Suit against TABOR should be dismissed, says attorney general

A lawsuit intended to throw out the Taxpayer’s Bill of Rights should be dismissed, Colorado Attorney General John Suthers said in a motion filed Monday.

Suthers said a suit filed last May in U.S. District Court in Denver challenging the constitutionality of TABOR is a philosophical and academic question that cannot be resolved by the courts.

“From the very first paragraph of their complaint, plaintiffs make clear that this case is an effort to have the courts remove what they see as an obstacle to their policy agenda: direct citizen participation in lawmaking,” he said in the motion.

“While their policy preferences lead them to focus their ire on one particular instance of direct democratic participation in Colorado, the Taxpayer’s Bill of Rights, their arguments ultimately would require the court to hold unconstitutional all forms of direct citizen lawmaking.”

The lawsuit was filed by 34 plaintiffs, including state lawmakers, county commissioners and school board members. Plaintiffs argue that since TABOR was approved by voters 19 years ago, the state’s finances have slowly eroded to the point where the Legislature can’t do its job.

“Since the passage of TABOR in 1992, the state of Colorado has experienced a slow, inexorable slide into fiscal dysfunction,” the lawsuit says. “Deterioration of the state’s funding base has been slowed by many attempts to patch, cover over or bypass the straightjacket (sic) of TABOR. However, events have demonstrated that a Legislature unable to raise and appropriate funds cannot meet its primary constitutional obligations or provide services that are essential for a state.”

Suthers argues that the courts ruled more than 150 years ago that such legal challenges are “nonjusticiable” political questions.

As a result, he said plaintiffs lack standing to sue.

He goes on to say that the lawsuit doesn’t attempt to remove other citizen-approved measures, such as Amendment 23 that voters approved in 2000 to increase state spending on education.

“Though these are all much more direct and intrusive instances of citizen control on legislative discretion, plaintiffs have no policy dispute with them,” Suthers writes. “Apparently, they would like the court to disapprove democracy only when it might limit the Legislature’s ability to raise taxes and increase revenues.”


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