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. Continue reading →

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 →