Taxpayer’s Bill of Rights
Colorado Car Tax (er, ‘FASTER’ vehicle registration “fee”) increase on trial this week
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 was challenged in court as a violation of the Colorado state Constitution (specifically, Colorado Constitution Article X, Section 20 – Taxpayer’s Bill of Rights, TABOR).
That court challenge is on trial this week.
The court declined to grant Plaintiff’s Motion for Summary Judgment which was filed earlier this year, despite documenting the fact that the “”Colorado Bridge Enterprise” established under the FASTER legislation as a “TABOR-exempt business enterprise” (Ed. – see, “Life in the FASTER Lane – updates on the Colorado Car Tax“) fails to meet the constitutional standard to qualify for exemption from TABOR requirements.
Plaintiffs had the first shot at introducing and examining witnesses in the trial, which began Monday and continues into Wednesday (at least) this week.
Penn Pfiffner, in his capacity as Chairman of the TABOR Foundation and plaintiff, sent out an update to people on the TABOR Committee mailing list earlier today:
Five witnesses; two heroes.
Plaintiffs (us) get to go first. One central fiction to keep in mind is the scheme declares that as you drive over certain bridges on the highway system, you are paying tolls to do so; tolls which are collected through a “safety surcharge.” The first two witnesses were Ms. Chris Sammons and Willie Wharton who both explained that they had to register vehicles and therefore pay the bridge surcharge “fee,” although those specifically identified vehicles never cross a single bridge. They did you proud, providing testimony that was calm, convincing, certain, occasionally humorous, and very credible. To me, they are my newest heroes. Both took a day off, drove in from Grand County (think, from beyond the western border of Rocky Mountain National Park), leaving very early to get to Denver on time. Willie had to spend one of his vacation days to do so, and the trial managed to fall during the very busiest time of his professional year. Chris had to put aside the demands of her ranch and small businesses, and miss a school function for one of her two teenagers. These two deserve our special thanks.
Mr. Manley also called as witnesses the chief financial officer of the Colorado Department of Transportation (and “coincidentally” the chief financial officer of the Bridge Enterprise Fund) and the executive director of the Colorado Department of Transportation (and “coincidentally” of the Bridge Enterprise Fund). They had to answer his questions about how the supposedly separate entities operate and coordinate, and supply information about funding issues.
The final of the five witnesses did not conclude his testimony before business wrapped up yesterday, and that is where the trial was to continue from this morning. Paul Wingard was there to prove expert information about the values of the bridges. Any TABOR enterprise is limited to taxpayer subsidy of 10 percent of annual income. The calculated limit in this case is met only because most bridges were transferred from the Department of Transportation to the Bridge Enterprise at a value of zero. Mr. Wingard brings a rare combination of experience and talents to the discussion. He is a professional engineer who has consulted in that profession, is a licensed contractor who built bridges, served as a senior administrator for a road and bridge department of a county government in Florida, and has participated in arm’s-length transfers of tolled bridges and a highway. We found him through Reason Foundation’s Bob Poole. Paul submitted a report about the values of the Colorado bridges being transferred.
More on this important constitutional challenge as the situation develops.
Bottom Line:
Colorado taxpayers have been forced to pay literally $100 Million per year in additional ‘FASTER’ taxes (under the label of “fees”) while simultaneously becoming obligated for over $300 Million in debt – all without a vote of the people, as required under Colorado’s Constitution.
The lawsuit seeks to prevent “continued enforcement and maintenance of the bridge safety surcharge” (i.e. stop the illegal collection of a portion of the Colorado Car Tax) and require that “all “[r]evenue collected, kept, or spent illegally” be refunded” – as mandated under the Colorado Constitution.
Now THAT would be a welcome “tax refund” for all Coloradans.
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.
The Colorado Car Tax – er, ‘FASTER’ “vehicle registration fee” increase – court challenge moves forward
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).
The most recent development in the case (the ‘FASTER’ lawsuit was initially filed in May 2012) occurred last week with the filing of a ”Plaintiff’s Motion for Summary Judgment” in the case (a motion for summary judgment is filed based on the existing documentary record prior to trial claiming that all factual and legal issues can be decided in the moving party’s favor).
The Plaintiff’s Motion documents the fact that the “”Colorado Bridge Enterprise” established under the FASTER legislation as a “TABOR-exempt business enterprise” (Ed. – see, “Life in the FASTER Lane – updates on the Colorado Car Tax“) fails to meet the constitutional standard to qualify for exemption from TABOR requirements, on two main grounds:
A. The CBE Does Not Function As A Business Because It Has The Power To Levy A General Tax; and
B. The CBE Receives More Than Ten Percent Of Annual Revenue In Grants From CDOT
(including a $14.4M grant and the “gift” of 56 bridges from the Colorado Dep’t Of Transportation)
The Motion makes it crystal clear that the CBE “was created for the sole purpose of attempting to circumvent TABOR.”
Under FASTER, the CBE has forced Coloradans to pay “bridge safety surcharge” taxes approaching $100 million annually, without seeking the voter approval required by TABOR. See CBE 2010 Annual Report (“2010 Annual Report”) at 3.1 The CBE has also issued $300 million in new government bonds, again without a TABOR-required vote of the people. By taking these actions without a vote of the people, defendants have violated the rights of [Coloradans] to vote on the imposition of new taxes and debt, as guaranteed by TABOR.
The Motion further documents the self-evident statement that
The CBE is not a business enterprise exempt from TABOR because it generates revenue by levying a general tax, rather than by engaging in market transactions. TABOR-exempt enterprises may not levy taxes, because “[t]he ability to levy general taxes is inconsistent with the characteristics of a business.”
The purported “business” character of the CBE is belied by how it “makes” money:
The CBE’s revenue is not derived from “market exchanges taking place in a competitive, arms-length manner,” but rather from the bridge safety surcharge—a compulsory tax collected without regard to any benefits conferred to payers.
Calling the Colorado Car Tax a “fee” is also belied by the nature of how it is levied, on whom, and who “benefits” from the charge; calling it a “fee”
does not comport with reality because the surcharge shares none of the characteristics of a fee as defined by the Colorado Supreme Court and is not levied to provide “a specific service to the persons upon whom the fee is imposed and at rates reasonably calculated based on the benefits received by such persons.”
The surcharge is therefore a tax, and not a fee.
Colorado taxpayers have been forced to pay literally $100 Million per year in additional ‘FASTER’ taxes (under the label of “fees”) while simultaneously becoming obligated for over $300 Million in debt – all without a vote of the people, as required under Colorado’s Constitution.
The lawsuit seeks to prevent “continued enforcement and maintenance of the bridge safety surcharge” (i.e. stop the illegal collection of a portion of the Colorado Car Tax) and require that “all “[r]evenue collected, kept, or spent illegally” be refunded” – as mandated under the Colorado Constitution.
Now THAT would be a welcome “tax refund” for all Coloradans.
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.
Defending the Constitution – Why 9/11/2001 still matters today (11 years later)
“It is Tuesday morning, the 11th of September… and you will not forget this date.”
(TV reporter, unknown, reporting from NYC as events unfolded on the morning of 9/11…)
11 years ago today, the most horrific attack ever carried out on American soil claimed the lives of thousands of Americans, making clear that “there’ll be no shelter here – front lines are everywhere.”
Looking back, it occurred to me that I’ve since spent most anniversaries of that fateful Tuesday morning – forever burned into the American psyche as, simply, 9/11 – on duty away from home.
2002: Afghanistan; 2003: Fort Benning, Georgia; 2005: Operation Katrina, New Orleans (hurricane disaster relief/recovery operations); 2006: Fort Bragg, North Carolina; 2009: Camp Williams, Utah; and last year, 2011: Fort Indiantown Gap, Pennsylvania.
My experience in this regard is hardly unique – indeed, I’ve spent less time on duty away from home than many others who proudly wear the uniform – a mere token of service willingly rendered in defense of our nation, and the Constitution we are sworn to support and defend.
Sadly, many of the men and women in uniform serving on that day and since – military, NYC Police & Port Authority, and FDNY – were not “invited” to the 10th anniversary of 9/11 at Ground Zero ’due to “lack of room”. Funny – they weren’t “invited” on that fateful day in 2001 either – they just “showed up” and did what needed to be done.
However, America isn’t about the politicians, officials, and various muckety-mucks who were pontificating at that “official” event and others today.
America is about the brave people – often bearing only the proud title of “Citizen” – who just “show up” to do what needs doing.
Defending the Constitution – Why 9/11 still matters today (reprise)
Clear The Bench Colorado joins millions of Americans across the country in somber remembrance of the 9/11 attacks on our nation.
What does this have to do with holding our Colorado Supreme Court justices accountable to the rule of law and the Colorado Constitution? Quite a lot, actually…
As a proud veteran of the U.S. military (including service in the Colorado Army National Guard), I take my oath of enlistment – “I will support and defend the Constitution of the United States and the State of Colorado [emphasis added] against all enemies, foreign and domestic” - seriously; very seriously.
Many of our elected (and unelected) officials seem to have a much more cavalier attitude towards their own oath of office.
Colorado Supreme Court justices also swear a similar oath on taking office, which begins:
“I will support the Constitution of the United States and the Constitution of the State of Colorado.”
Note that the judicial oath of office does not state “I will support only those parts of the Constitution that I like or with which I personally agree or empathize.”
Yet the Mullarkey Court has consistently ruled against the Colorado Constitution’s Article X, Section 20 (TABOR) in every case it has heard – despite the clear intent and letter of the law that “[i]ts preferred interpretation shall reasonably restrain most the growth of government.”
The Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, Chief Justice Mary Mullarkey) are oathbreakers – and dishonor the service of the men and women of the United States military and law enforcement agencies who put their lives on the line to support and defend our Constitution. They have proven themselves unworthy of the high office they occupy.
Another important lesson of 9/11 is that individuals matter – and fighting to defend your rights, and your lives, is the only way to preserve your rights (and your life, in extremis) when under attack. The true heroes of that day were not only the firefighters but also the ordinary citizens who acted to save lives – and the brave passengers on Flight 93 who fought back against the hijackers on the 4th plane and died not as victims, but as American heroes.
We can no longer be under any illusion – as the passengers on Flight 93 discovered – that our rights and lives are NOT under attack; we are threatened by enemies both foreign and domestic. The nature of the threat (and appropriate response) is different, but the need to take action, to defend your rights – remains the same.
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.
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.
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.
Clear The Bench Colorado called it (back in 2010): Federal court strikes down Colorado’s unconstitutional ‘Amazon Tax’
Clear The Bench Colorado called it (back in 2010): as reported in the Denver Post (“Federal court tosses Colorado’s Amazon tax“), the Denver Business Journal (“Colorado’s ‘Amazon tax’ struck down“) and ably analyzed on the View from a Height blog (“Amazon Tax Bites The Dust“) – the unconstitutional, and never-collected, Colorado ‘Amazon Tax’ was overturned in federal court.
Clear The Bench Colorado was at the forefront of the opposition to the unconstitutional “Dirty Dozen” tax increases passed by the Colorado Legislature in 2010 – testifying before the House and Senate Finance Committees that the tax increases were violations of the rights of Colorado citizens under the Colorado Constitution (Article X, Section 20: Taxpayers Bill of Rights) to be consulted (by vote) before being subjected to more or higher taxes, despite an interpretation of the Colorado Supreme Court ruling in the “Mill Levy Tax Freeze” case that the requirement to ask first could be ignored.
The 2010 internet sales tax (or “Amazon Tax”) House Bill 10-1193: Sales Tax Out of State Retailers (Pommer/Heath) was among the worst of the “Dirty Dozen” tax increases from both a constitutional and policy perspective, since previous court rulings had already held that a state’s attempts to regulate commerce in other states (as this tax attempted to do) ran afoul of the U.S. Constitution.
Clear The Bench Colorado Director Matt Arnold testified before both the state House and Senate Finance committees that the Amazon Tax was a violation of both the Colorado Constitution (TABOR – Article X, Section 20) and the US Constitution before the law was passed back in 2010 and boldly predicted that the law would be challenged – and be struck down – in federal court.
Instead of heeding the warning, the Democrat-controlled legislature passed what was clearly an unconstitutional law (depending, no doubt, on a then reliably anti-constitutional Colorado Supreme Court to uphold the law) which not only failed to collect any tax revenue, but wound up costing the state tens if not hundreds of thousands of taxpayer dollars to defend the indefensible in federal court when the law was (predictably) challenged – and (predictably) overturned.
It’s worth noting that the challenge was filed in Federal court, not in the state courts, because the plaintiffs clearly understand that the Colorado Supreme Court has established a pattern of failing to uphold the law (as written) and that the current majority on the court would have a vested interest in striking down any challenge to the tax increase law since it relied explicitly on an interpretation of their ruling in the “Mill Levy Tax Freeze” case. It’s a sad state of affairs when businesses and consumers cannot count on the courts in our state to uphold the rule of law – part of why Colorado is regarded as a “judicial hellhole.”
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.
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.
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.
2011 Year in Review: Colorado Courts Continue to Play Politics
Colorado Courts Continue to Play Politics in 2011…
Another tumultuous year has come and gone for the Colorado judiciary – and once again, Colorado Citizens and taxpayers have been hammered by the gavels of Colorado judges pounding their personal preferences over the will of the people – and the rule of law.
Last year closed with Colorado being declared a “judicial hellhole” by a national judicial evaluation organization (one of only three state supreme courts nationwide to qualify for the “honor”, joining Michigan and perennial favorite West Virginia in being so recognized). The 2011 legislative session failed in repealing all but two of 2010’s unconstitutional “Dirty Dozen” tax increases (facilitated by the Colorado Supreme Court) or the even more onerous 2009 “FASTER” Colorado Car Tax legislation (aided and abetted by yet another anti-constitutional ruling by the Colorado Supreme Court’s “Mullarkey Majority” enabling taxes to masquerade as “fees”), and even almost passed another tax increase (the “movie-ticket tax“) attempting to exploit the court’s creation of anti-TABOR “loopholes.”
Spring and Summer was dominated by legislative battles over congressional redistricting (sadly, the state senate reprised the 2000 playbook of abdicating responsibility to send it to the courts) and the Colorado Reapportionment Commission’s public hearings on re-setting the boundaries of our state legislative districts. Both issues came to a head in court battles during the Fall, with the Colorado Supreme Court’s ultimate decision in both cases (determining the political shape of Colorado for the next decade) coming in early December (December 5th & December 12th, respectively).
Colorado courts were also a central battlefield for Education policy, as one Denver District judge threw out Douglas County’s attempts to enable greater school choice, and another Denver District judge declared the state system of funding schools “unconscionable” while advancing the power of the courts to determine “proper” levels of school funding (despite the Constitution’s delegation of that power to the legislative branch) – although that decision is likely to be overturned after an expensive (and long) appeal to the Colorado Supreme Court.
In fact, 3 out of 4 “Top Colorado Political Stories of 2011” directly involve Colorado’s politicized judiciary (and the remainder, the voter rejection of tax increases at the ballot box, is juxtaposed against yet another court-approved tax increase the day before the vote):
- Redistricting/Reapportionment
- Failure of Prop 103
- Lobato decision
- Douglas County school vouchers
Cases such as Lobato – particularly Rappaport’s biased ruling – and the politicized nature of the court’s involvement in the congressional redistricting and state legislative reapportionment cases – highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government. Our courts have an important – even vital – role to play in our society and system of government. Deciding issues of policy – instead of fairly and impartially upholding the law – is not it.
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.
State Education Board joins Governor Hickenlooper in bipartisan appeal of Denver judge’s ruling on Lobato school-funding lawsuit
Colorado’s State Board of Education voted 4-3 Tuesday morning to appeal Denver District Court Judge Sheila Rappaport’s ruling against the state in the Lobato school funding lawsuit. Colorado Governor John Hickenlooper had officially announced last Wednesday* that the state would appeal Denver District Court Judge Sheila Rappaport’s ruling that the state’s education funding is not “thorough and uniform” as referenced in constitutional language (Colorado Constitution, Article IX, Section 2). Rappaport’s 183-page ruling also paved the way for court-ordered tax increases, stating:
“It is also apparent that increased funding will be required.”
The state education board’s decision to appeal the Lobato ruling is significant because although the board’s vote to appeal Rappaport’s ruling was decided on a party-line basis (Education News Colorado)
(SBE’s four Republicans, Bob Schaffer, Marcia Neal, Paul Lundeen and Deb Scheffel, voted for appeal while Democrats Elaine Gantz Berman, Jane Goff and Angelika Schroader voted no)
the board joins Democrat Governor John Hickenlooper and Republican Attorney General John Suthers in a broad, bipartisan coalition of state elected officials seeking to overturn judicial usurpation of executive and legislative authority.
Governor Hickenlooper and Attorney General Suthers had earlier warned of “devastating” consequences for the state if the Lobato plaintiffs were successful in forcing additional school spending.
Although the lawsuit (and Rappaport’s ruling) is likely to be overturned (thanks to the departure of former Chief Justice Mullarkey and the more recent resignation of Justice Alex Martinez, 2 of the original 4 votes keeping the Lobato lawsuit alive in 2009 are now gone), appealing the case will cost Colorado taxpayers plenty:
[Mike] Saccone [spokesman for the attorney general's office] said the legislature has appropriated up to $3.5 million to defend the state against the suit.
This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).
If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.
The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.
Read more about the Lobato school funding case in these articles:
- “Judicial Overreach” (Pueblo Chieftain editorial, 14 December 2011)
- “Judge Sets Constitution Aside in School Finance Ruling” (Audio, Education Policy Center, 12 December 2011)
- “Victory for Lobato Plaintiffs” (Education News Colorado, 9 December 2011)
- “Lobato case primer” (Education News Colorado, 11 August 2011)
- “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
- “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)
- “Lobato education-funding budget-buster aided & abetted by Colorado Supreme Court” (8 August 2011)
The Attorney General’s office has also compiled a full list of key pleadings and court decisions in the Lobato case.
Cases such as Lobato – particularly Rappaport’s biased ruling – highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government. Our courts have an important – even vital – role to play in our society and system of government. This is not it.
* Governor Hickenlooper responded to a question at a 13 December 2011 town hall event about Lobato that he was leaning towards an appeal, since the court’s ruling “clearly violated TABOR” and Colorado voters had recently rejected a tax increase purportedly targeted for education funding (Prop. 103).
The Constitution says we can’t raise taxes without a vote of the people – the people just voted specifically on more revenues for education, and the people pretty clearly voted 2-to-1 that this was a bad idea. So how can the courts say that we should do it?
Governor Hickenlooper clearly disagreed with Rappaport’s ruling, and clearly expects to win on appeal, since the alternative would plunge the state into a constitutional crisis:
“Let’s say that the Supreme Court agrees with the district court – if that’s the case, then we’ve got the Constitution versus the Supreme Court.”
Listen to audio update on the Lobato appeal (playing this week on 560KLZ The Source)
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.
Friday Funnies: …and a Leftist Judiciary! (reprise)
Welcome to the 2011 Christmas edition of the Clear The Bench Colorado Friday Funnies!
Another tumultuous year has come and gone for the Colorado judiciary – and once again, Colorado Citizens and taxpayers have been hammered by the gavels of Colorado judges pounding their personal preferences over the will of the people – and the rule of law.
Last year closed with Colorado being declared a “judicial hellhole” by a national judicial evaluation organization (one of only three state supreme courts nationwide to qualify for the “honor”, joining Michigan and perennial favorite West Virginia in being so recognized). The 2011 legislative session failed in repealing all but two of 2010′s unconstitutional “Dirty Dozen” tax increases (facilitated by the Colorado Supreme Court) or the even more onerous 2009 “FASTER” Colorado Car Tax legislation (aided and abetted by yet another anti-constitutional ruling by the Colorado Supreme Court’s “Mullarkey Majority” enabling taxes to masquerade as “fees”), and even almost passed another tax increase (the “movie-ticket tax“) attempting to exploit the court’s creation of anti-TABOR “loopholes.”
Spring and Summer was dominated by legislative battles over congressional redistricting (sadly, the state senate reprised the 2000 playbook of abdicating responsibility to send it to the courts) and the Colorado Reapportionment Commission’s public hearings on re-setting the boundaries of our state legislative districts. Both issues came to a head in court battles during the Fall, with the Colorado Supreme Court’s ultimate decision in both cases (determining the political shape of Colorado for the next decade) coming in early December (December 5th & December 12th, respectively).
Colorado courts were also a central battlefield for Education policy, as one Denver District judge threw out Douglas County’s attempts to enable greater school choice, and another Denver District judge declared the state system of funding schools “unconscionable” while advancing the power of the courts to determine “proper” levels of school funding (despite the Constitution’s delegation of that power to the legislative branch) – although that decision is likely to be overturned after an expensive – and long – appeal to the Colorado Supreme Court.
Although remaining mindful that what’s at stake – holding our judiciary accountable for serial violations of our constitutional rights (to vote on taxes, even when taxes are called “fees”; defend our property against unjust seizure; bear arms in self-defense; and too many others to list) is serious business, all work and no play makes Matty a dull boy.
Although still awaiting payment a year later after “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) was once again ordered to pay Clear The Bench Colorado thousands of $ in legal fees (owed since the judge’s original ruling in July found their complaint “frivolous, groundless, & vexatious”) brings a rueful chuckle, the following video (even if focused on the national level) elicited a hearty laugh:
…and a Leftist Judiciary!
While still afflicted with the (black-robed) ghosts of Christmas past in our Christmas present, we can still act to save our Christmas future. Continue to support Clear The Bench Colorado with comments (Sound Off!) and contributions. Freedom isn’t free – nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.