, according to this article (“Ag tax repeal passes state House“).
Repealing last year’s (unconstitutional) agricultural tax increase is a win both for the rule of law and Colorado consumers – since the tax indirectly raised the price of all food grown, raised, or otherwise produced in Colorado. Noticed your grocery bill creeping up? Last year’s tax increase is partially to blame; projected revenue gains of $1.5M have not been realized, while higher food costs are shifted to consumers.
Of course, had the Colorado Supreme Court stuck to its sworn duty to uphold the Colorado Constitution and the rule of law in the first place (instead of legislating from the bench), none of the “Dirty Dozen” would have been proposed, much less passed – and we wouldn’t need to pass more laws to repeal bad laws already enacted.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public, and to provide useful evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
The ‘Dirty Dozen’ Tax Increases: How the 2010 Colorado Legislature exploited a Colorado Supreme Court ruling to (unconstitutionally) take more of your money without asking
The following article was written for, and originally appears in, The Constitutionalist Today (February edition).
“No man’s life, liberty, or property is safe while the legislature is in session.” – Mark Twain (1866)
As another legislative session begins, the Colorado General Assembly once again faces a hefty budget shortfall; the projected gap between expected revenue and planned spending is $1.2B (yes, that’s $1,200,000,000) this fiscal year. Last year at this time, the projected revenue shortfall was a mere $660M (about half of this year’s shortfall) which the legislature “fixed” with a combination of one-time subsidies, funds transfers and raids, other budgetary gimmicks – and the “Dirty Dozen” tax increases.
The “Dirty Dozen” was the name given to a package of twelve legislative bills which sought to increase tax revenues collected by eliminating existing tax credits or exemptions – an end-run around the constitutional requirement (in Article X, Section 20 – colloquially known as the Taxpayer’s Bill of Rights, or TABOR) requiring “voter approval in advance for… any new tax, tax rate increase, or… tax policy change directly causing a net tax revenue gain to any district.”
Last year’s legislative majorities (Democrats dominated both chambers of the Colorado General Assembly) were emboldened in their assault on the constitutional rights of Colorado citizens (and the grab into their wallets) by an interpretation of the Colorado Supreme Court’s ruling in the notorious “Mill Levy Tax Freeze” case (another unconstitutional tax increase, sanctioned by the court under the pretense that a rate “freeze” which collects more revenue doesn’t count as a tax increase for triggering that pesky constitutional requirement to receive “voter approval in advance”). Solid legislative majorities, a compliant governor, and a complicit supreme court allowed them to take a bigger bite of your money without first (or ever) asking for permission.
Since the 2010 elections resulted in a shift of control of one legislative chamber (the state House of Representatives) and many members of the new majority campaigned on a promise to seek the repeal of these unconstitutional tax increases, it’s worth re-visiting the “Dirty Dozen” tax laws to provide an overview of what’s at stake.
Originally, twelve bills were introduced to repeal a total of thirteen existing tax credits or exemptions; one of the bills was not passed, resulting in eleven bills increasing twelve taxes (either way, the term “Dirty Dozen” remains an appropriate and accurate description).
In order of introduction, the bills were:
HB10-1189, Eliminate Sales Tax Exemption for Direct Mail (Pommer/Heath), signed 2/24/10. This bill increased the sales tax on direct mail advertising, impacting both the actual advertising companies and the predominantly small-business market (especially local small businesses) that rely on direct-mail advertising as a cost-effective and less expensive alternative to radio/TV ads. This tax increase was projected to raise $1.5M, but has actually generated less revenue.
HB10-1190, Suspend Industrial Fuel Sales & Use Tax Exemption (Pommer/Heath), signed 2/24/10. Also known as the “Energy Tax”, this bill effectively raised the cost of every product and service produced in Colorado (since every business using energy – i.e. all businesses – now must pay a higher price for energy, directly or indirectly, sometimes both – used ‘on the job.’) This new tax hits manufacturing industries, already pinched by increasing fuel prices, especially hard; the state’s largest manufacturing industry (Pueblo’s Evraz Rocky Mountain Steel) expected to pay $2M/yr in additional costs. Projected state revenue gains of $48M have not been realized.
HB10-1191, Eliminate Candy & Soda Sales Tax Exemption (Pommer/Heath), signed 2/24/10. The notoriously capricious Candy Tax not only angered Colorado kids, it also burdened stores with checking ingredients for each item to see if it was subject to taxation. (Ironically, some “energy bars” are considered “candy” while “Twix” or “KitKat” bars are not, based on the ingredient list). Again, small businesses were disproportionately impacted and, predictably, revenue projections of $17.9M have not been achieved.
HB10-1192, Sales & Use Tax of Standardized Software (Pommer/Heath), signed 2/24/10. Software downloads – particularly upgrades or updates to previously purchased programs such as antivirus or antispam software – were most impacted; previously, direct online purchases were not taxed. Projected revenue gains of $15M have not been realized.
HB10-1193, Sales Tax Out-of-State Retailers (Pommer/Heath), signed 2/24/10. Also known as the Amazon Tax, this tax increase prompted Amazon.com to terminate its local affiliate program (reducing income for some 5,000 Coloradans) and led to a (predicted) court challenge, since the bill sought to collect personal purchase data from online retailers (violating the 4th Amendment). Taxpayers are funding the state’s defense (filed in Federal court, due to lack of confidence in Colorado courts) and needless to say, the projected $5M revenue has not been achieved.
HB10-1194, Eliminate Nonessential Articles Sales Tax Exemption (Ferrandino/Heath), signed 2/24/10. Otherwise known as the Doggy Bag Tax – since legislators consider take-home food containers “non-essential” items for restaurants and thus subject to higher taxes (raising the cost of dining out, since the restaurants have to factor the increased cost into their prices).
HB10-1195, Suspend Ag Sales & Use Tax Exemption (Ferrandino/Heath), signed 2/24/10. Increasing taxes on a wide range of agricultural products (including animal feed, vaccines, drugs, pesticides, etc.) has indirectly raised the price of all food grown, raised, or otherwise produced in Colorado. Notice your grocery bill creeping up? This tax increase might be to blame; projected revenue gains of $1.5M have not been realized (and higher costs are shifted to consumers).
HB10-1196, Eliminate Certain Cars Qualified for Tax Credits (Ferrandino/Heath), signed 2/24/10. Removed several vehicles previously qualifying for tax credits from the list.
HB10-1197, Reduce Conservation Easement Cap Amount (Ferrandino/Heath), signed 4/29/10. Reduced the maximum state income tax credit allowed for conservation tax easements (expect Governor Hickenlooper to be willing to sign off on repeal, for obvious personal tax reasons).
HB10-1198, Suspend Credit Alternative Minimum Tax (Ferrandino/Heath), postponed.
HB10-1199, Net Operation Loss Deduction Temp Limit (Ferrandino/Heath), signed 2/24/10. Reducing the ability of businesses to write off losses just when they might be recovering delays their ability to invest, create jobs and generate revenue. Penny wise, pound foolish?
HB10-1200, Enterprise Zone Investment Tax Credit Deferral (Hullinghorst/Heath), 5/7/2010. Deferring income tax credits on enterprise zone investments has, unsurprisingly, reduced the willingness of potential investors to… well, invest – further slowing economic recovery.
The preceding list was a short summary of the “Dirty Dozen” tax bills; space precludes more detail, but interested readers can learn more at http://www.clearthebenchcolorado.org/ (search on keywords “Dirty Dozen”, “Amazon Tax”, “Candy Tax”, “Doggy Bag Tax” and others).
Matt Arnold is currently the executive director and primary spokesman for the grassroots effort to restore accountability to Colorado’s judiciary, Clear The Bench Colorado. Matt launched the effort following the Colorado Supreme Court’s violation of the Colorado Constitution, citizen’s rights under the Taxpayer’s Bill of Rights (TABOR), and their duty to uphold the rule of law in the infamous “Mill Levy Tax Freeze” case. Since April 2009, Matt has tirelessly sought to educate Colorado voters of their right to demand accountability of our Supreme Court justices in the November 2010 retention elections, which (although falling short of removing the three anti-constitutional incumbents on the ballot, achieved the highest percentage of “NO” votes for sitting “Supremes” in the history of the state- on a shoestring budget and no organized support).
Political End Runs: How Judges violate the law (and your rights)
The Constitution of the United States begins with the words “We the people.” But neither the Constitution nor “we the people” will mean anything if politicians and judges can continue to do end runs around both.
So begins a superb article by esteemed economist and commentator Thomas Sowell, published Tuesday (“Political End Runs“).
Sowell states the case as eloquently as I have seen about the need for citizens to hold not only their elected officials, but also unelected bureaucrats and judges accountable – to constitutional limits specifically and the rule of law in general.
Sowell’s piece begins with an expose of how bureaucrats in the Medicare office are quietly implementing rules for the healthcare “reform” legislation that were explicitly rejected by Congress (during debate – such as it was – on the same legislation). As many critics pointed out at the time, the healthcare law ceded extraordinary power and authority to unelected bureaucrats to make up implementing rules as they went along.
The article quickly proceeds to a much more wide-reaching (and dangerous) trend in “political end runs” – judicial usurpation:
It is not only members of Congress or the administration who treat “we the people” and the Constitution as nuisances to do an end run around. Judges, including justices of the Supreme Court, have been doing this increasingly over the past hundred years.
Naturally, Sowell’s focus is at the Federal level – but the problem he articulates is very much a threat at the state level:
Professor Roscoe Pound likewise referred to the need for “a living constitution by judicial interpretation,” in order to “respond to the vital needs of present-day life.” He rejected the idea of law as “a body of rules.”
But if law is not a body of rules, what is it? A set of arbitrary fiats by judges, imposing their own vision of “the needs of the times”?
Actually, that describes quite adequately the condition of law in the state of Colorado – at least at the highest levels. The Mullarkey Court has repeatedly injected its own vision of “the needs of the times” over the clear letter of the law and the constraints of the Constitution. The Bender Court appears pre-disposed to follow this trend into the next decade – cementing Colorado’s status as a “judicial hellhole.”
The institutions that should be addressing the problem – Colorado’s legal establishment, sworn to “support the Constitution” and uphold the rule of law (which is actually part of the oath taken by lawyers in order to practice law in this state) – are instead fighting to expand the power of their “guild” and promote the special interests of the legal caste, even if it means playing fast and loose with the law. (A consortium of legal-establishment special-interest groups, including the Institute for the Advancement of the American Legal System, IAALS; the Colorado Bar Association, COBAR; the Colorado Judicial Institute, CJI; and the League of Women Voters, LWV banded together to run a campaign in support of incumbent judges on the ballot this year, but failed to comply with Colorado Campaign Finance Law in the process). Apparently, members of the legal establishment feel that the rules applying to ordinary citizens should not constrain their own activities.
This is, unfortunately, indicative of the mindset which dominates our would-be “ruling class”:
In other words, judges were encouraged to do an end run around rules, such as those set forth in the Constitution, and around the elected representatives of “we the people.” As Roscoe Pound put it, law should be “in the hands of a progressive and enlightened caste whose conceptions are in advance of the public.”
Sowell’s solution?
Unsurprisingly, the same solution advocated by Clear The Bench Colorado: accountability.
The Constitution cannot protect us unless we protect the Constitution, by voting out those who promote end runs around it.
A superb article that should have been written (and widely disseminated) three or more months ago.
Although Colorado voters lost an opportunity (and a battle) this last November, the fight for judicial accountability continues. For those of us who would like to see Colorado’s judiciary reformed and returned to a proper role of upholding the Constitution and individual rights, we would appreciate your continued support – your comments (Sound Off!) and contributions are still needed. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
It’s Official! Colorado is a “Judicial Hellhole”
Last month’s Colorado Supreme Court ruling that created a “right” for plaintiffs (more accurately, their lawyers) to collect “recovered damages” over and above costs actually paid was apparently the straw that broke the camel’s back for a group that rates the performance of courts nationwide (as if the Mullarkey-Bender Court’s rulings to sanction unconstitutional tax increases by way of eliminating tax exemptions and credits or by re-defining taxes as “fees”, erosion of property rights, and usurpation of legislative authority wasn’t enough), adding Colorado to the list of jurisdictions nationally qualifying as a “judicial hellhole.”
The American Tort Reform Association’s annual “Judicial Hellholes” report for 2010 lists Colorado as one of only three state supreme courts nationwide to qualify for the “honor” (Colorado joins Michigan and perennial favorite West Virginia in being so recognized).
“Traditionally, Judicial Hellholes have been considered places where civil judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits,” explains ATRA general counsel Victor Schwartz. “The jurisdictions we name as Judicial Hellholes each year are not the only unfair courts in the nation, but they are among the most unfair, based on our survey of litigants and considerable independent research.”
Congratulations, Colorado – the legal-establishment special-interest groups that spent so much time and money this Fall (violating campaign finance laws in the process) telling you that our state’s judicial system is “nationally recognized” were right (in that statement) after all.
For those of us who would like to see Colorado’s judiciary reformed and recognized for upholding the Constitution and individual rights, we would appreciate your continued support – comments (Sound Off!) and contributions are still needed. 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.
Clear The Bench Colorado continues the Grassroots Revival: speaking along the Western Slope Thursday, Friday
The resurgence of “We The People” in the form of local citizens banding together in grassroots civic action organizations to defend our constitutional rights is THE continuing political story of the year 2010 in America and is profoundly affecting Colorado Politics in this year and beyond…
Clear The Bench Colorado Director Matt Arnold is both proud and humbled to have been invited as a guest speaker to several such groups over the last several months – beginning with the massive (7000+) crowd at the first Tax Day Tea Party rally at the Denver Capitol and continuing through several events throughout the Spring (examples here, and here), Summer (examples here, here, and here) Fall (examples here, here, here, here, and here) and Winter (examples here, and here) of 2009 – we’re back for more in 2010, most prominently at the Tax Day Tea Party rallies on April 15th.
Clear The Bench Colorado Director Matt Arnold discusses the impact of Colorado Supreme Court rulings leading to a massive expansion of government power (at the expense of YOUR constitutional rights) and vastly increased taxation (such as the “Mill Levy Tax Freeze” property tax increase, the “Dirty Dozen” tax increases and of course the Colorado Car Tax (er, “vehicle registration fee”) increase, along with the dominant role of the Colorado Supreme Court in determining our legislative district boundaries (including both the State and Federal level – deciding how YOU will be represented in Congress and in the Colorado Legislature) and the issue of judicial retention elections for the Colorado Supreme Court following the announcement by Chief Justice Mullarkey that she would resign rather than be held accountable by Colorado voters – at the Western Slope Conservative Alliance in Grand Junction Thursday (starting at 6PM, Grand Junction City Hall) and on Friday in Craig for lunch (noon at Carelli’s Pizzeria & Pasta, 465 Yampa Ave. in Craig) and Meeker ( at Kilowatt Korner, 6th and Market starting at 6:30 PM) in the evening.
The Colorado Supreme Court – and particularly, the Chief Justice – exercises enormous power (“clout”) over the lives of Colorado citizens. The current majority has repeatedly demonstrated that it does not exercise this power with restraint or consideration for your constitutional rights – ruling consistently against individual protections and in favor of expanded government power. Upholding tax increases (such as the “Mill Levy Tax Freeze” property tax increase, or the “Dirty Dozen” new tax laws) imposed without the required vote of the people, enabling taxes to be collected under the guise of “fees” (such as the Colorado Car Tax), expanding eminent domain abuse to seize people’s property, and grabbing the (legislative) power to draw up voting districts (aided by the recent “Mary-mandering” bill) – this court is acting like rulers, with you as the subjects; re-writing the laws, instead of upholding them.
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, and soon-to-be-minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home 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!