TABOR suit not a threat, Skaggs says

Never mind what a federal lawsuit challenging the constitutionality of Colorado’s Taxpayers’ Bill of Rights is, former U.S. Rep. David Skaggs said Thursday.

What it isn’t is a challenge to the state’s initiative and referendum system as opponents of the suit allege, said Skaggs, one of several attorneys who filed the case in U.S. District Court in Denver this week.

Skaggs told The Daily Sentinel editorial board that the lawsuit will show how TABOR has violated the so-called Guarantee Clause of the U.S. Constitution, which guarantees states a republic form of government, and a federal law that sets the terms for Colorado’s statehood in 1875, which also allowed for a representative form of democracy.

“It is clear that by republican form of government, the founders envisioned essentially a representative democracy, which requires a legislature that can do its job,” said the Democrat, who represented the 2nd Congressional District in the 1990s. “It is a fact that TABOR fundamentally derogates from the Legislature’s ability to do its jobs, and that is to provide revenue sufficient to fund the necessary needs of the state.”

But because it targets TABOR directly and no other citizen-approved ballot question, it isn’t likely to lead to an unconstitutional ruling against the state’s initiative process, he said.

Skaggs said it’s no different than when the courts ruled Amendment 2 unconstitutional in 1996. Like TABOR, that amendment, which banned state and local governments from passing any laws giving special rights to gays and lesbians, was approved by voters in 1992. (TABOR was Amendment 1 that year.)

This lawsuit has just taken longer, 19 years, because it’s taken that long for TABOR’s ill effects to reach unconstitutional levels, Skaggs said.

“What this is not is an attack on the initiative and referendum process,” he said. “This is about a particular violation of the Constitution that happens to have been enacted through initiative. (The lawsuit is) not any kind of broad assertion that initiatives in other applications would violate the Constitution.”

The attorney said courts routinely are narrow in their rulings on such matters, so federal District Judge William Martinez, who drew the case, isn’t likely to be expansive in whatever decision he ultimately makes.

Martinez is the court’s newest district judge. He was nominated for that post by President Barack Obama in February 2010, but was only sworn in earlier this month.

Mike Saccone, spokesman for Colorado Attorney General John Suthers, a Republican, said his office will handle the case, and doesn’t plan to hire an outside attorney.

“Historically, the Attorney General’s Office has defended constitutional provisions in laws passed by the voters, and we anticipate vigorously defending the Taxpayers’ Bill of Rights against this legal challenge,” he said. “Nobody has more experience defending challenges against constitutional provisions than the Attorney General’s Office. This is not our first rodeo.”


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