Lawsuit aims to toss TABOR amendment

The Colorado Statesman

Nearly 19 years after voters adopted the Taxpayers’ Bill of Rights, and one year after a TABOR time-out expired, a group of 34 bipartisan plaintiffs have filed suit in U.S. District Court in Denver to throw out the tax limitation amendment as unconstitutional.

Republicans who support TABOR reacted strongly, saying that if the lawsuit were successful, it would not only put an end to TABOR but to any citizen-initiated ballot initiative.

Not so fast, says one of the lawsuit’s attorneys, who points out that there’s already a good example of a federal court tossing a Colorado initiative, more than a decade ago, and that hasn’t stopped citizen-led initiatives from amending the state Constitution since then.

The lawsuit was filed Monday by Boulder attorney Herb Fenster, with Rep. Andy Kerr, D-Lakewood, as the lead plaintiff. The bipartisan plaintiffs’ group includes former Republican lawmakers Norma Anderson, Bill Kaufman, Marcy Morrison and Bob Briggs; and current Democratic legislators Lois Court, Dickey Lee Hullinghorst, Claire Levy and John Morse. A number of prominent current and former education officials are also in the plaintiffs’ group, including former CU presidents John Buechner and Sandy Bracken, state Board of Education member Elaine Gantz Berman, and five school board members from around the state.

The lawsuit claims TABOR is unconstitutional under a republican form of government, and asks the court to resolve the contest between “direct democracy and representative democracy.” Direct democracy is not allowed under the U.S. Constitution, the lawsuit claims, and “frustration with the work of legislatures… does not justify or permit resorting to direct democracy.”

The passage of TABOR in 1992 has led the state down a “slow, inexorable slide into fiscal dysfunction,” the lawsuit says, and has resulted in a legislature that is unable to raise funds to pay for essential services or to provide for its primary constitutional obligations.

The plaintiffs claim the framers of the Constitution prescribed a republican form of government in Article 4, Section 4 and which extends to the states as a representative democracy. Colorado complied with the U.S. Constitution up until it passed TABOR, the lawsuit said. TABOR should be tossed because it denies the state and its citizens an effective representative democracy and is contrary to a republican form of government as required by both the federal and state constitutions.

The lawsuit also cites a statement by Attorney General John Suthers, in Lobato et al v. State of Colorado et al. Last February, Suthers declared that “any funding required by the Education Clause is constrained by TABOR.” Suthers is now tasked with defending the state against the TABOR lawsuit.

Monday afternoon, Republican state lawmakers were on the defensive; the Senate GOP put up a petition on its website to seek support for TABOR; House Republicans issued a statement decrying the lawsuit and cheering TABOR’s constraints on government spending. House Majority Leader Amy Stephens, R-Monument, said TABOR “has played a pivotal role in keeping government spending habits in check, and has prevented Colorado from having the budget problems that other states like California and New Jersey have faced.” House Republicans would do “everything possible” to protect TABOR, she said.

Speaker of the House Frank McNulty, R-Highlands Ranch, added that while he respects Anderson, he disagrees with the plaintiffs’ premise that TABOR is flawed because it requires voter approval of tax increases. Rep. Bob Gardner, R-Colorado Springs, stated that the lawsuit would have dire consequences on the state’s initiative process if it were to succeed, claiming it would not only overturn TABOR but strike down the entire initiative process.

That claim was echoed by TABOR author Doug Bruce of Colorado Springs, who told The Colorado Statesman that the lawsuit, if successful, would destroy the U.S. Constitution as well as the Constitutions of the 50 states. “It’s absurd on its face,” he said.

The only thing that Article 4, Section 4 of the U.S. Constitution does is say that no state can have a monarchy, Bruce said this week. If TABOR is rendered invalid, all petitions would be declared invalid, he explained. The plaintiffs’ motto is to “destroy the Constitution in order to save it, and they’ll be laughed out of court… It’s an effort to promote anarchy and dictatorship of politicians without restraint.”

Bruce said the Constitution’s framers did not intend for politicians to have unlimited power, pointing to the Bill of Rights, which he said has 26 instances that spell out what politicians cannot do. “This is an attack of the rule of law and peoples’ right to vote [from] authoritarian leftists. All TABOR is, is a limit on government’s economic power. They want to go back to the bad old days” when they could tax the people without limits, he said.

Bruce predicts the case will head to the U.S. Supreme Court. “This isn’t only attacking Colorado. The consequences of a ruling in their favor would invalidate the Constitution in all 50 states, and would also mean no limits on the federal government. We would have anarchy.” Bruce said the lawsuit comes from the same people who “framed him” at the Legislature and who have utter contempt for the people who elected them. “They believe in paternalism and socialism and are the enemies of freedom.”

Former U.S. Congressman David Skaggs is one of the attorneys on the lawsuit, and he told The Statesman that claims that the lawsuit would overturn the initiative process or invalidate the Constitution are in error. He pointed out that the courts overturned Colorado’s Amendment 2 in the 1990s, a constitutional amendment passed by voters and put on the ballot by citizen initiative, and the ruling didn’t affect the initiative process. Courts decide cases as narrowly as possible, Skaggs explained this week. “Courts won’t reach beyond the narrow question presented,” he said. “Yes, we got to this issue by initiative” but the lawsuit seeks only to undo TABOR, not the initiative process.

There isn’t much history of the federal courts dealing with the Article 4, Section 4 question, Skaggs noted, with the last case going back to 1912, in Pacific States Telephone and Telegraph Company v. Oregon. Skaggs said the U.S. Supreme Court dismissed the case on political grounds but that the law has evolved since then and that the Oregon case, which he said was decided badly, no longer applies.

The state has 60 days to respond to the initial filing of the lawsuit, Skaggs said, but it’s more likely the state will ask for more time rather than file a response.

Skaggs believes the chances of the lawsuit’s success are good. “Our assessment of early Constitutional law, including the guarantee clause, is based on James Madison’s writings” in the Federalist Papers, which outlines the argument for a republican form of government.

Colorado’s statehood relies on conditions, imposed by Congress, that reiterated the requirement for a republican form of government, he said; that provision is still in the state Constitution and it cannot be amended in a way that disagrees with the U.S. Constitution.

Any assertion that the lawsuit would destroy the Constitution is a bit “overwrought,” Skaggs said. “Colorado is the only state with a TABOR provision that removes crucial powers from the Legislature. No one can say this can be used to apply anywhere else.”

Daniel Smith, a professor of political science at the University of Florida, doesn’t share Skaggs’ optimism about the lawsuit’s chances. Smith, formerly of the University of Denver’s political science department, has studied TABOR and its effects since its passage. “I don’t think the lawsuit is going far,” he told The Statesman, citing the Oregon case. “Direct democracy continues stronger than ever in the states that permit it.”

Kerr told The Statesman this week he asked to become the lead plaintiff in the lawsuit. “I didn’t want to go into it half-hearted.” In addition, Kerr said he believes current legislators enjoy the greatest amount of standing, since it’s their actions that are constrained by TABOR. “When you believe in something, you stick your neck out all the way.”

As to the complaints by statehouse Republicans, Kerr said that “if the Republicans want to line up behind Doug Bruce and his absolutely crazy ideas, more power to them.”

Kerr said he carries around a copy of the U.S. Constitution, one given to him by Bruce. “It’s pretty clear when you read Article 4, Section 4, that’s the republican form of government. Bruce has been handing out the Constitution but I don’t know if he understands it.”