In today’s (Wednesday) Denver Post, editor/columnist Vincent Carroll, while taking Scott McInnis to task for “budgetary vagueness” in the ‘Platform for Prosperity’ and other campaign statements to date, lauded the platform (aka ‘Contract for Colorado’) for adherence to constitutional principles:

The best thing about Scott McInnis’ new “Platform for Prosperity” is that it shows a respect for voters and the Colorado Constitution. That alone is cause for celebration, given the serial disregard for voters’ rights and constitutional language during the past three years.

The voters of Colorado certainly have a right to expect that their officials - elected OR appointed - demonstrate respect for their rights and for the Colorado Constitution.  As Carroll points out, those rights - such as the right to vote on tax increases, guaranteed under TABOR - have been increasingly undermined (if not downright ignored) by all branches of Colorado government over the last several years.

In other words, no more end runs around the Taxpayer’s Bill of Rights to hike property taxes by the trick of freezing mill levies rather than allowing them to decline. No more plans to raise $130 million by lifting long-established tax exemptions while ignoring the TABOR requirement that any “tax policy change directly causing a net tax revenue gain” must go to a popular vote.

And no more repealing spending caps for the general fund without asking voters for permission, as TABOR demands.

What Carroll does not mention - at least, not explicitly - is the fact that these “end runs around the Taxpayer’s Bill of Rights” were ONLY able to occur with the active involvement of the ruling majority on the Colorado Supreme Court.  Lower courts had held - properly - that the “Mill Levy Tax Freeze” was clearly unconstitutional.   That would have stopped the “end run” around TABOR in its tracks - but for the complicit (and politically motivated) action of the Mullarkey Majority to overturn the lower court, in clear and blatant disregard of the Colorado Constitution.

The Mullarkey Court also added insult to injury by inventing a rationale to eliminate constitutional protections for “long-established tax exemptions” in that same case - an insult all the more egregious because those tax exemptions were not even at issue in the case, and were only added to the ruling - a major breach of judicial practice by an appellate court - because an activist majority wanted to push its own agenda in further undermining TABOR.

The repeal of the Arveschoug-Bird 6% limit on growth of government spending - previously held to have been incorporated under TABOR - by the legislature with Senate Bill 228 was also “aided and abetted” by the Mullarkey Court.  Since the unconstitutional nature of the repeal (and thus SB228) was clearly established by years of legal commentary and precedent, in a rational universe, the bill would have been challenged and overturned.  However, a legislature emboldened by the Mullarkey Majority’s clear bias against TABOR - no mere statute, but part of the Colorado Constitution - felt no qualms in ramming through a clearly unconstitutional bill, and the opposition (in the legislature and otherwise) saw no prospects for a successful legal challenge.  The fix was in - it was clear that the ruling majority on the Colorado Supreme Court would NOT uphold the Constitution, and the rule of law, despite their sworn duty to do so.  Like the dog that did not bark in the night, the “case that never was” sealed the doom of this legal limit on the growth of general fund spending.

Carroll continues:

If TABOR can be defied any time an attorney offers an inventive rationale, what’s to prevent public officials from ignoring other inconvenient amendments?

What, indeed?  If the Colorado Constitution means whatever a majority on the Colorado Supreme Court says it means on any given day, why bother to have a Constitution at all?  For that matter, why bother to have any rules; just let decisions be made by rulers.  Oh wait; 200-odd years ago, we had just that; but we called them “Kings” and “Queens,” instead of “Supreme Court Justices.”

Our founding fathers established something unique, something very special, when they replaced the divine right of kings - rule unchallenged by constitutional constraints - with constitutional, limited government: the rule of law, not the arbitrary and capricious rule of men (or in this case, women).  “What kind of government have you given us?”, Benjamin Franklin was famously asked on exiting the Constitutional Convention.  “A Republic, if you can keep it”, he replied.

We The People must again stand up in defense of our Constitution - in defense of our rights as citizens - in order to keep our Republic.  We must throw off those who would re-institute a rule of our “betters” - be they termed Kings, Queens, or Supreme Court “Justices.”

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).  They 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.” DON’T GIVE IT TO THEM!  Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on these unjust justices in Nov. 2010!

Cross-posted from the Peoples Press Collective and Mount Virtus websites, from commentator Big Ben (big, but “not as big as Rasmussen“) DeGrow:

“Despite all the hoopla (much of it well-deserved) about the election results, let’s not lose focus on an easily overlooked issue that should factor into some of our important decisions for 2010 — namely, the Colorado Supreme Court delving into political questions of how our schools are funded in Lobato v State.

You now can listen to my recent 8-minute interview on this very topic with Brad Jones on Face The State Weekend edition.

Whether or not you get to listen, let me explain — no, let me sum up: The case for Clear The Bench Colorado is now overwhelming.”

Overwhelming, indeed.  The Independence Institute’s expert analyst on Education Policy (and frequent online commentator)  Ben DeGrow is part of the rising chorus of commentators (Mike Rosen’s Denver Post column Thursday, Mark Hillman’s excellent article Wednesday, and Vince Carroll’s superb commentary Sunday, to name just the most prominent recent examples) speaking out against the Mullarkey Majority’s most recent blatantly unconstitutional ruling - and piling-on power grab - in Lobato v. State of Colorado.  Ben’s radio piece supplements his first big broadside against the dangerous Lobato ruling and his Taking on the Colorado Supreme Court blog post,  following the very-next-day analysis and commentary of the ruling posted right here on Clear The Bench Colorado.

Inform yourself about this outrageous Colorado Supreme Court ruling - in print,  on-air, and online - 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 have policy decided by elected, accountable legislators (not unelected judges); 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 these unjust justices in 2010!

An alert reader (hat tip to Live Free Colorado) brought the Colorado Springs Gazette editorial criticizing the tax and “fee” ‘bait and switch’ tactics employed by the current administration - thanks to the Mullarkey Majority’s unconstitutional ruling last November - to my attention this morning.

The Taxpayer’s Bill of Rights clearly says that voters have to approve any new tax in Colorado. Many jurisdictions, including the state and Colorado Springs, have danced around this requirement by instituting fees to cover costs that should rightly be funded with taxes. This allows those governments to get what they want - and in all fairness sometimes what they need to serve the public - without the bother of asking permission. The Colorado Supreme Court has been complicit in allowing this, ruling many times that these fees aren’t really stealth taxes. That fact has unfortunately emboldened new abuses of fees, and the latest example is Gov. Bill Ritter’s August raid of the state’s fee-funded tire cleanup fund to help balance the budget.

The Gazette editorial is yet another example of what seems to be a groundswell of opinion critical of the Mullarkey Majority’s outrageous rulings - brought to the forefront by last week’s ruling usurping the power of the legislature to make policy on school funding that kicked off a virtual storm of commentary by some of the most prominent observers of political events in Colorado. (Mike Rosen’s Denver Post column Thursday, Mark Hillman’s excellent article Wednesday, Vince Carroll’s superb commentary Sunday, and - not least -  Independence Institute’s expert analyst on Education Policy (and frequent online commentator)  Ben DeGrow (who’s big - but “not as big as Rasmussen”) Taking on the Colorado Supreme Court last Sunday, too).

The Gazette editorial correctly calls Governor Ritter to account for resorting to ”the ol’ bait and switch” - moving funds collected by fees for a specific purpose (in this case, the tire waste fund) - into the general fund in order to “balance the budget”:

Any time a fee is imposed by government, the legislation setting up the fee provides for how the money is to be spent. A fee should address a specific issue to be addressed with that revenue. The tire waste fund comes from a $1.50 fee the state charges when you buy a new tire and leave the old one at the dealer. It is supposed to be used to subsidize tire recycling efforts in the state. The subsidy is needed because, according to a recent Denver Post report, the demand for recycled tires isn’t high enough to make recycling profitable, and Colorado has the largest stockpile of old tires in the nation. Ritter’s actions exacerbate the problem. Worse, though, his raid on the waste tire fund created what is essentially a new tax on tires.

The Colorado high court disagrees, saying, in essence, that as long as revenue from a fee goes into the fund for which it was intended, it’s still a fee, regardless of what it’s spent on. Additionally, the court says that because the revenue is already in the state coffers, it’s not new revenue if it is moved to the General Fund. Using the court’s rationale, the Legislature could charge a fee to, say, offset damage to state roads from large pickup trucks and SUVs. It could then raid that fund to pay for capital improvements or maintenance to public school buildings.

Any way you slice it, that’s underhanded and a breach of the public trust.

 The Mullarkey Majority’s semantic shenanigans - playing fast and loose with the letter of the law, the very Constitution they are sworn to support and uphold - have aided and abetted numerous underhanded, unconstitutional legislative sleights of hand and breaches of the public trust.

DON’T LET THEM GET AWAY WITH IT!  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 have policy decided by elected, accountable legislators (not unelected judges); 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 these unjust justices in 2010!

“A sense that the Colorado Supreme Court is growing out of control continues to pick up momentum after the October 19 Lobato v State ruling (PDF), in which the 4-3 liberal majority arrogated to itself the power to determine school funding policy.”

The Independence Institute’s expert analyst on Education Policy (and frequent online commentator)  Ben DeGrow is part of the rising chorus of commentators (Mike Rosen’s Denver Post column Thursday, Mark Hillman’s excellent article Wednesday, and Vince Carroll’s superb commentary Sunday, to name just the most prominent recent examples) 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.  Ben claims to have offered the first big broadside against the dangerous Lobato ruling in his Taking on the Colorado Supreme Court blog post today, but in reality only ties Vince Carroll for 2nd (both piece published Sunday) following the very-next-day analysis and commentary of the ruling posted right here on Clear The Bench Colorado.

Despite only coming in second (sorry, Ben) past the gate, Ben’s article in the Colorado Daily is well worth reading not only for the analysis of the Mullarkey Majority’s flawed Lobato v. Colorado ruling but also for Ben’s insights into how this ruling will negatively impact Colorado’s schools and end up hurting - not helping - Colorado’s school-age children.

Ben will also will be talking about the Lobato case and school funding adequacy on Face The State weekend radio with Brad Jones. In the Denver area, that’s AM 710 KNUS on Saturday at 5:00 AM and Sunday at noon. Check local listings for additional stations and times.

Inform yourself about this outrageous Colorado Supreme Court ruling - in print,  on-air, and online - 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 have policy decided by elected, accountable legislators (not unelected judges); 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 these unjust justices in 2010!

“The liberal majority on the Colorado Supreme Court has taken judicial chutzpah to a new level.”

Mike Rosen’s column in today’s Denver Post joins the rising chorus of commentators (Mark Hillman’s excellent article Wednesday, and Vince Carroll’s superb commentary Sunday, to name just the most prominent recent examples) 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.

As Rosen notes, “the level of education spending is inherently a budgeting and political question that must be considered in the context of competing demands from other essential services for finite revenues” - a question properly (and constitutionally) the domain of our elected (and accountable) legislators.

“Uh-uh, said the liberal Supremes, trumping the lower courts, we’re going to arrogate this power to the judiciary. Since simply spending more money on public schools doesn’t necessarily produce better results, this ruling implicitly gives courts the authority to also dictate what is taught and how.” (emphasis added)

This latest ruling is only the most recent example of the out-of-control Mullarkey Court’s grab for power - claiming the authority to be the ultimate arbiter of ALL political issues in Colorado, authority it does not have under the Colorado Constitution and the rule of law.

As Rosen points out, “the appointed members of the court… exploit unchecked power. Chief Justice Mary Mullarkey, the liberal-in-chief, has been there for 22 years.”

Blatant partisanship and arrogant judicial activism - advancing a political agenda by making law, not simply upholding it - is nothing new to the court’s liberals. In the past they’ve co-opted the legislature by imposing a Democrat-contrived redistricting plan on the state, and overrode TABOR when they conveniently declared Gov. Bill Ritter’s property tax increase a “freeze.”

Fortunately, there’s a remedy in Colorado for runaway judges like these. Unlike U.S. Supreme Court justices, Colorado jurists aren’t appointed for life.

Periodically, they must stand for a retention vote by the citizens. As benevolent coincidence has it, three of the four liberal activists who conspired in this ruling are up for retention in 2010: the aforementioned Chief Justice Mary Mullarkey along with Justices Alex Martinez and Michael Bender. (The fourth, Justice Gregory Hobbs, was retained in the last election for another 10-year term. Sorry.)

Rosen concludes: “Retention elections are usually a perfunctory formality. Judges are rarely voted off the bench. Perhaps this was the last straw, an opportunity to deliver a message to these and other would-be judicial activists.”

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…

The 2010 Supreme Court retention elections must not be - cannot be - a mere “perfunctory formality.”  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 have policy decided by elected, accountable legislators (not unelected judges); 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 these unjust justices in 2010!

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!

Our lawmakers are poised to make liars and knaves out of former school board members all over the state. They’re about to make fools out of state education officials of the past two decades. They’re about to make chumps out of local voters from one corner of Colorado to another.

And Gov. Bill Ritter is likely to endorse their high-handed political maneuver, known as Senate Bill 291.

But do not worry: This double cross, which passed the Senate and a first reading in the House this week, is being conducted in the name of the children, so of course it’s all OK.

Ah yes - it’s for the children.  The subterfuge of scurrilous scoundrels since time immemorial…

However, our lawmakers and scoundrel-in-chief-executive Gov. Bill Ritter would be powerless to perpetrate the passage of this double-cross if not aided and abetted by the unjust justices of the Colorado Supreme Court.  Recall that it was the Mullarkey ruling on the Mill Levy Tax Freeze case that enabled the legislature to seize over $117 million in tax payments (and counting) from Colorado voters - without asking them first, as required by the plain language of the Colorado Constitution.

Bill Ritter, of course, praised the court’s decision: “But the real winners today are Colorado’s children…” despite the fact that “none of the funds are actually earmarked specifically for schools. The extra revenue from the mill levy rate freeze flows directly into the state’s general fund.”

The high court, you see, was also determined to help the children - so to heck with the constitution.

 So why is this a double-cross?

First, a little background: When a large majority of school districts in the 1990s asked voters if they could keep all of the tax revenue they were then collecting rather than return surpluses under the Taxpayer’s Bill of Rights, they were careful to assure homeowners that the change would not trigger a long-term escalation in property taxes.

Absolutely not, district officials promised. As the assessed value of property continued to rise, they added, mill levies would tick downward as they had before.

Those officials had every reason to believe they were telling the truth, too, since literally no expert contradicted them. To the contrary. The state repeatedly reinforced the same position. …

“Since your voters are NOT voting to change state law, the de-Bruce election outcome . . . will have NO effect on your district’s school finance mill levy.“

The Colorado Supreme Court’s ruling - and subsequent actions by the governor and the majority in the state legislature - has retroactively made liars out of honest, honorable public servants.  Many of them have already expressed outrage - it was, after all, the Mesa County board who were the named plaintiffs in the suit challenging this travesty of a law - and many others are quietly seething.  ALL of them have suffered a loss of trust with the voters they represent…

NOW the state legislature - with the assumed complicity of the governor and Colorado Supreme Court - is acting to block any attempt by local officials to salvage their good name, honor, and integrity by going back to the voters to allow them to have a say on their original intent:

SB 291 now closes the circle. It punishes any district that wants to reverse its decision to keep the TABOR surplus should its voters now fear a future of ever-rising property taxes. The bill doesn’t actually prevent voters from reversing course, but it ensures that their children will pay a price if they do.

The bill is written and supported by the same people who for two years have insisted that they changed the law on property taxes only because voters had given the green light. “All we were doing was giving voice and respecting the will of the voters,” the governor claimed earlier this year.

Really?  Ensure that your legislators (the House is hearing the bill this week) and Governor Bill Ritter hear your voice and know your will as a voter in opposing this end-run around your rights.

And in 2010 - DON’T GIVE YOUR APPROVAL to the Colorado Supreme Court majority that made this possible.  Vote “NO” on retaining the four “unjust justices” - Mullarkey, Bender, Martinez, and Rice -  who have conspired to take away your constitutional rights.