Outrage at Our Sorry Court

The Colorado Supreme Court has marked itself again as the most partisan court in our nation. When it had the chance to choose the constitution or cash-- it chose the cash. I have not been this outraged at our court since last summer’s land-grabbing decision in the Telluride case. News coverage here and here. Mount Virtus also had an excellent post on this case.

Today’s case is Mesa County Board of County Commissioners v. Ritter (slip. op. 08SA216) (this was the first site to have the full opinion).

The Colorado Supreme Court was asked a simple question (paraphrased): Whether SB 07-199s constitutes a “tax policy change” resulting in more revenue for the government, and thereby requiring consent of the people under article X, section 20 of the Colorado Constitution (The “Taxpayer Bill Of Rights” or TABOR).

The Colorado Constitution is clear: when deciding if something is tax policy change, the presumption favors the lower taxes ("[i]ts preferred interpretation shall reasonably restrain most the growth of government." Colo. Const. art. X, § 20(1)).

The majority chose to ignore this mandate of the constitution and instead put one of the most onerous standards of proof on the tax payer: beyond a reasonable doubt. (See also Barber v. Ritter 196 P.3d 238 (Colo. 2008)). As you fans of Law & Order know, BRD is a very difficult hurdle to clear-- indeed it is easier for the state to take your children away (clear and convincing evidence) or make a corporation pay millions of dollars if their product kills people (preponderance of the evidence-- more likely than not).

The majority chose to presume that the tax change was constitutional. Justice Eid, the only rational voice on the court, put it best:

“In my view, the presumption of constitutionality cannot be used as a cover to excise article X, section 20 from our Constitution. The wisdom of that constitutional provision is a question for the voters, not this court, to decide.”

Now to the heart of the case: TABOR requires a vote of the people for any tax policy change that results in a net gain for the government. Put simply the government needs to ask before taxing more. (See Colo. Const. art. X, § 20(4)(a) and §20(7)). Attorney General Suthers, on behalf of the people, argued that the plain, easy meaning of the text be given full effect. If the government wants money, then it should ask, as our constitution requires.

But the Colorado Supreme Court did not want to read the plain meaning of the text-- they wanted the money for the state. The majority chose to not read the text with specificity (a shock to anyone who knows lawyers: what? Read a word loosely? What lawyer does that?). Further, the majority cared more about the “practical” effect on government-- that it would be difficult to raise taxes otherwise. That is precisely the point of TABOR!

Justice Eid’s final words on the case are perfect:

“The purpose of article X, section 20 "is to require that the voters decide for themselves the necessity for the imposition of new tax burdens." [. . .] Today the majority deprives the voters of this opportunity regarding SB 07-199. I therefore respectfully dissent.”

Except I do not respectfully dissent. I shake my head in shame that our highest court is so partisan as to ignore the constitution. They would make Justice Taney (who wrote Dread Scott) proud.