Lawsuit against Governor alleges violations of Colorado Constitution

By Jack Minor

The executive director of the Christian Family Alliance and  a conservative organization have initiated a lawsuit against Colorado Governor Bill Ritter and Jim Martin, the Executive Director of the Colorado Department of Public Health and Environment (CDPHE).  The lawsuit alleges the state violated the Colorado Constitution by issuing contracts to a Planned Parenthood affiliate and a Boulder abortion provider.

In 1984, Colorado voters approved the Abortion Funding Prohibition Amendment to the Colorado Constitution. The amendment prohibits the direct or indirect use of public funds to pay for abortions. In 2001, the CDPHE, under then-Executive Director Jane Norton, conducted an audit of the operations of Rocky Mountain Planned Parenthood and its affiliate, Planned Parenthood of the Rocky Mountains Services Corporation.  After finding Planned Parenthood subsidized the abortion operations of its subsidiary, the department ended funding for the organization.

However, under Governor Ritter’s administration, the CDPHE disregarded the court’s ruling and awarded five funding contracts to Planned Parenthood of the Rocky Mountains Services Corporation, and the Boulder Valley Women’s Health Center, which both provide abortions.  The lawsuit filed by Mark Hotaling, of the Christian Family Alliance of Colorado and the Alliance Defense Fund (ADF), alleges the funding of these operations is in direct violation of the Prohibition Amendment.

The state and Planed Parenthood filed a motion to dismiss the case claiming that Hotaling lacked standing. On January 14, 2010 the district court granted the motion. Hotaling and the ADF have since filed a motion to appeal. Hotaling told the Gazette, he most certainly does have standing as he pays taxes to the state of Colorado, and has the tax returns to prove it. Other arguments made are that the funding does not go to fund abortions, but other administrative and family planning functions of these organizations.

The ADF points out that it makes no difference where the state funds are used, the intent of the voters was clear.  Moreover, they cite a court precedents ruling that giving prohibited funds to an organization for other purposes is not acceptable because the funds are “fungible.” As part of their arguments they referenced banking executives who have received bailout funds from the federal government. There were instances where the bank executives had paid bonuses to their executives. When criticized for the bonuses several of the bank executives told Congress they had not used bailout money to fund the bonuses.

In a hearing before the House Financial Services Committee in February 2009, the bank executives received a harsh rebuke from Rep. Brad Sherman (D-CA) who said “Gentlemen, money is fungible. Don’t insult our intelligence. It is a rather silly claim to say ‘Well, we just used the depositors’ money or the investors’ money to pay the dividends and the bonuses, and then we put the taxpayers’ money in our vault pending the day when those depositors want to make a withdrawal.’ The issue is, what dividends and bonuses did you pay or will you pay while you are holding taxpayer money?” The ADF also cited legal cases that confirmed this issue of fungibility.

Hotaling said this is the largest pro-life case in the history of Colorado and the only time an elected official has been taken to court over the pro-life issue and he is encouraged by the state of the lawsuit and believes the appeals court will reverse the dismissal.

The ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith.  The organization was launched in 1994 and employs a unique combination of strategy, training, funding and litigation to protect and preserve religious liberty, the sanctity of life, marriage and the family.

 Courtesy of

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