Frivolous anti-TABOR lawsuit (“Fenster’s Folly”) gets hearing before Federal judge, who questions Supreme Court precedent

The frivolous, groundless, and vexatious politically-motivated lawsuit attempting to overturn a Colorado Constitutional Amendment (the Taxpayer’s Bill of Rights, colloquially known as “TABOR”) filed in Federal court last May got its day in court yesterday (Wednesday, 15 February) before U.S. District Court Judge William Martinez, in oral arguments on the state’s Motion to Dismiss Plaintiffs’ Substitute Complaint (actually filed back in August by Governor Hickenlooper and Attorney General Suthers – read more for analysis of the state’s Motion to Dismiss).

Legal precedent – including two relevant Supreme Court of the United States (SCOTUS) decisions – is clear; Fenster’s lawsuit is frivolous, the “Republican form of government” language in the Constitution’s “Guarantee Clause” (United States Constitution, Article IV, Section 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government“) has been repeatedly ruled non-justiciable (meaning, not subject to determination by the courts), and constitutional constraints on government (such as the TABOR amendment) are, by definition, constitutionally allowed.

The two relevant SCOTUS cases on the “Guarantee Clause” have unambiguously held the “Republican form of government” language to be non-justiciable:

In Luther v. Borden, 48 U.S. 1 (1849), the Supreme Court rejected an attempt to put the “republican character” of state government subject to judicial review, holding that “it rests with Congress to decide what government is the established one in a State … as well as its republican character.”  The court, properly exercising judicial restraint, held the “Guarantee Clause” to be a political question, not a judicial one – and therefore not subject to review by the courts (i.e. non-justiciable).

A more recent case, Pacific States Telephone and Telegraph Company v. Oregon, 223 U.S. 118 (1912) dealt specifically with a challenge to the use of citizen initiatives in states (such as Colorado’s TABOR Amendment). In that case, the Court also held that challenges to a state’s “republican character” are non-justiciable political questions:

The enforcement of the provision in § 4 of Art. IV of the Constitution that the United States shall guarantee to every State a republican form of government is of a political character, and exclusively committed to Congress, and as such is beyond the jurisdiction of the courts.

However, Judge Martinez appears disinclined to honor the Supreme Court precedent, based on his statements during the hearing.  As reported in the Denver Post,

U.S. District Judge William Martinez – while not ruling Wednesday – disagreed with key arguments presented by Colorado Attorney General John Suthers’ office in its defense of TABOR. Martinez flatly opposed the notion that a century-old Oregon decision settled issues around the present-day case.

On what grounds?  After all, as the state’s attorney (Assistant Attorney General Megan Paris Rundlet) argued, “The (Oregon) case does present almost precisely the same issues that are before this court.”

The Denver Post article (Judge questions precedent cited to defend Colorado’s TABOR) continues:

“That’s not how I see it,” Martinez replied, saying the Oregon case involved a challenge of the initiative process itself, while the lawsuit before his court was a challenge of an initiative’s result – in this case TABOR.

“It’s clear the plaintiffs are not challenging the citizens’ initiative ballot process in Colorado,” Martinez said. “If your argument is this case is the same case as (in the Oregon ruling) … I don’t see it that way.”

However, Judge Martinez – either intentionally or erroneously – appears to be misreading the case, since (as noted above) the Oregon ruling did NOT simply deal with the issue of the initiative process, but with the larger question of judicial review of the “Guarantee Clause” and the “republican character” of state government more generally.

Unfortunately, although it may be weeks or even months before Judge Martinez issues his ruling on the state’s Motion to Dismiss Plaintiffs’ Substitute Complaint, based on his comments and statements during the hearing, it appears likely that the case will continue to trial, and may ultimately end up before the United States Supreme Court – since overturning a state constitutional amendment by judicial fiat would have immense implications for the citizens’ initivative process and the right of the people to limit government power by constitutional limits nationwide.

If “We The People” cannot set constitutional limits on government power, then the very founding principles of this nation – indeed, the foundations of Liberty itself – are at risk.

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.

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