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.

Who Polices the Police?

SCOTUSblog does a great job of covering the Supreme Court Of The United States. In a recent article about the grants and denials of certiorari and various other orders, one case thrown in at the end caught my eye.

The case of Arizona v. Johnson (No. 07-1122) intrigues me. The issue is:

Whether, in the context of a vehicular stop for a minor traffic infraction, an officer may conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but had no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense.

HT: FourthAmendment.com

According to a passing reference in the New York Times,

A Tucson police officer testified that she had searched a passenger, Lemon M. Johnson, because he was wearing gang colors and seemed dangerous, not because he was suspected of having committed a crime.
The search yielded a gun and marijuana. An Arizona appeals court overturned Mr. Johnson’s conviction, saying the evidence against him should have been suppressed because the search was unconstitutional.

The SCOTUS jurisprudence is very complex for Fourth Amendment searches for occupants in a car. Due to the late hour, I cannot recall the exact names of the landmark cases (please feel free to help out in the comments section), but Fourth Amendment priciples are generally based on a balancing test. On one side is the individual's interest in "privacy" (really, his interest in not being molested/abused by the police) and on the other side sits the police officer's interest in self protection.

Certainly, as the gang shootout last night near the DNC's convention site demonstrates, the police have legitmate security concerns. (However, they get to carry guns and handcuff people too, so they are far from defenseless.)

Yet I cannot help but believe that our rights are very important. We do not want the police state that the United Kindom has become-- where big brother watches over your shoulder and it is a crime for old men to wear a hat lest they "hide their identities."

Lest you think I'm jumping too far: look at what the officer identified as the "basis to believe the passenger might be armed and presently dangerous." She said he was wearing gang colors. Guess what folks, gang colors encompass just about every general color possible. Indeed now police are saying that gang members no longer display their colors to avoid police detection. In other words, anyone wearing any color or "looking dangerous" (whatever that means) can be searched in a car they are riding in if the SCOTUS upholds the police officer's actions.

Based on the SCOTUS' tendancy to defer to the police, I suspect that the officer's actions will be upheld. Remember that it is police officers who serve as security detail for high-ranking judges (in the case of the SCOTUS, it is the Secret Service) and thus, in a very real way, the judges' lives depend on the police. That is why the judicary is so deferential to the police.

I do not fully know the facts of the case and I suspect that the suspect was a gangbanger scumbag, but rights need to be upheld for everyone, otherwise they apply to no one.