TABOR Directors and friends,
We will not see a review by (appeal to) the entire US 10th Circuit Court of Appeals (en banc) in the federal case to overturn the Taxpayer’s Bill of Rights.
The next logical step is for the Defendant to ask the US Supreme Court to hear an appeal that the case should not proceed to the trial phase because the substance of the case does not fall within the judicial branch to decide. The Solicitor General’s office this morning confirmed in a telephone call with me that such a filing is contemplated.
Luke Wake and his team at NFIB are ready to help out once again. See his message below.
The dissents from the 10th Circuit Court are telling and a very important development in proceeding to the next step. They follow the very brief ruling in the attachment.
Our TABOR Foundation is committed to seeing this through as far as we need to, and Board approval is already in place. I’ll keep you informed as I learn more.
I’ve been in communication with each of you about the Kerr v. Hickenlooper case, wherein a handful of ideologically motivated litigants are challenging the constitutionality of the Colorado Taxpayer Bill of Rights (TABOR). TABOR was an initiative approved by Colorado voters in the early 1990s, which gives the citizens a right to vote on new taxes. NFIB was very supportive of the reform then and the NFIB Legal Center is now leading its defense (along with TABOR Foundation).
> As you recall, I previously explained that the Tenth Circuit federal court of appeal recently decided to allow a “Guarantee Clause” challenge to proceed against TABOR. And I’ve said before, this would open Pandora’s box for challenges to any constitutional amendment restraining the legislature’s tax and spend powers, or potentially any amendment limiting the state’s police powers. We were hopeful that the Tenth Circuit would review the decision because it is binding on all Tenth Circuit states, and because it provides persuasive authority that could be invoked by litigants challenging taxpayer protections in other states as well. Unfortunately the Tenth Circuit denied Governor Hickenlooper’s petition for en banc review; however, there were three very strong dissenting opinions (see attached). These dissents largely echoed the concerns we raised in our original amicus brief.
> Given the force of these three dissents, I should think the State is in as good a position as possible in pursuing a petition for certiorari in the U.S. Supreme Court. When considering whether to take a case the Supreme Court asks two questions: (1) Does this decision create a conflict between federal circuits, or does it expressly conflict with a previous Supreme Court decision? (2) Does the case raise an issue of national concern? Both can be answered in the affirmative.
> Early in the 20th Century, the Supreme Court decided that a Guarantee Clause challenge to Oregon’s initiative process was precluded by the political questions doctrine. The Court has since repeatedly affirmed that Guarantee Clause cases are non-justiciable. In a 1992 opinion Justice Ginsberg held out the possibility that there may be some conceivable Guarantee Clause case that might be justiciable [we don't necessarily disagree that there might be some case in the future], but no Court of Appeal has found one to date–except the Tenth Circuit in this case.
> The Tenth Circuit held that a Guarantee Clause challenge should be allowed to move forward despite the fact that the judges were not presently aware of any standard or principled rule for how the case might possibly be decided. This is highly problematic because it encourages litigation without principled rules. And the case certainly raises an issue of national concern because–as discussed above–it invites challenges to potentially any state constitutional amendment, especially voter initiatives–and most especially taxpayer protections.
> We are now planning to file an amicus brief encouraging the Supreme Court to take the case. Each of you has indicated that your organization has tentatively agreed to join with us in this filing. Please let me know if you have any questions. My understanding is that the State will be filing its petition for certiorari sooner than later. So we may be filing as early as September. I will keep you all in the loop.
> Very best,