TABOR’s constitutionality at issue in appeals court

A bipartisan group of current and former lawmakers who are challenging the constitutionality of the Taxpayer’s Bill of Rights is trying to get the courts to decide a political issue, attorneys for the state said last week in reply to briefs filed to the 10th Circuit Court of Appeals.

The case, filed last year in U.S. District Court, challenges the 21-year-old law on grounds that it takes away a fundamental right of the Colorado Legislature, the power to impose and raise taxes.

The lawsuit, Kerr v. Hickenlooper, was kicked to the appellate court to determine if it should go forward after U.S. District Judge William Martinez rejected the main argument of the Colorado Attorney General’s Office that the issue is a political question that, by law, cannot be decided by the courts.

A three-judge panel is expected to hear oral arguments on the case sometime this fall.

In the lawsuit, plaintiffs charge that state lawmakers’ constitutional duties have been usurped by the voter-approved amendment and asked the court to declare it null and void.

Denver lawyer Matthew Douglas, attorney for the Bell Policy Center and the Colorado Fiscal Institute, two left-leaning think tanks, wrote in one of seven amicus briefs filed last month by various groups in support of doing away with the law, saying that TABOR violates the state’s Constitution because it ties the Legislature’s hands.

“Representatives now must make decisions, not based on a substantive dialogue about various policy and budgetary considerations, but based predominantly on what TABOR allows them to do,” Douglas wrote.

“That is, under TABOR, the General Assembly must divorce its budget decisions from any serious consideration of unmet needs that might warrant additional revenue.”

They argue that TABOR has led to woefully inadequate funding of some of the most basic responsibilities of state government, education and transportation. Both are underfunded in the millions, if not billions, of dollars, they say.

Attorneys for the state, however, repeated their assertion that the issue is a political matter and chastised plaintiffs for using the courts to repeal it rather than attempting to use the same means that put TABOR in place in the first place: the ballot box.

Plaintiffs argue that TABOR, which limits how much revenue the state can collect, prevents it from being repealed through a vote of the people because of single-subject rules, which the amendment also put in place.

In his office’s reply to the amicus briefs, Colorado Attorney General John Suthers wrote on Monday that if plaintiffs really want to get rid of TABOR, they could dismantle it a piece at a time through a series of ballot measures.

“Even if their argument were true, it would mean only that plaintiffs and their supporters, and the amicus briefs show that plaintiffs have no shortage of powerful political supporters, might have to use the initiative and referendum process more than once,” Suthers wrote. “This is hardly the sort of predicament that calls for unprecedented federal judicial intervention in state governance.”

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