The Colorado Car Tax – er, ‘FASTER’ “vehicle registration fee” increase – challenged in court as violation of state Constitution

The Colorado Car Tax (er, “vehicle registration fee”) increase passed in 2009 (SB108, the so-called “FASTER” bill) is quite possibly THE most unpopular tax increase in Colorado history – made all the more repugnant by how it became law (exploiting a 2008 Colorado Supreme Court ruling which declared that “fees” don’t count as “taxes” to circumvent the constitutional requirement (under Colorado Constitution Article X, Section 20 – Taxpayer’s Bill of Rights, a.k.a. TABOR) to receive prior voter approval for any ‘policy change resulting in net revenue gain’ to the state).

After two years of legislative inaction failed to repeal or roll back the unconstitutional and unpopular tax increase, the ‘FASTER’ Colorado Car Tax is being challenged in court as a violation of the Colorado state Constitution (specifically, Colorado Constitution Article X, Section 20 – Taxpayer’s Bill of Rights, TABOR).

Despite being a central issue in the 2010 elections (Democrat Governor Bill Ritter chose not to seek re-election in large part because of the tax increase’s unpopularity; Senate sponsor Dan Gibbs also chose not to seek re-election; and House Sponsor Joe Rice was defeated by now-Representative Kathleen Conti largely on the strength of her campaigning on the Car Tax issue), the legislature has failed to overturn the clearly unconstitutional tax (or address other unconstitutional aspects of the legislation, including establishment of unaccountable “government-owned enterprises” to administer the tax – er, “fee” – collections and revenues).

It has long been clear that the proper venue for overturning this highly unpopular, regressive, and unconstitutional tax increase is NOT via the legislature (which is unwilling or unable to act) but via a court challenge.  Unfortunately, as long as the actively anti-TABOR “Mullarkey Majority” (and its successors) ruled the Colorado Supreme Court, prospects for a reasonable hearing on the merits (and interpretation actually based on the Colorado Constitution, as written) have been bleak.

However, due to recent changes in the composition of the state’s highest court (blatantly partisan and anti-TABOR Chief Justice Mary Mullarkey quit rather than face voters in 2010 and Mullarkey ally Justice Alex Martinez quit the court to take a Denver city job last Fall), along with the impending retirement of Mullarkey’s heir as Chief Justice (Michael Bender), a lawsuit challenging the ‘FASTER’ Colorado Car Tax (er, “vehicle registration fee”) increase might now have a chance.

Apparently judging the time to be ripe, the TABOR Foundation – represented by the Mountain States Legal Foundation – filed suit today (21 May 2012) challenging the constitutionality of the 2009 ‘FASTER’ Colorado Car Tax.  From the organization’s press release:

“In clear violation of TABOR, the General Assembly enacted and CDOT implemented a scheme to levy taxes and raise revenues without a vote of the people of Colorado,” William Perry Pendley of the Mountain States Legal Foundation, said in a statement.

The lawsuit targets not only the over $100 Million in (unconstitutionally-imposed) new taxes levied, but also the $300 million in new government bonds imposed by the Colorado Bridge Enterprise (one of the constitutionally dubious quasi-government “enterprises” established under the ‘FASTER’ law).

The Foundation seeks declaratory and injunctive relief and an order requiring refund of all revenues collected, along with the payment of interest, as required by TABOR.

The TABOR Foundation’s lawsuit highlights the fact that legislative action alone is frequently inadequate in preserving rights and freedoms – bad laws can (and should) be struck down by citizens (working alone or in groups) defending their rights in court.  The fact that it took years before the conditions were conducive to a court challenge also highlights the fact that elections to legislative or executive office are not the only votes that matter – underlining the critical importance of the judicial accountability movement spearheaded beginning in 2009 by Clear The Bench Colorado.

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.

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