Mar 10

Federal Appeals Court rules Colorado Anti-TABOR lawsuit can proceed

Published March 7, 2014 | By CTBC Director

A three-judge panel on the Federal 10th Circuit Court of Appeals ruled Friday that a lawsuit challenging the Taxpayer’s Bill of Rights (TABOR) amendment to the Colorado Constitution may proceed, and remanded the case to federal district court to proceed to trial on the merits.

Byron White Courthouse 10th Circuit Denver

The appeals court ruling addressed only the issue of whether the plaintiffs (33 “educators” and legislators who are “mostly Democrats” with a few token “Republicans”) have legal standing to sue, and whether the lawsuit is barred by the “political question” doctrine, and explicitly did not address the merits (or lack thereof; the case has been widely derided as frivolous and groundless) of the lawsuit:

The merits of the case are not before us. We express no view on the substantive issues and intend none. We consider solely standing and the political question doctrine.  (Ruling at 6)

Establishing standing to sue requires, first and foremost, that the plaintiff “has suffered a concrete and particular injury in fact that is either actual or imminent” – which the court affirmed for the plaintiffs who are current or former legislators, since

Legislator-plaintiffs contend they have been injured because they are denied the authority to legislate with respect to tax and spending increases. (Ruling at 21)

The more significant element of the appeals court ruling addresses the “political question” doctrine – the issue of whether the claims brought by the lawsuit may properly be addressed by the courts at all.

 As a threshold matter, we must decide if the political question doctrine categorically precludesGuarantee Clause challenges against state constitutional amendments adopted by popular vote. (Ruling at 29)

The appeals court concluded that guiding U.S. Supreme Court precedent Continue reading

Mar 09

Appeals Court Allows Suit Against TABOR

March 7, 2014 3:35 PM

(credit: CBS)

(credit: CBS)

DENVER (AP) – State lawmakers opposed to Colorado’s landmark Taxpayer Bill of Rights won another legal victory Friday as the 10th U.S. Circuit Court of Appeals ruled their lawsuit challenging the law can proceed.

The tax limitation law passed by voters in 1992, known as TABOR, requires all tax increases to be approved by voters. The lawmakers argue that deprives them of the right to have a say in tax policy, denying Colorado a republican form of government promised by the U.S. Constitution.

A three-judge panel from the appellate court concluded that the lawmakers have proven they have been injured by the law and the lawsuit should proceed. They didn’t rule on the merits of the case, which will continue in federal court unless Attorney General John Suthers appeals.

“We consider solely standing and the political question doctrine: whether these plaintiffs have suffered a particularized injury not widely shared by the general populace that entitles them to have their case heard by the federal courts, and whether the question presented is purely political in nature and should not be reached by the courts,” the ruling said.

State attorneys argued that the mostly Democratic lawmakers challenging the law didn’t have the right to sue because they were not harmed by the law. Continue reading

Feb 07

TABOR Foundation files appeal in Colorado Bridge Enterprise lawsuit

Guest Columns



There have been violations of basic common sense and principles of good government,” said TABOR Foundation Chairman Penn Pfiffner. “The concept and construct of this dishonest and devious scheme must not stand.”

A Colorado organization has filed an appeal to overturn a Denver District Court finding about the Taxpayer’s Bill of Rights (TABOR). The TABOR Foundation, whose mission includes protecting the constitutional amendment that was initiated by the people, believes the trial court erred in finding that the State of Colorado’s Bridge Enterprise conforms to TABOR.

In 2010, the legislature created the Colorado Bridge Enterprise to repair and maintain bridges. The CBE was called an “enterprise” so it could issue debt without a vote of the people, as is otherwise required by TABOR. The CBE already has issued $300 million in debt and plans more. An enterprise is a government-owned, self-supporting business, which is exempt from TABOR restrictions. The legislature also authorized the CBE to impose a new charge on vehicle registrations. The charge, known as the bridge safety surcharge, was designated for repair and maintenance of state owned bridges. But the CBE had a problem — because the charge is not a fee for service, it looked like a tax that would require a vote of the people. Disinclined to allow Colorado’s Constitution to stand in the way, the CBE called it a fee and hoped the label alone would be enough to avoid a vote of the people.

In May 2012, the TABOR Foundation sued to reverse the tax and stop the issuance of more debt (the CBE plans to sell up to $1 billion in bond debt). The arguments presented in the lawsuit fall into two categories: that the fee is actually a tax, and that the CBE is not a qualified enterprise and cannot issue debt without a vote of the citizens of Colorado.

If the bridge surcharge survives the legal challenge, the courts will have established a method by which government can fund most anything by creating enterprises, assessing fees and issuing debt. They will have found a method to strip Coloradans of their constitutionally protected rights under TABOR. Continue reading

Dec 07

Tweaking TABOR to free up funds for rebuilding after emergencies

By Alicia Caldwell

The Denver Post
The way Sam Mamet sees it, the Taxpayer’s Bill of Rights is its own disaster for communities trying to rebuild after an emergency.

The executive director of the Colorado Municipal League said TABOR imposes unreasonable restrictions on local governments as they try to replace important government infrastructure, such as water and sewage treatment plants.

Mamet, who discussed the issue on a segment of The Roundup, a public affairs discussion conducted by members of the Denver Post editorial board, said some tweaks to TABOR are needed.

He emphasized that the proposal would not involve a major rewrite of the constitutional amendment, but rather a few targeted changes, such as defining an “emergency,” and making clear that grants received by communities trying to rebuild would not count toward their TABOR-defined spending limits.

Mamet called the changes “surgical.”

Read more: Tweaking TABOR to free up funds for rebuilding after emergencies – The Denver Post 
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Dec 01

Should TABOR be dismantled? No

Voters have right to decide state, local taxes

By John Suthers

Two supporters of Amendment 66 look at projected figures showing the initiative
Two supporters of Amendment 66 look at projected figures showing the initiative’s defeat and the victory of Proposition AA (a tax on recreational marijuana sales). (Ed Andrieski, The Associated Press)

Former Congressman David Skaggs and former state Sen. Mike Feeley have filed a lawsuit contending that it’s a violation of your federal constitutional rights to allow you to vote on whether or not to raise your state and local taxes. Because taxpayers and not legislators have the final say on tax increases, they think we have “too much democracy” in Colorado.

I’m confident the courts will ultimately conclude otherwise.

Reasonable people can and do disagree about the wisdom of the Taxpayer’s Bill of Rights (TABOR). And many Coloradans, including myself, believe it’s far too easy to amend our state constitution. But there’s nothing unconstitutional about allowing voters to decide important issues, including whether to raise their taxes.

The plaintiffs claim that letting citizens decide whether taxes are raised violates the “Guarantee Clause” of the U.S. Constitution. In the Guarantee Clause, the United States guarantees each state will have a “republican form of government.” It was intended by our founders to suppress any lingering monarchical tendencies in the original states. They wanted to ensure that Virginians couldn’t make George Washington or Thomas Jefferson a king of their commonwealth, even if they wanted to. The constitutional provision was intended to preserve power to the people, not take it from them. Continue reading

Dec 01

Should TABOR be dismantled? Yes

Take back the power to set state fiscal policy

By David Skaggs and Mike Feeley

Two supporters of Amendment 66 look at projected figures showing the initiative
Two supporters of Amendment 66 look at projected figures showing the initiative’s defeat and the victory of Proposition AA (a tax on recreational marijuana sales). (Ed Andrieski, The Associated Press)

When we were new members of the Colorado legislature in the 1980s and ’90s, we hoped colleagues would see the merit in bills we introduced and, of course, approve them. It didn’t take long to realize that fellow legislators would be more skeptical about our ideas — as we would be of theirs.

Our proposals — often drawn from conversations with constituents — were subject to scrutiny in committee hearings, floor debates and endless conversations with all manner of interested parties.

That challenging and sometimes tedious process demonstrated then, as it does now, the wisdom of the Founders in drafting a constitution that requires every state to have a “republican form of government,” a representative democracy.

The Founders recognized that the public interest is best served when complex and controversial issues receive careful review by representatives who have the time, commitment and expertise to hold hearings, take testimony, examine evidence, debate their differences and work out necessary compromises. That is the way a diverse society with often conflicting interests can resolve difficult issues responsibly and respectfully. Continue reading

Nov 28

Colorado voters were saved by TABOR

Earlier this month, you were saved by the Taxpayer’s Bill of Rights.

Powerful political interests put Amendment 66, a yearly billion-dollar tax increase, on the Nov. 5 ballot and promoted it as a school-funding measure. Coloradans didn’t buy it. Despite millions spent promoting it, 66 was soundly defeated at the ballot box by almost 2-to-1. News media, pundits and pollsters reported Amendment 66’s defeat, but many lost sight of the only reason Coloradans got to vote on the measure: TABOR.

Coloradans had a powerful voice in this important decision for one reason only: the Taxpayer’s Bill of Rights. TABOR grants Colorado citizens the right to vote on any tax increase. “Want more money, Mr. Politician? OK, but you must ask us first!” An overwhelming majority of citizens determined that Amendment 66 did not offer the right trade-off between family budgets and government burden. The majority of Colorado voters also proved skeptical that just one more K-12 funding increase would solve the problem this time.

TABOR mandates that, when any Colorado government proposes new taxes or debt, that government must first ask voters’ approval. It is one more check in our American system of checks and balances. Continue reading

Oct 25

TABOR group sues 2 special districts — RTD, SCFD — over new tax

By Monte Whaley

The Denver Post

The nonprofit TABOR Foundation is suing to stop the Regional Transportation District and the Scientific and Cultural Facilities District from collecting sales tax on food, beverages, cigarettes, advertising materials and food containers.

The foundation filed a request for preliminary injunction Thursday in Jefferson County District Court, asking that the districts be blocked from collecting the tax starting Jan. 1, as allowed by a new state law.

House Bill 1272 lifted exemptions on items the districts could tax. Previously, sales of food, beverages, cigarettes, advertising materials and food containers were off limits to RTD and SCFD.

The tax is expected to net $2.7 million for RTD and $270,000 for SCFD next year, according to the complaint.

The TABOR Foundation — formed to protect and enforce the Taxpayer’s Bill of Rights, a state constitutional amendment that requires a vote of the people to increase taxes — says the legislature violated TABOR by enacting a new tax without voter approval.

“The legislature seems to have forgotten there is a part of the constitution called TABOR, and we are hoping to remind them that the Taxpayer Bill of Rights does exist,” said Jim Manley, of the Mountain States Legal Foundation, which filed the complaint on behalf of the foundation.

Manley said voters should get to decide whether RTD and SCFD can expand their tax base. “All we are asking is for the voters to weigh in on this.”

Supporters say the tax is not new, but merely an expansion of the till the districts are allowed to dip into. It also simplifies the tax-collection process and makes the accounting more accurate, RTD said.

“We see it as simply aligning the tax base of the special district with the state tax base,” SCFD executive director Peg Long said.

Read more: TABOR group sues 2 special districts — RTD, SCFD — over new tax – The Denver Post 
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