Federal judge allows “Fenster’s Folly” frivolous anti-TABOR lawsuit to progress to trial

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 in May 2011 will now progress to trial on the basis of today’s ruling by U.S. District Court Judge William Martinez.

Judge Martinez dismissed the last attempt by the state’s attorneys to dismiss the lawsuit, filed by 33 plaintiffs who are mostly Democrats,  before going to trial (and sparing Colorado taxpayers significant expense).  Judge Martinez rejected the state’s argument that the plaintiffs lacked standing to sue; as reported in the Denver Post,

Martínez disagreed, writing in a 73-page ruling, “The court holds that the plaintiffs who are current members of the Colorado General Assembly have standing to bring this action.”
His ruling added, “The Court also holds that plaintiffs’ claims are not barred by the political question doctrine.”

The judge’s hostility to TABOR (and the state’s arguments to dismiss, based on clear constitutional precedent) has been evident for some time; indeed, we predicted back in February (following the initial hearing on oral arguments to dismiss the lawsuit) that Judge Martinez appeared “disinclined to honor the Supreme Court precedent” making it “likely that the case will continue to trial, and may ultimately end up before the United States Supreme Court.”

Reference state’s Motion to Dismiss Plaintiffs’ Substitute Complaint (which was filed back in August by Governor Hickenlooper and Attorney General Suthers – also, analysis of the state’s Motion to Dismiss).

Unfortunately, although the lawsuit is lacking in legal merit, and constitutional case law precedent (including two relevant Supreme Court of the United States [SCOTUS] decisions) has repeatedly ruled that 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“) is non-justiciable (meaning, not subject to determination by the courts), and constitutional constraints on government are, by definition, constitutionally allowed – now that the lawsuit is proceeding to trial, it will cost Colorado taxpayers hundreds of thousands in legal fees and costs, and will almost certainly 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’ initiative 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.

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.