Retired Justice Sandra Day O’Connor set off a storm Thursday by firing back at politicians, mostly Republicans, who bloviate against the courts and those mean “activist judges.”
Unfortunately, Colorado taxpayers are now suffering from the opposite problem. We could end up paying millions of dollars in needless interest costs because our judges on the Colorado Court of Appeals are too inactive. They’ve been sitting for months on a discredited nuisance suit aimed at stopping the FasTracks project approved by voters in 2004. Meanwhile, taxpayers are losing the chance to lock in the current low interest rates on the bonds.
This suit is as moot as a campaign promise by Henry Clay. It was filed by Independence Institute panjandrums Jon Caldara and Dennis Polhill in an effort to stop the election to authorize the $4.7 billion transit project. The transit foes claimed the ballot issue notice on FasTracks was improperly prepared because some comments by proponents were included in the “con” summary.
There are really no legal standards governing who writes what in such summaries, but the lawsuit did let Caldara and Polhill grab a few headlines and embarrass RTD a bit. A district court rejected their claims and refused to halt the election. They appealed to the Court of Appeals, which passed the issue on to the Colorado Supreme Court – which also rejected their claims and let the election proceed. FasTracks won with 58 percent of the vote. As a result, in Jan. 1, 2005, the RTD sales tax rose from 0.6 to 1 percent, with the increase earmarked for paying off the bonds that would finance the project.
That should have been the end of the tale, with Caldara and Polhill having a good cry and the rest of us having a 21st century transit system. But in the tradition of Charles Dickens’ “Jarndyce and Jarndyce,” Caldara and Polhill have been able to continue a stalling action in the courts at massive taxpayer expense.
The legal problem is that the Supreme Court didn’t quite kill the Caldara/Polhill suit, it sent it back to the Court of Appeals for further hearings. RTD filed an answer brief in November 2004. In July 2005, the Court of Appeals issued an order accepting the brief filed by RTD nine months earlier and ordering other parties to file briefs.
RTD, conscious of the fact that time is money where bond issues are concerned, asked the Court of Appeals for an expedited hearing. The request was denied.
I’ll spare you the stupefying details, but every few months since, we’ve had a motion to speed things up which, after sitting around for a few months, results in more time for more parties to file more opinions arguing about whether we should speed things up. The result is that 16 months after the voters approved FasTracks, the suit still molders in the Court of Appeals.
Who cares? There is no precedent for overturning the overwhelming judgment of the voters because two sore losers are hanging on to a nuisance suit.
Well, bond counsels and bond buyers, those gnomes of Wall Street, care – that’s who. RTD is ready to issue $500 million in bonds for work on the project. But as long as there is a technical possibility that the court would invalidate the election and repeal the tax, the bonds can’t go to market.
Interest rates are volatile. They’re already rising from their historical lows and the Federal Reserve Board is expected to give at least two more quarter-point bumps before it stops to survey the economic landscape. Home buyers know this and are rushing to lock up their financing before the rates rise yet again. But the nuisance suit is stopping RTD from locking in similar bargains for the taxpayers. RTD general manager Cal Marsella fears that rates may rise as much as 2 percent before the torpid legal pace finally produces a decision. That could mean taxpayers waste $250 million in unnecessary interest costs over the life of a $500 million bond issue.
In fairness to the Colorado courts, they’re understaffed and facing huge backlogs. But the possible waste of quarter-billion taxpayer dollars surely justifies moving this case out of the “argue forever” file and seeking a quick decision.
The name of the system is “FasTracks,” after all. Not “Legal Molasses in January.”
Bob Ewegen is The Denver Post’s deputy editorial page editor. He has written on state and local government since 1963.
