Colorado court watchers are waiting with baited breath for the nation’s highest court to say whether it will consider a case challenging the Taxpayer Bill of Rights.

The U.S. Supreme Court isn’t considering the merits of a 2011 lawsuit, brought by a group of current and former elected officials, including state Sen. Andy Kerr, D-Lakewood, and House Speaker Dickey Lee Hullinghorst, D-Boulder. Instead, the court is expected to announce whether justices are granting certiorari and will hear the case or whether they’re sending it back to a lower court.

The lawsuit was filed in U.S. District Court in May 2011. Attorneys for the State of Colorado filed a motion to dismiss at that time, claiming the plaintiffs lack standing to file the lawsuit and arguing that the case itself is a political question, which federal courts typically avoid.

The District Court denied the motion and the 10th Circuit Court of Appeals then denied a request by the state for a rehearing, leaving the Supreme Court to decide.

“We’re not yet at the point where (the Supreme Court) could be asked the merits of the case,” said David Skaggs, an attorney for the group that filed the suit.

The court considered the Petition for Writ of Certiorari in conference on Jan. 9 but has not yet issued a decision on it, a delay Skaggs called unusual.

Typically, when the court considers what’s commonly known as a Cert Petition in conference, it announces whether the petition has been granted or denied within a week or two.

“I think it means they’re taking [the issues] seriously,” said David Kopel, an attorney with the Independence Institute, who wrote an amicus brief supporting the state’s arguments in the case.

If the court grants certiorari, then the case will be set for oral arguments during next year’s session, which begins on Oct. 5. If certiorari is denied, the case will return to U.S. District Court in Denver for a hearing on the merits of the lawsuit.

A decision will be issued before the end of this year’s Supreme Court session — next week or the week after, at the latest.

“We’re within a fortnight of a decision, we think,” Skaggs said.

One theory for the court’s delay is that justices might be waiting to first decide Arizona State Legislature v. Arizona Redistricting Commission.

Supreme Court experts speculate the Arizona case has issues parallel to the TABOR case, Skaggs said, including whether the Legislature has standing to file the lawsuit.

The Colorado lawsuit argues that TABOR violates the Guarantee Clause of the U.S. Constitution, which provides that each state will have a “Republican Form of Government.”

“No federal court has ever decided what a ‘republican form of government’ actually entails,” Skaggs noted.

However, the Federalist Papers, written to support ratification of the Constitution in 1787 and 1788, maintained that a republican form of government is a representative government, not a direct democracy.

But Kopel said that strict reliance on that definition misses the point.

“Voter initiatives and referendums are consistent with what the founders considered a republic,” he said. “All legislative powers belong to the people in the first place. The legislature is the agent of the people, and the people can legislate directly, if they choose.”

On the other hand, the lawsuit argues that TABOR takes away the power of taxation from the Legislature, leaving the state without a fully republican form of government.

“It’s not a provision of the Constitution that has been used a lot,” Skaggs admitted.

The state, in its argument for certiorari, claim the plaintiffs’ chief argument is that TABOR is unique with no impact outside the state.

“The People of Colorado have chosen to maintain a direct voice in the state’s tax policy and overall level of appropriations. Plaintiffs here challenge that choice and ask the federal courts to undo it,” wrote attorneys for the state. They added, “Whether the federal judiciary can interfere in this sort of intrastate governance dispute is of fundamental importance.”

“There are various theories of the case,” Kopel said, noting the Institute doesn’t agree with the state on every aspect of the case. Mainly, he said, his organization hasn’t taken a position on who has standing to file such a lawsuit.

The Supreme Court typically announces decisions on Mondays but the court has said to expect rulings on Thursday and Friday this week as the session nears its end.

— rachel@coloradostatesman.com