TABOR challenge won’t go to trial yet after AG filing

The local governments who’ve spent nearly a decade trying to get a federal court to hear why Colorado’s Taxpayer Bill of Rights, or TABOR, is unconstitutional are going to have to wait a little longer.

Colorado Attorney General Phil Weiser’s office filed a brief Wednesday asking the entire 10th U.S. Circuit Court of Appeals to review what three of the judges decided in July: that those bodies had the legal right to sue.

“Until this ruling, the Courts have consistently ruled that federal courts are not the proper place for school boards, special districts and county commissions to resolve disagreements with their parent state over state policy,” Weiser said in a statement.

The lawsuit started in 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 voters in 1992 — violated the Guarantee Clause of the U.S. Constitution, which promised every state a republican form of government. TABOR, they argued, transformed the state into a direct democracy.

In 2017, a federal judge in Denver didn’t rule against the state lawmakers on the merits of their case but instead said they lacked standing — meaning they couldn’t show they would be subject to actual or threatened damages and therefore couldn’t sue. A panel of three appellate judges reversed the decision and ruled this summer that certain entities like cities, counties and school boards have legal standing to sue.

David Skaggs, an attorney for the plaintiffs, was not immediately available for comment.