Midweek Update: Governor Hickenlooper, AG Suthers seek dismissal of ‘political’ anti-TABOR lawsuit (Fenster’s Folly)

Predictably (indeed, Clear The Bench Colorado predicted both motion and grounds almost three months ago), Governor Hickenlooper and Attorney General John Suthers filed a Motion to Dismiss the anti-TABOR lawsuit (“Fenster’s Folly“) this week, noting that the lawsuit raises a “political question” rather than a legal issue and is therefore (as the U. S. Supreme Court has previously ruled, several times) “non-justiciable” (meaning, a policy issue not to be decided by the courts).

The state’s Motion to Dismiss Plaintiffs’ Substitute Complaint echoes the same points and references raised in Clear The Bench Colorado‘s review of the lawsuit when it was filed back in May of this year (“TABOR, citizen initiatives targeted by frivolous Fenster lawsuit“):

I. All the claims asserted by Plaintiffs present political questions that the U.S. Supreme Court has long held to be nonjusticiable. The Plaintiffs ask this Court to do something the Supreme Court has consistently refused to do: overthrow a state law for being too democratic.  Not only has the Court never done such a thing, it has repeatedly held that claims of this sort may not be entertained by federal courts. [Motion to Dismiss, p.5-6]

The Motion proceeds to highlight the danger of judicial activism that would inevitably result:

Beyond the “lack of judicially discoverable and manageable standards,” the claims presented here would entangle the Court in policy determinations it must avoid. [Motion at 8]

Noting further the hypocrisy of the plaintiffs’ argument that ” some direct democracy should be upheld, so long as it results in their preferred policy” [Motion at p.8] the state concludes

It would be difficult to imagine a more glaring example of “a policy determination of a kind clearly for non-judicial discretion.”  Baker, 369 U.S. at 216.

Noting the “narrow and limited authority” of judges, the Motion cites an earlier Federal court ruling:

Our entire System of Government would suffer incalculable mischief should judges attempt to interpose the judicial will above that of the [coordinate branches], even were we so bold as to assume that we can make better decisions.”) [ Pauling v. McNamara, 331 F.2d 796, 799 (D.C. Cir. 1963)]

Now where have we heard that before?

In fact, as the Motion further elucidates,

B. The Supreme Court has specifically held that claims like Plaintiffs’, based on citizen initiative power to tax, are nonjusticiable political questions [Motion at 11]

In a deliciously ironic twist, the Motion even cites the Colorado Supreme Court’s arrogation of legislative authority to the judicial branch in the Salazar v. Davidson redistricting case:

In Salazar, the court extended this rationale to include the courts.  79 P.3d at 1232-33, 1236-37.  Neither of these decisions has been disturbed.  See Colorado General Assembly v. Salazar, 541 U.S. 1093 (2004); Lance v Coffman, 549 U.S. 437 (2007) (refusing to address challenges to Salazar).  So even if Plaintiffs were correct that only a state’s “legislature” can enact laws, these cases require inclusion of the people (not to mention the judiciary) within that concept.

The remainder of the Motion addresses issues of Standing (in brief, the Plaintiffs don’t have any) to bring the case – which, while important, will most likely induce acute MEGO (“My Eyes Glaze Over”) in the typical (lay) reader and will not be recounted here.

Clear The Bench Colorado‘s sole critique of the state’s Motion to Dismiss is that the state did not seek attorney’s fees from the plaintiffs under C.R.S. 13-17-101 (to offset costs to taxpayers) for filing what is clearly a “frivolous, groundless, and vexatious” lawsuit.

Although an award of attorneys’ fees is rare (Clear The Bench Colorado won just such an award against “Colorado Ethics Watch” – CEW, pronounced “sue”, it’s what they do – one of only a few in the last decade) it can be done (although actually collecting on the judgement may take months, or years), when opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.

Such abuse of the courts for political posturing can and should be discouraged…

Additional references:
A more detailed (and highly informative) discussion of the constitutionality of the citizen initiative and referendum processes may be found in the Texas Law Review article, “A Republic, Not a Democracy?  Initiative, Referendum, and the Constitution’s Guarantee Clause” by Professor Robert G. Natelson.

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.