TABOR debate in court of appeals
The 10th Circuit Court of Appeals will hear oral arguments today on whether a lawsuit challenging the constitutionality of Colorado’s Taxpayer’s Bill of Rights should go forward.
The suit, filed in U.S. District Court in 2011 by several current and former state and local elected officials, argues that TABOR violates the U.S. Constitution because it usurps one of their most fundamental powers, the ability to impose taxes, and that prevents the officials from doing the jobs to which they were elected.
“TABOR violates a fundamental requirement of the U.S. Constitution, that each state maintain a republican form of government,” said former Colorado congressman David Skaggs, one of the attorneys representing plaintiffs in the case. “That means, at least, a state legislature that can fund state government.”
Lawyers with the Colorado Attorney General’s Office, however, say the matter is a political question, and the Constitution bars the courts from deciding such matters.
Passed by voters in 1992, TABOR’s most fundamental provision requires that any tax increase be approved by voters, rather than the Legislature or local governments. It also limits how much government budgets can increase, requiring that any revenue received above that amount must be refunded to taxpayers.
Last year, U.S. District Judge William Martinez rejected an argument from the attorney general’s office that the suit is a direct attack on the state’s initiative and referendum process.
In his ruling, Martinez said that while citizens have the right to pass ballot measures, including amending the state’s constitution, they do not have the right to approve unconstitutional provisions, if they prove to be so.
It is that ruling that the attorney general’s office is appealing, saying the republican form of government, also known as the guarantee clause of the U.S. Constitution, isn’t threatened by citizen initiatives.
“In plaintiffs’ view, direct democracy, at least as to revenue matters, is inconsistent with a ‘republican’ government because it amounts to an ‘arrogation’ of legislative powers,” the attorney general’s office wrote to the 10th Circuit in appealing Martinez’s ruling.
“No authority supports plaintiffs’ reading of the guarantee clause, however. Over a century ago, the (U.S.) Supreme Court dismissed a similar challenge to a voter initiative as nonjusticiable.”
A three-judge panel of the 10th Circuit will hear arguments from both sides, including from numerous “friends of the court” that have filed briefs in support and opposition to the suit.
Such groups range from the right-leaning Independence Institute, which opposes the suit, to the left-leaning Bell Policy Center, which supports it.