Bender Court can assert its independence on redistricting

Colorado’s political left couldn’t have asked for a more reliable ally than Colorado’s famously activist Supreme Court during the reign of recently retired Chief Justice Mary Mullarkey.

With consistency and an audacity-fueled blend of extra-judicial creativity, Colorado’s high court during the Mullarkey era sided with Democrats, unions, liberal organizations and liberal causes.

Time and time again, the Mullarkey Court contorted facts, twisted the law or just made stuff up in the interest of greasing the skids for Democrats and big-government causes.

The court itself was the legacy of the Democrats long reign of gubernatorial power in this state. Gov. Dick Lamm and his successor, Roy Romer, who ran the state and controlled appointments to the high court for the entire period between 1974 and 1998, filled the court with reliable liberals. Even when Gov. Bill Owens managed to break the Democrats’ generation-long grip on the governor’s office, he was only able to appoint a single person — a Republican, named Allison Eid — to the state’s top court.

During Mullarkey’s tenure, the Supreme Court was both bulwark and backstop for Colorado Democrats, opening new opportunities to tax and to spend, and quashing popular pushes by conservatives on issues big and small.

Notable among these cases was a decision in 2009 in a case brought by various Mesa County plaintiffs, challenging the constitutionality of a backdoor tax increased authored by then-Gov. Bill Ritter. It was jammed through on a near party-line vote by Democrats, who controlled the Legislature at the time.

Even though Colorado’s Taxpayers Bill of Rights plainly says no tax policy change that increases revenues to the state can be approved without a vote of the people, the Mullarkey Court, using logic that would have offended the illogical, approved a massive tax policy change that generated a whole bunch of new revenue for the state of Colorado.

More sinister still, buried deep in the bowels of its Mesa County decision were a handful of paragraphs on totally extraneous matters that further denuded TABOR. The Legislature seized on these opportunities to raise taxes the next year, passing the so-called Dirty Dozen tax increases on a range of businesses, just as the current recession was beginning to take hold.

In 2006, the Mullarkey Court submarined a ballot initiative that would have denied illegal immigrants access to certain government services, abusing a technicality in the law to prevent even a vote on the widely-popular measure. That decision triggered an illegal immigration special session that resulted in a host of get-tough immigration measures.

In 2001 and 2003, the Mullarkey Court tilted the scales of justice and due process in the state’s redistricting process, making Colorado’s congressional districts far-and-away more favorable to the same Democrats who were no doubt on top of Mullarkey’s Christmas Card list.

For all these reasons, Republicans, and those favoring that trifling notion of an independent judiciary, cheered when Mullarkey retired, even though there was not a lot of confidence that her replacement as chief justice — Justice Michael Bender — would be much better.

But little did we know.

In the first big decision of the new Bender era, Colorado’s Supreme Court dropped jaws and shocked Colorado’s political class a few weeks back when it smacked back state legislative maps authored by a Democrat-dominated reapportionment commission that, like the maps of the Mullarkey-era, prioritized Democratic gains over controlling constitutional requirements. The decision was a clear-as-day indication that the Bender Court views its role as final arbiter of the law in an emphatically different manner than its predecessor.

Undeterred, this week the Democrat-dominated panel thumbed its nose at the court, adopting an even more outrageous set of maps that cynically drew a host of sitting Republican legislators into the same seats. The Daily Sentinel’s Thursday editorial regarding the maps badly missed the mark. Just because Mesa County itself didn’t get the full-on shaft doesn’t mean that Mesa County should be any less accepting of maps that jilt other communities of interest in other corners of Colorado.

Even the normally left-leaning Denver Post slammed the Democratic mapmakers for their blatant over-reach.

Time was, Republicans and offended-communities of interest would have had little hope that the Colorado Supreme Court would step in and put the kibosh on such partisan shenanigans. But in a place and time when judicial independence seems to be re-ascendant in this state, flickers of hope that the court will fix the legislative gerrymander are indeed real.

If it steps in a second time, the Bender Court will not only put the clamps on cynical partisanship, it will have reasserted the integrity and independence of Colorado’s system of courts. For Bender and his colleagues on the court, the opportunity to carve a new legacy for the new court couldn’t be more real.

Josh Penry is a former Colorado Senate minority leader and a graduate of Grand Junction High School and Mesa State College.


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