APPEALS COURT REVIVES CHALLENGE TO TABOR LAW

10th Circuit says plaintiffs can sue over Colorado law’s constitutionality

A sidelined legal challenge to the constitutionality of Colorado’s Taxpayer Bill of Rights is back on again, following a decision by a federal appeals court Monday that found some plaintiffs in the case have a right to sue.

“We have been dealing for eight years with threshold procedural issues,” said David Skaggs, an attorney for the plaintiffs. “Now I hope we will be heading back to district court to finally get to the merits.”

The 10th U.S. Circuit Court of Appeals’ decision reverses a 2017 ruling by a federal judge in Denver who said the plaintiffs lacked what’s called standing — meaning they could show they would be subject to actual or threatened damages — and therefore couldn’t sue.

The lawsuit itself dates to 2011 when Sen. Andy Kerr and House Speaker Dickey Lee Hullinghorst challenged TABOR in federal court.

They argued that giving the final say on all tax increases to voters — as TABOR mandated after its approval by Colorado voters in 1992 — violated the Guarantee Clause of the U.S. Constitution, which is a line in Article IV, Section 4 that promised every state a republican form of government. TABOR, they argued, transformed the state into a direct democracy.

Skaggs said no court has ever decided what that section actually requires, so “in that sense we’re making new law.”

Colorado Rising Action Executive Director Michael Fields said in a statement he’s confident that TABOR ultimately will be upheld.

“People give government its authority, and Coloradans again and again choose having a say on tax increases and the size of government,” Fields said. “Not only has this law benefited our state, but it is enormously popular.”

It’s possible the case could work its way back up to the U.S. Supreme Court when it’s finally tried on the merits. These past eight years have been about whether the case was filed in the correct court and whether certain people and local governments had the right to sue.

Those fights aren’t necessarily over, either.

Colorado Attorney General Phil Weiser could challenge the appeals court’s ruling that local governments have the right to sue. The decision wasn’t unanimous, and Weiser could ask the entire 10th Circuit to consider the case. Or he could stop the appeals process and let the case finally move forward on its merits.

A spokesman for Weiser’s office told The Denver Post “the attorney general will do his job of defending the state’s constitution” but declined to go into specifics.