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.

Student Indoctrination

The nannyists now want to ban plastic bags from grocery stores and big box retailers. The Denver Post and Colorado Television Channel 2 are reporting the story of a new attempt at the state capitol. Those who are familiar with the enviro-fanaticism know this is nothing new from the greens. The bill would tax each bag used (six cents per bag) and split the revenue between the vendor and an “education” program to raise environmental awareness. The end goal is to eliminate the use of the bags within three years.

What is disturbing about this story is who came up with the current bill: Kent Denver High School students. Wait… scratch that. The idea was programmed into the heads of the students from a teacher. What has been lost in the text stories linked above is a quick statement from one of the students (at the press conference) that this bill was part of a class project.

Such political action is inappropriate within the school structure. Although Kent is an independent school, students in K-12 programs face laws of compulsory education meaning that they must attend and complete school. Even assuming for argument that Kent is within its powers to hold such programs (as an opt-in school), the use of class time for political action is still inappropriate for a teacher has power over the students.

This law is another example of political action in the class room For example, remember the letters mandated by teachers telling President Bush to ban torture? Some students are sending letters to the anointed one now to end the Iraq war. All are the results of a teacher indoctrinating the class.

The classroom is a place to learn math, science, history, philosophy, and the other tools needed to be an intelligent citizen able to participate in our republic. The classroom is not a church in which the teacher preaches her political philosophies in coercion for the students to adopt the same.

The bill will most likely fail. The grocery stores are too big and employ too many people for state to add a tax and eventual elimination of the bags. The law would add a high cost to the average grocery store order (six cents per bag adds up quickly) and start to annoy customers. Of course, as a state law, the clientele of the stores would have little recourse. The bill does carve out an exception for small retailers, but small retailers rarely adequately service customers for everyday items.

If the grocery stores choose to charge for the bags, that is fine. I will not buy from their stores. That is the free market. When the government chooses to charge for the bags, that is a tax and a restraint on freedom for the sake of a very small but loud interest group. When teachers make my children to be political operatives, that is indoctrination.