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May 23, 2011 06:40 PM UTC

MADCO's Vindication (Pending); TABOR is Headed to Court

  • 56 Comments
  • by: droll

(I’ve long alleged that Doug Bruce was an anarchist, not a conservative, and TABOR was his bomb. – promoted by Aristotle)

Imagine my surprise this morning when I saw huge news on a site for talking about dead squirrels and saw nothing of it here.

TABOR is being challenged in court at long last. Turns out MADCO’s rants may have been read, or maybe he read someone else’s. I don’t know. In any event, the 1992 constitutional amendment is said by the plaintiffs to be unconstitutional.

The suit alleges that it violates the U.S. Constitution’s guarantee of a small-R “republican” government where elected representatives make decisions on behalf of voters.

There are currently no good guesses on whether or not the bi-partisan group of plaintiffs will be successful, the last case making this argument was over 100 years ago and the SCOTUS “punted” on this specific issue.

This decision could ultimately impact every citizen initiative ever passed, from mandating education spending to gay marriage. That’s for a brilliant legal mind to dissect.

Meanwhile, could the lack of coverage and the suit itself be more proof that the world really did start to end on Saturday?

http://www.newsfirst5.com/news…

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56 thoughts on “MADCO’s Vindication (Pending); TABOR is Headed to Court”

    2. long lists of Rs and Ds in support, including present and former office holders at various levels, more former among the Rs, no doubt for obvious reasons.

      1. Some of my favorites: Rep. Andy Kerr, Paul Booth, Rep. Lois Court, Stephanie Garcia, Rep. Dickey Lee Hullinghorst, Nancy Jackson, Rep. Claire Levy, Monisha Merchant, Rep. Michael Merrifield, Senate Majority Leader John Morse, Pat Noonan, Rep. Paul Weissmann, Sen. Norma Anderson, Alexander Bracken, Rep. Bob Briggs, Bruce Broderius, Rep. John Buechner, Stephen Burkholder, and Rep. William Kaufman.

        That’s not the whole list, just the ones that stuck out for me. Lots of people involved in education and transportation. Norma, for instance, is the person who taught me all I know about roads. Oddly substantial, but comes up woefully little.

        While there aren’t currently serving GOP legislators, there are mayors and council members. Big ups to them.

        1. and only non-formers among Rs I saw there were members of school boards but several former state legislators, a former mayor and a former County Commissioner. Still, it’s nice to have a list of Rs almost as long as list of Dems. Don’t see TABOR being over-turned in courts any time soon but nice try and good op to keep discussion of TABOR as massive fail and the whole trend away from small “r” republican government and toward direct democracy, sidelining our elected representatives, in the media ether.

  2. They won’t win.  The people of a state may place limits on what their state government may do.  

    The essential question is whether the people or a state constitution are the source of power.  As framed, a court is likely to decide in favor of the people–after all, the people could also vote to remove the restrictions of TABOR–and thus to uphold TABOR.

    1. The people cannot place limits on their state government if those limits violate the U.S. Constitution. The U.S. Constitution GUARANTEES republican forms of government. And Colorado’s Constitution is full of voter-initiated provisions that limit the decision-making authority of our elected representatives.  

      I think they have an interesting argument although I agree the chances of them winning are slim. But then again, predicting Court federal court decisions is a dangerous game.  

      1. You may safely assume I know that.  😉

        The point is that minimally limiting the power of the legislature does not convert the form of state government to a “non-republican” form.  The Supreme Court held in

        Pacific States Telephone and Telegraph Company v. Oregon, 223 U.S. 118 (1912) that whether a state is “republican” or not is a political question and thus non-justiciable.  And as wikipedia notes, Congress implicitly recognizes the “republican” form of government of a state every time it seats a Congressional delegation from that state.    

        1. I haven’t read the opinion, but you seem to be saying the Supreme Court ruled the Constitutional clause guaranteeing a republican form of government has no real legal teeth? That’s interesting. I’m not sure how much weight will be placed on a 100-year-old decision.

          As for TABOR “minimally limiting the power of the legislature”, that’s open for debate. I guess it depends on what you think the fundamental role of the legislature is.  

          1. The Supreme Court ruled that challenges to a state’s form of government are non-justiciable, which means they cannot be decided by a court.  The Court went on to say it is a “political question,” which means it is up to the other branches of government to decide, specifically Congress.  Hence, the challenge to TABOR, as framed, is extremely unlikely to prevail.

            As for a 100 year decision, Marbury is over 200 years old . . .

            In the grand scheme of things, limiting the government’s power to tax absent the consent of the governed is a minimal limitation on the power of the government in question.  While a sterile semantic argument can be made that it is not minimal, the Supreme Court is unlikely to agree, especially given the current makeup of the Court.

        2. whereas TABOR, funtions to limit the representative government and it’s ability to raise revenue. A vital component in balancing the states budget, which the legislature is constitutionaly bound to do. That is a huge part of what a legislature is for.. not just to make endless regulation and license plate checkoffs

          1. It is only your opinion that the power to “raise revenue” is a limit on “representative government.”  The Supreme Court would almost certainly defer to the stated will of the voters, and would point out that the voters enacted it, and the voters have the power to revoke it.  

    2. What about the people of Colorado determining that…

      … the gov’t shall not recognize th emarriage between any white and non-white?

      … the gov’t shall not prosecute lynch mobs, if the victim had it coming?

      …the gov’t shall not proseecute anyone who desecrates an Islamic mosque, becuase after all we’re at war with Islam.

      And a million other examples where  the people are not free to impose unconstitutional anything.

      1. There is no prohibition in the United States Constitution against the people of a state limiting the power of the state government to tax absent a vote of the people.  

        You have made the assertion that TABOR violates the federal constitution by somehow creating a non-republican form of state government, now please support it.  The U.S. Supreme Court case that is most directly on point declares it a political question and thus not for the courts to decide.  

        And you are surely reaching with your examples–argument by analogy is always suspect, especially when it is as hyperbolic as your chosen examples.

        1. 1)

          re pub lic (www.dictionary.com,   bolding is mine)

          1. a state in which the supreme power rests in the body of citizens entitled to vote and is exercised by representatives chosen directly or indirectly by them.

          2. any body of persons viewed as a commonwealth.

          3. a state in which the head of government is not a monarch or other hereditary head of state.

          2)

          from the US Constitution, Article 4, Section 4, Clause 1

          The United States shall guarantee to every State in this Union a Republican Form of Government…

          3) A republican form of gov’t, guaranteed to all states including Colorado,  is one where “supreme power” is exercised by our elected representatives.

          TABOR removes the “supreme power” of our elected officals by restricting their power to levy taxes to fund the budget they have approved.

          Yes, though the real power is the power citizens have to vote, the people by initiative have power to place restrictions upon our elected officials and gov’t in geneneral.  But under no circumstance do citizens have a right to abrogate the US Constitution.  

             

          2. The people voted to put TABOR in place and have the power to remove TABOR.  Thus, no abrogation of a “republican” form of government has taken place.  

            And as I noted, and as you studiously ignored, the Supreme Court case on point says that whether a state government is “republican” or not is a political question that cannot be decided by the courts.  

            Hence, the district court should dismiss the case sua sponte, as it is without the power to hear it.

            1. So let me say first, Mr Chief Justice White could write.    It’s dense, but not extraneous.

              The people have voted to put all manner of intiative and referenda in place. Some of which were still overturned by courts.

              Interesting the weight the majority placed on  Luther v. Borden.  I think the TABOR argument will be different, but as I’ve said in the past, and again  just above, I think it will be a difficult  argument to make.

              BTW- because of the later adoption of the so-called “single subject” rule, it would be practically impossible for “the people” to remove TABOR.  Not that that should or will mater to the feds.

              1. Fed. R. Civ. P. 12(b)(6) challenge–it does not state a claim upon which relief may be granted.

                Relief may not be granted in such a case because the question of whether a state government is “republican” or not is a political question that cannot be answered by the courts.  As I noted earlier, Congress implicitly recognizes the “republican” form of a state government every time it seats a state’s delegation.  

                How do you think the plaintiffs overcome that?

              2. Please note that I am not arguing against whether TABOR should be amended–I think it should be.  But I think the plaintiffs have chosen the wrong way to attempt to reform it, and have done it this way simply as a publicity stunt.  

            2. in this lengthy thread. But doesn’t the fact numerous government entities have deBruced or gone to voters for tax increases sort of undermine the “TABOR has us in a straightjacket” argument? And doesn’t Ref C sort of undermine that argument too?

              1. Again with the (IMHO) weak arguments, but there’s a difference between the state being hobbled by initiatives – which can be resolved by an action of the voters – and the legislature (read: republican form of government) being too severely hobbled, which the legislature cannot resolve on its own.

                1. specify how “republican” the form must be, and that the only answer to that question must come from Congress. Hence, the argument that a “limit” on a state legislature’s power is unconstitutional fails.

                  And whether the legislature is capable of resolving a problem on its own or not is irrelevant–the Constitution does not specify how much power a state legislature must have.  

                  1. You’re arguing this as if you’re right, I’m arguing this as I think it will be presented.

                    If this were a previously decided issue you might be more justified in posting the way you are, but perhaps you could tone it down a bit since you’re guessing just as much as we are.  Even if you’re a Constitutional lawyer, you’re still only arguing a case, not settled issues of law.

                    1. this IS a “previously decided issue.”  Pacific States says that whether a state government is “republican” or not is a political question and thus not something that can be decided by the courts.  

                      I mean no offense, but how it is presented doesn’t matter–it’s a pure question of law, not fact.  And so a district court will be bound by the precedent of Pacific States and to dismiss the case.  That’s why I believe it is a publicity stunt, designed to draw attention to the very real problems TABOR presents.  

                    2. I’m not a Constitutional lawyer either, but I was taught that Brown v. Board of Education specifically overturned the Dred Scot decision. So it seems that even “settled” matters can be heard by SCOTUS again.

                    3. If it were dismissed, the dismissal could be appealed.  If the appeal prevails, then the case would be heard on its merits.  And then once a verdict is reached, that verdict can be appealed.  Etc.

                      And yes, that’s how courts can change law.  The Supreme Court is not bound by its own precedent, although it is generally extremely reluctant to overturn long-standing decisions.  Lower courts ARE bound by the precedents of higher courts.  

              2. The fact that the fire department keeps saving your house from burning down is not an argument against leaving piles of gasoline-soaked rags on top of your stove.

  3. As long as constitutional amendements are legal, can’t voters put whatever they want in there?  Once it’s in there, is it any less part of the constitution than the original language that ‘guarantees republican government?’

    Original US Constitution language includes references to slavery.  Only an amendment makes it illegal today.  Would that be in jeopardy under the same logic?

    Under the prescriptions in the constitution, can’t citizens turn this place into a socialist dictatorship if they want?

    For the record, I am in favor of the initiatives to make it harder to amend the constitution.  As it stands now, the state constitution is fairly useless as a governing document.

    1. the US Constitution is the supreme law of the land, and it requires all the states to have a representative form of government. Only a change to that constitution would make any of your fevered imaginings possible.

      1. The same year that brought us the Epic Fail Amendment 2 also brought us Amendment 1.  Also known as TABOR.  I’m crossing my fingers that it follows Amendment 2 into “unconstitutional amendment hell.”

        1992 was Colorado’s electoral version of Jackass.

    3. A state Constitution cannot contain a provision which violates the U.S. Constitution.  As GP notes, Amendment 2 is a good example here in Colorado.  Another example would be an amendment which apportioned some of our U.S. Representatives at-large, violating the one person, one vote requirement.

      The people behind this suit are arguing that TABOR goes against the U.S. Constitution by restricting us from having a functional republican government.  It will be a tough case to argue – it’s definitely not a clear issue.

      1. Wouldn’t it have to be filed in federal court to argue a violation of the US Constitution?

        And if so, wouldn’t a plaintiff victory negate every state constitutional amendement in the country where such was done so through a direct vote by the people?

        For that matter, it would seem to negate any law that was put on the books by a direct vote of the people (non-referenda) because it circumvented the representative body’s right to exclusivity in writing laws.

        1. Wouldn’t a plaintiff victory negate every state constitutional amendement in the country where such was done so through a direct vote by the people?

          I’m not sure why, when presented with the case of Amendment 2, you’re still concerned.

          1. I thought that Am. 2 was ruled unconstitutional because it applied to a specific class of people?

            On the other hand, it’s my understanding that the plaintiff’s here are arguing that TABOR allows people to directly vote up or down on tax law.  In other words, the mechanism isn’t consistent with a republican form of government.

            Whereas, Am. 2 was ruled unconstitutional because it’s application was so, the plaintiffs here are arguing that the process (law-making) itself is unconstitutional.

        2. wouldn’t a plaintiff victory negate every state constitutional amendement in the country where such was done so through a direct vote by the people?

          That violate the U.S. Constitution.

          Or haven’t you been following the thread?

        3. And you can’t assume the Court’s decision will be all or nothing. Chances are if the plaintiffs win it will be a narrow decision applying only to TABOR-like initiatives that limit fundamental legislative duties like taxation.  

        4. Your burning question:

          Where was this filed?

          Wouldn’t it have to be filed in federal court to argue a violation of the US Constitution?

          Title of article droll’s post linked (I’ve added the boldfacing):

          Lawmakers challenge TABOR in federal court

        5. that the people filing the case are going to base it on the rather complete hand-tying that TABOR does to legislators financially, and that a ruling in favor would presumably limit itself to that kind of hand-tying.

          I’m just following down the path I think this suit intends to travel, but I’m not sure I agree with the claim.  What’s the difference between a balanced budget clause in the state Constitution – which almost all of the states have – and the restrictions of TABOR?  Where’s the line?

  5. I won’t call this a vindication unless the court also awards me my $100 from H-Man and GOPwarrior, and changes one or two other stupid things around here.

    (Does anyone really think it chould be called “pee-blo”?)

  6. I can’t see the public ever electing any of these school board members to any office, after they chose to stick their finger in the eye of the voters, by being plaintiffs in trying to overturn TABOR.  If they cannot function, in their current office, while under the voter approved constraints, then they should resign.  If they won’t, they should be recalled by their respective constituencies.

      1. I don’t hate democratically elected positions, but I resent when those who hold such posts, choose to thwart the will of the people who elected them.

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