Justice Kennedy would be seen as swing vote in case
Gov. John Hickenlooper has to decide whether to go to the Supreme Court to defend the Taxpayer’s Bill of Rights, a law that many of his fellow Democrats would like to overturn.
The Denver-based 10th Circuit Court of Appeals ruled Friday that a lawsuit against TABOR can proceed. Attorney General John Suthers had argued that the lawsuit is a political question that the courts have no business deciding.
The state has the option to appeal to the U.S. Supreme Court or to the full 10th Circuit Court of Appeals. A three-judge appeals court panel handed down Friday’s ruling.
“We are currently reviewing the ruling and will then discuss the matter with our client before taking any next steps,” said Suthers’ spokeswoman, Carolyn Tyler.
Colorado voters adopted TABOR in 1992, stripping the power to raise taxes away from the Legislature. The lawsuit claims that TABOR violates the U.S. Constitution’s guarantee to every state of a “republican form of government,” where an elected body of representatives makes the laws.
Legal arguments in the case harkened back to the earliest days of the United States government, with arguments about what the framers of the Constitution would make of Colorado’s law.
No other state has an anti-tax law as strong as Colorado, and the case has attracted national attention. TABOR has been on the ballot in five other states, and 20 state legislatures have considered it, but it has always been rejected, said Nicholas Johnson, vice president of tax policy for the Center on Budget and Policy Priorities in Washington, D.C. The group was happy with Friday’s ruling.
“It’s important because legislatures need this authority. TABOR seeks to emasculate the Legislature,” Johnson said.
Richard Westfall, a leading Republican lawyer in Denver, filed a brief in defense of TABOR and argued that overturning it would open a “Pandora’s box” that could lead to similar challenges around the country.
But Mike Feeley, who argued the case for the plaintiffs, thinks Westfall is overstating the case.
“This case is a narrow rifle shot at one aspect of TABOR, and that is the complete elimination of the legislative prerogative,” Feeley said.
Westfall thinks his side has a good chance at the Supreme Court.
“It’s worth a shot,” Westfall said. “This is a classic liberal-conservative bloc dynamic.”
He thinks Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito would rule in favor of TABOR, while Justice Anthony Kennedy would be the swing vote on the nine-person court.
TABOR requires voter approval of tax increases, and it mandates refunds when government revenue grows faster than population and inflation.
TABOR refunds have not been a factor for more than a decade, but refunds are expected to return – if not this year, then next. Critics blame past refunds for putting Colorado near the bottom among the states in paying for schools and colleges.
“It’s extremely ironic that we’ve been cutting schools because the economy is bad. Now that the economy is improving, we can’t capture those dollars,” said Carol Hedges, executive director of the Colorado Fiscal Institute.
The lawsuit has divided Colorado’s political leaders. A group of local officials and past and present legislators filed it. The full state Legislature has weighed in to support the lawsuit, but several Republican legislators filed a brief to defend TABOR.
It was unclear Monday when the case might finally go to trial.