Colorado Legislators, CUT (Colorado Union of Taxpayers) file Amicus Brief opposing “Fenster’s Folly” frivolous anti-TABOR lawsuit

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 – and, after several rounds of motions and counter-motions, allowed to proceed to trial in July 2012 (despite clear constitutional precedent disallowing challenges on the basis of the “Guarantee Clause”) – entered a new phase today with the filing of an Amicus (“friend of court”) brief in the state’s interlocutory appeal to the 10th Circuit Court of Appeals.

The Amicus Brief, filed by Colorado legislators and the Colorado Union of Taxpayers (CUT) in opposition to the frivolous Fenster lawsuit, challenges the plaintiffs’ (several anti-TABOR current and former state legislators) lack of standing to file, underlines the fact that the lawsuit’s claims present a “nonjusticiable political question” and highlights the importance of preserving the separation of powers that could be jeopardized by a court ruling striking down the TABOR constitutional amendment.

Some key points:

• The General Assembly’s power to propose taxes has always been subject to numerous constitutional limitations, qualifications, and exemptions.
• And the people retain ultimate veto authority over all acts of the General Assembly, including taxation and spending.

Id. art. V, § 1 (“The legislative power of the state shall be vested in the general assembly . . . but the people reserve to themselves the power . . . at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.”).

• TABOR’s primary restraint on the legislature is procedural, not substantive. … It is this element of democratic accountability and constitutional restraint that Plaintiffs challenge in this litigation.4
• The district court erred by determining that the claims here, all based on the Guarantee Clause, do not present a nonjusticiable political question.8

Where the Guarantee Clause is concerned, the Supreme Court has twice unequivocally shut the courthouse doors, in order to prevent “the inconceivable expansion of the judicial power and the ruinous destruction of legislative authority in matters purely political which would necessarily be occasioned by giving sanction to” Guarantee Clause claims in federal court. Pacific States Telephone & Telegraph Co. v. State of Oregon, 223 U.S. 118, 141 (1912); see also Luther v. Borden, 48 U.S. 1, 42 1849).9 The district court brushed aside these precedents because it considered them fact-bound. Neither opinion supports such a conclusion.10

• If the district court were to conclude that TABOR renders the Colorado Constitution unrepublican, that judgment “would necessarily affect the validity, not only of the particular statute which is before us, but of every other statute passed in [Colorado] since the adoption of [TABOR].”  Pacific States, 223 U.S. at 141. The Constitution vests Congress with the sole authority to judge whether the Guarantee Clause has been satisfied in order to avoid the constitutional crisis that would result from enlisting the federal courts.
• The concept of justiciability, whether embodied in the standing or political question doctrines, is intended to preserve the separation of powers. … This fundamental concern about the “the proper—and properly limited—role of the courts in a democratic society,” Allen, 468 U.S. at 751, makes swift dismissal of the instant case critically important.
• The doctrine of separation of powers applies particularly to the judicial branch, preventing it from involving itself in potentially political disputes.

As previously noted, the lawsuit is lacking in legal merit, and constitutional case law precedent (including two relevant Supreme Court of the United States [SCOTUS] decisions, as also noted earlier) is clear 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).  Constitutional constraints on government are, by definition, constitutionally allowed – failing to dismiss this clearly frivolous lawsuit would 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.

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).

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.