Mark Hillman’s Capitol Review blog/newsletter today joins the rising chorus of commentators speaking out against the Mullarkey Majority’s most recent blatantly unconstitutional ruling - and piling-on power grab - in Lobato v. State of Colorado last Monday.

In an audacious power grab, the Colorado Supreme Court recently embraced, by a 4-3 decision, a judicial doctrine that would relegate the other two branches of government - and the voters - to a perfunctory role.

The high court’s activist majority used Lobato vs. State not only to intrude on the legislature’s constitutional authority to determine funding for public schools; it also self-servingly suggested that no policy decision is off-limits to judicial review. [emphasis added]

So much for separation of powers, consent of the governed, or checks and balances.  In fact, the Lobato ruling leads to the obvious question:  “What’s left to check or balance the court?”

Indeed.  As oft noted previously in this space, the Mullarkey Majority 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 justice’s sworn duty to uphold the rule of law - and support (not dismantle) the Constitution.

Hillman continues: “the supreme court’s majority selectively quoted and distorted the law and its own precedent.  Even more significantly, the majority argued that courts can render judgments even when the law is silent, provides no quantifiable standard or confers specific authority to another branch of government.”

The Mullarkey Majority’s specious arguments and semantic shenanigans are belied by the clear wording and explicit direction of the Constitution itself, as noted in the dissenting opinion, which “argues that, when the constitution says “the general assembly shall . . . provide for . . . a thorough and uniform system of free public schools,” authority is clearly conferred upon the legislature and not the courts.”

 Hillman closes with a summary of what makes a good judge - as contrasted with the unjust justices of the Mullarkey Court - and notes the remedy available to “We The People” as citizens of Colorado:

That’s the important distinction between originalist judges - who believe their job is to apply the laws as written and to seek guidance from those who authored them - and activist judges - who believe their job is to twist the law to suit their own political agenda and to consult unelected, unaccountable academics for inspiration.

Ironically Bender, Mullarkey and Martinez stand for retention in November 2010.  Perhaps then voters will exercise their own “checks and balances.”

Be a part of the “checks and balances” envisioned in our constitutional form of government. Defend YOUR Constitution, and exercise YOUR right to vote “NO” on retaining the four unjust justices of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your homes and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, not rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices in 2010!

“A powerful coalition…  is pushing to undermine democracy and the separation of powers in Colorado. And thanks to a decision last week by the state Supreme Court, it just might succeed.”

So begins Denver Post editor/columnist Vince Carroll’s latest piece in the Sunday Denver Post.  Carroll has long been one of the very few “journalists” at the Post (since his tenure on the late, lamented Rocky Mountain News) who consistently “gets it” on the flagrantly unconstitutional rulings of the Mullarkey Majority (witness his scathing editorials on the “Mill Levy Tax Freeze” decision last March).

Although we’ve been under the illusion that ”Colorado had escaped the appalling spectacle of judges usurping the power of the purse from elected officials”, in reality the Mullarkey Court has not only enabled a litany of new taxes and “fees“, but they’ve been the behind-the-scenes architect of taxation and spending policy that goes beyond what even our spendthrift legislature has imagined.

As Carroll concludes, “we are one step closer to education funding by judicial fiat. By comparison, Denver’s ordeal with court-ordered busing may seem like child’s play.”

And, of course, once courts begin to make policy, it is difficult to stop.  (Excerpted from Lobato v. State of Colorado, dissenting opinion.  Emphasis added).

We are witnessing a slow-motion coup d’etat in Colorado by the Mullarkey Majority of the Colorado Supreme Court.  In disregarding the proper judicial obligation to uphold the law (NOT to make policy), the Mullarkey Court, unrestrained, is seizing more and more power. When these unjust justices rule from the bench, they really RULE from the bench…

This continuing power grab CANNOT STAND.  Exercise your rights (while you still have them) - hold the unjust justices of the Mullarkey Majority accountable to the Colorado Constitution and the rule of law.  Exercise YOUR right to vote “NO” on retaining the four unjust justices of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your rights: your right to vote on tax increases, your right to defend your homes and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, not rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your voice (Sound Off!), your contributions, and “NO” vote on retaining unjust justices in 2010!

Thanks to the Peoples Press Collective for covering this event (man, those folks are everywhere!), and for permission to re-post the summary of my remarks to the site.  For their full coverage of the remarks by Colorado gubernatorial candidates at the event, read the full article (it’s longish; excerpt follows):

At this weekend’s Colorado Federation of Republican Women annual convention, Colorado’s “Leading Lights” - three candidates for Colorado governor, and one representative of the movement to restore accountability to the Colorado Supreme Court - presented their respective cases for “top of the ballot” statewide votes in the November 2010 elections (for Governor, and Supreme Court retention - or not).

Following the gubernatorial candidates, Matt Arnold of Clear The Bench Colorado addressed the audience on the OTHER top-level statewide vote in 2010: retention elections for the Colorado Supreme Court.  Arnold reminded the audience that there is a 3^rd branch of government, the judiciary - of equal importance and stature to the legislative and executive branches.  He noted that Colorado does not elect judges to the bench, and because of that fact, many - including the Mullarkey Majority on Colorado’s Supreme Court - have come to believe that they are unaccountable.  They are NOT, as he reminded the audience - even Supreme Court justices in Colorado must receive approval from the people in retention elections (for the Supreme Court, every 10 years) in order to stay in office.

“DON’T GIVE IT TO THEM“, Arnold exhorted.  The four justices due for a retention vote in 2010 - Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey - “do not deserve to be retained in office” due to repeated and blatant violations of their oath to support and defend the Constitution.  Arnold asserted that the Mullarkey Court’s unconstitutional rulings were too numerous to list in their entirety, but cited four “core” cases as more than sufficient justification for a “NO” vote.

First, the “Mill Levy Tax Freeze” case, which not only sanctioned a law resulting in an unconstitutional increase in property taxes.  Also buried in the ruling - which was briefed to the Joint Budget Committee on April 1st - was language effectively eliminating previous constitutional protections for a large list of several existing tax credits and exemptions.  It was literally hours after the ruling that a new tax proposal - which eventually became HB1342, the Tobacco Tax increase - was proposed.

Arnold joked that when he heard about the JBC brief the following day, he at first “thought it was an April Fool’s joke” before continuing that “the joke was on Colorado citizens - and the punchline is likely to be replayed, over and over, next session as the legislature attempts to “balance the budget” by eliminating existing tax credits and exemptions” - targeting unpopular constituencies one by one to squeeze revenue wherever possible.

The second case Arnold cited was what he called the “November Surprise” - a ruling handed down on November 3^rd 2008 (the day before national elections) with “far-reaching implications” because the case effectively eliminated the distinction between taxes and “fees” for the purpose of revenue collection - while maintaining the TABOR loophole allowing “fees” to be imposed without a vote of the people.  He noted that the “veritable explosion” of new fees - such as the Colorado Car Tax, the quadrupling of the marriage fee, proposed new “fees” on gun sales, etc. etc. - ALL derived from this ruling.

Arnold then “broke for a joke” in the middle of his presentation with a classic “good news, bad news” line:  “the good news”, he said, “is that the Colorado legislature will most likely not pass any new taxes next session.  The bad news?  They won’t have to - they’ll just call it a “fee”, a “freeze”, or eliminate an existing tax credit or exemption.  Unfortunately,” he concluded, “your wallet won’t be able to tell the difference.”

The 3^rd case Arnold cited was the “Telluride Land Grab” - an example of eminent domain abuse in which the town of Telluride was able to seize property - outside its jurisdiction - and despite statute intended to rein in just such abuses, because the Mullarkey Majority simply stated that the laws “didn’t apply” to Telluride, as a “home rule municipality.  The result: ANY “home rule municipality” anywhere in the state can condemn and seize property anywhere, not bounded by location.  As Arnold said, if you’re a property owner - or even live anywhere in the state - “be afraid, be very afraid.”

The 4^th and final case Arnold cited - highlighting its political importance in light of the upcoming census and subsequent redistricting - was the 2003 “Salazar v. Davidson” case in which the Colorado Supreme Court usurped the General Assembly’s constitutional authority to draw congressional districts - a situation that, Arnold asserted, would likely be repeated if the same justices remain in power.

Arnold concluded by stating that “we are witnessing a slow-motion coup d’etat” - a power grab - by the Mullarkey Majority of the Colorado Supreme Court, as it asserts its power to “be the ultimate decider on ALL political questions facing the state” while vastly exceeding its constitutional authority.  (Arnold also noted the decision earlier in the week by the Mullarkey Court to empower judges to decide on school funding levels - instead of elected legislators or school boards).  Arnold exhorted the audience to hold these “unjust justices” accountable by voting “NO” in retention elections in November 2010, and meanwhile to support Clear The Bench Colorado by spreading the word and contributing to the organization (or campaign, or “movement”, as he called it).

All in all, some very illuminating presentations by all of Colorado’s “leading lights” at the CFRW forum this last Saturday.

Freedom isn’t Free - Defend YOUR Constitution, and exercise YOUR right to vote “NO” on retaining the four unjust justices of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your homes and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, not rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices in 2010!

Clear The Bench Colorado Director Matt Arnold spoke today (Friday, 23 October) before a committee hearing on the Colorado Taxpayer’s Bill of Rights (TABOR) - the following is a summary of his remarks.

(Note that the following does not purport to be a word-for-word transcript; a video of the presentation will be available within a few days).

“Thank you for the opportunity to address the panel on this important subject.

A previous speaker today, Jonathan Williams, referring to the Maine initiative which mirrors TABOR, stated  ”It means very little unless it’s constitutional.”

Another previous speaker, Dr. Barry Poulson, decried the “stealth erosion” of TABOR by various pieces of legislation and executive decrees.

What Dr. Poulson referred to implicitly, but did not state explicitly, was that the examples he cited of TABOR being undermined - the “Mill Levy Tax Freeze“, the Tobacco Tax, the veritable explosion of new and higher “fees” (the most notorious of which is the Colorado Car Tax), and finally, the elimination of the 6% limit on growth of general fund expenditures (Arveschoug-Bird) - were ALL made possible only through the actions of an activist, partisan Colorado Supreme Court.

ALL of these increases in taxation, and elimination of Colorado citizens’ constitutional rights, are the result of rulings by the Colorado Supreme Court - and one case that was NOT brought.

First, the “Mill Levy Tax Freeze” case not only sanctioned a law resulting in an unconstitutional increase in property taxes.  Also buried in the ruling - which was briefed to the Joint Budget Committee on April 1st - was language effectively eliminating previous constitutional protections for a large list of several existing tax credits and exemptions.  It was literally hours after the ruling that a new tax proposal - which eventually became HB1342, the Tobacco Tax increase - was proposed.

Hearing about this the next day, I thought that it had to be some kind of April Fool’s joke.  Unfortunately, the joke was on Colorado citizens - and the punchline is likely to be replayed, over and over, next session as the legislature attempts to “balance the budget” by eliminating existing tax credits and exemptions.

The explosion of new and higher “fees” is the result of another Colorado Supreme Court decision, which effectively eliminated the distinction between taxes and “fees” for the purpose of collecting (and spending) revenue - while maintaining the loophole allowing “fees” to be imposed without a vote of the people.

The upshot of all this?  Well, there’s some good news, and some bad news.  The good news is that, thanks to the shreds of TABOR still in existence, the Colorado Legislature will almost certainly NOT propose any new taxes next session.  The bad news is that they won’t have to - they’ll just call it a “fee“, or a “freeze“, or eliminate existing tax credits or exemptions.  Sadly, your wallet won’t be able to tell the difference.

Another powerful - and extremely dangerous - implication of these Colorado Supreme Court rulings is the case that was NOT brought last year.  When the General Assembly repealed the Arveschoug-Bird 6% limit on general fund spending increases (SB228), and Governor Ritter signed the bill into law, they did so with the full knowledge that they were violating the Colorado Constitution.  It was well understood - documented in a legislative brief prepared by the General Assembly’s own Office of Legislative Legal Services - that Arveschoug-Bird was “incorporated” under TABOR limits, and could NOT be repealed without a vote of the people.  The Legislature, and the Governor, proceeded to repeal this limit fully knowing that they were violating the Constitution because they KNEW that an activist, partisan Colorado Supreme Court actively hostile to TABOR - which is part of the Constitution that they are sworn to uphold - would “have their back.”  No one bothered to challenge this blatantly unconstitutional law because the fix was in - any lawsuit would have NO prospect of success with the Mullarkey Majority in power on the Colorado Supreme Court.

This is an extremely dangerous situation - a government emboldened to act outside the law, backed by a state Supreme Court actively hostile to the very Constitution it is sworn to uphold and defend.  The resultant undermining of the rule of law puts us on a very frightening path…”

We are witnessing a slow-motion coup d’etat in Colorado by the Mullarkey Majority of the Colorado Supreme Court.  In disregarding the proper judicial obligation to uphold the law (NOT to make policy), the Mullarkey Court, unrestrained, is seizing more and more power. When these unjust justices rule from the bench, they really RULE from the bench…

This continuing power grab CANNOT STAND.  Exercise your rights (while you still have them) - hold the unjust justices of the Mullarkey Majority accountable to the Colorado Constitution and the rule of law.  Exercise YOUR right to vote “NO” on retaining the four unjust justices of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your rights: your right to vote on tax increases, your right to defend your homes and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, not rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your voice (Sound Off!), your contributions, and “NO” vote on retaining unjust justices in 2010!