Federal Judge Dismisses Frivolous Anti-TABOR Lawsuit

United States District Court Judge Raymond P. Moore dismissed the frivolous federal lawsuit seeking to overturn Colorado’s Taxpayer Bill of Rights (a.k.a. “TABOR”) constitutional amendment today (May the Fourth) for lack of standing.

The lawsuit, originally filed in May 2011 by a group predominantly composed of current and former elected officials (including both Democrats and Republicans, spearheaded by state legislator Andy Kerr) against the State of Colorado (“Kerr v. Hickenlooper”), sought to overturn the state constitutional amendment by targeting the amendment’s passage via the citizen initiative process – which the lawsuit claimed is an unconstitutional practice unduly restricting the “rights” of legislators and the legislative branch.

The lead attorney and “mastermind” behind the lawsuit is “superlawyer” Herbert L. Fenster – which, given that Fenster’s lawsuit was based on the most tenuous of legal grounds, led to the suit being known as “Fenster’s Folly” in many circles.

(See: TABOR, citizen initiatives targeted by frivolous Fenster lawsuit)

Despite the clear legal precedent (including multiple U.S. Supreme Court rulings) barring such claims based on the “political question” doctrine, and challenges to whether the plaintiffs even had standing to bring the complaint in federal court, federal judges allowed the complaint to proceed to trial against the bipartisan opposition of Colorado’s attorney general and governor (Hickenlooper), and eventually progressed all the way to the U.S. Supreme Court – which kicked it back to the 10th Circuit Court of Appeals to reconsider standing issues in June 2015.

After the 10th Circuit Court of Appeals ruled in June 2016 that the legislator plaintiffs lacked standing to bring the case, other plaintiffs regrouped and filed a Fourth Amended Complaint in December 2016 attempting to salvage the remains of the case.  They failed.

Today’s ruling by U.S. District Court Judge for Colorado Raymond P. Moore ruled that the remaining plaintiffs, including both individuals and government entities (“political subdivisions of the state” such as county and local governments, school district and special district boards, etc) lacked standing to bring suit and dismissed the case.

Plaintiffs allege that citizens have protectable interests in a Republican form of government and in their elected representatives discharging “inherently legislative” functions such as taxation and appropriation.  Plaintiffs allege that TABOR has injured citizens by injuring their elected representatives’ responsibilities and authority.

The judge acerbically noted that the Fourth Amended Complaint (a.k.a. FAC) included multiple references to legislator plaintiffs who had been previously ruled to lack standing –

“the inclusion of allegations in the FAC with respect to how elected officials have been injured by TABOR may have simply been an oversight or a failure to press the “backspace” button enough times when plaintiffs re-drafted their Complaint because there is certainly no basis to find that the plaintiffs who were or are legislators have standing in light of the Tenth Circuit’s remand order.”  [Order at 7]

Judge Moore continued by noting that

“[W]ith respect to the individual plaintiffs, plaintiffs make no effort to discuss, analyze, or even ruminate on how the elected officials, educators, and citizens have standing…
Article III standing requires, “at an irreducible minimum,” that a party show an actual or threatened injury as a result of defendant’s allegedly illegal conduct, the injury can be traced to the challenged action, and is likely to be redressed by a favorable decision. Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752 (1982). The Court should not have to wade into that analysis when plaintiffs have voluntarily decided to stay dry on the riverbank.” [Order at 8]

Judge Moore repeatedly ripped the poor quality of the anti-TABOR plaintiffs’ arguments:

“This still leaves the first test: whether plaintiffs seek to raise another person’s legal rights. Plaintiffs’ response to this inquiry is again demonstrative. For once, plaintiffs do address it; albeit with two meager sentences. Which effectively amount to the conclusory statement that plaintiffs seek to assert their own rights, rather than the rights of others. If all arguments could be won simply by restating the test and inserting a “do not,” then the Court’s job might be much easier. But, alas, that is not how things work.  …
In summary, plaintiffs have not attempted to meaningfully argue, and certainly not analyze, why the plaintiffs who are elected officials, educators, and/or citizens have either Article III standing or prudential standing. To repeat, it is plaintiffs burden to do so. Thus, their failure is determinative, and the Court finds that the plaintiffs identified in Section II.B. supra who are elected officials, educators, and/or citizens do not have Article III or prudential standing to pursue this case.”  [Order at 11]

Judge Moore then addressed whether the “political subdivision” plaintiffs had standing to sue – based on whether they were “seeking to enforce rights granted to them in the Enabling Act.”  Once again, he found the plaintiff arguments wanting:

“As with much of the standing inquiry, therefore, the Court is left without meaningful argument from plaintiffs. This is particularly troubling given that it is plaintiffs’ burden to establish their standing. In the specific context of the current inquiry it is equally troubling because whether a federal statute confers rights on a party is not necessarily straightforward, especially here where plaintiffs reference numerous provisions of the Enabling Act. (See ECF No. 151 at ¶ 30.) In their response, though, plaintiffs do not even identify the rights that the Enabling Act allegedly confers upon them.
… one conclusory statement is the extent of plaintiffs’ analysis. As a result, and perhaps understandably, in reply, defendant only directs its arguments toward the political-subdivision plaintiffs’ alleged right to a Republican form of government. (See ECF No. 163 at 6-7.) Why plaintiffs should be able to proceed on the basis of one conclusory sentence is beyond the Court.”  [Order at 17]

Addressing the plaintiffs’ core argument (claiming TABOR violates the “republican form of government” requirement), Judge Moore asks:

“What of plaintiffs’ main argument then—that TABOR violates the express terms of the Enabling Act requiring a Republican form of government? (See ECF No. 160 at 8.) Of course, plaintiffs provide no actual analysis of the provision(s) of the Enabling Act that expressly require such a form of government or why those provision(s) afford the political-subdivision plaintiffs aright to the same.”  [Order at 19-20]

and concludes

“the language of the Enabling Act reflects that the State Constitution was formed for the people of Colorado. Not the State’s political subdivisions.”  [Order at 20]

“As a result, the Court finds that the school-district plaintiffs do not have political subdivision standing to pursue this action because they are not seeking to enforce any rights granted to them under the Enabling Act.” See City of Hugo, 656 F.3d at 1260


For the reasons discussed herein, the Court finds that none of the named plaintiffs (be they political subdivisions, former or current elected officials, educators, citizens, or anything else) have standing to pursue this action. As a result, the Court GRANTS the motion to dismiss (ECF No. 156), and DISMISSES this action for lack of subject matter jurisdiction.

Plaintiffs’ motion requesting oral argument (ECF No. 167) is DENIED.

Bottom Line:

As noted by Clear The Bench Colorado way back in May 2011,

Given the unambiguous and overwhelming constitutional precedent against the case, Fenster’s Folly must be viewed for what it clearly is: a massive PR stunt that’s merely the opening salvo in part of a concerted attack on Colorado’s Constitution and the citizen initiative process in Colorado.

Six years and hundreds of thousands of taxpayer dollars later, CTBC has (yet again) been proven right.

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.


One Response to Federal Judge Dismisses Frivolous Anti-TABOR Lawsuit

  • Kathryn Isenberger says:

    Hi Matt, WOW – this is great news. I love listening to you whenever you are on the radio and am hereby reminded that I should donate to your great efforts. Would you be willing to speak to our Mountain Republican Women’s Club (we meet the 3rd Tuesday every month from 6-8:30 at the Rendezvous Tap & Kitchen in Bergen Park – just off the El Rancho exit on I-70)?

    Please email or call me if you would be willing to speak to us – we are BIG TABOR supporters!

    Sincerely, Kathryn Isenberger

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