Colorado Supreme Court Issues 2nd Anti-TABOR Decision in Less than a Month—Showing Why We Need Reform!

• May 24, 2018
• Rob Natelson

I reported on the earlier decision here. That report covered only the text of the case and didn’t mention the court’s ominous footnote #3—a virtual invitation to Colorado governments to hike sales taxes further without a public vote, so long as the sales taxes had been adopted by a previous referendum—even if that referendum was held decades ago and well before TABOR was adopted.*

In my 2016 TABOR book, I documented the state courts’ fundamental lack of impartiality when construing TABOR. I also proposed some reforms. Here are three of them:

• Follow the lead of some other states by creating a trial court with special competence in financial, fiscal, and business matters. It would have jurisdiction over TABOR and other public finance cases, and over major commercial cases as well. It could include judges who are accountants, economists, and finance specialists in addition to lawyers. States, such as Pennsylvania and Delaware, that have such courts find they help attract and retain business and jobs. After all, commercial enterprises want their cases resolved by judges who understand business and finance, not solely by uninformed lawyers.
• Adopt a law or statutory initiative reforming the deceptive and unfair ballot language often used to trick voters into raising or waiving revenue limits. The law would impose truth-in-labeling standards to ensure that revenue-waiving elections are fair.
• Restore the voters’ right to take a “second look.” TABOR gave the voters the right to waive its revenue limits, but provided that the waiver would last no more than four years. This would let voters examine what had happened under the previous waiver, so they could decide whether to re-authorize it. By a mistaken interpretation, the Colorado courts took away voters’ “second look” by making the waivers permanent. A voter initiative could correct that.

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*The court’s footnote 3 reads in part: “In addition, at least some of the tax changes here were already approved by voters. Voters approved initially funding each of the Districts (RTD in 1973 and SCFD in 1988) with a broadly-worded and unqualified sales tax . . . .”

Of course, TABOR was not in effect in 1973 or 1988; voters added TABOR to the state constitution in 1992. So according to the court, elections held half a lifetime ago—and obviously not meeting TABOR ballot-language standards—can authorize TABOR tax hikes!

When ruling against TABOR, the court sometimes paves the way for the next ruling against TABOR—and an earlier case paved the way for footnote #3, which is in turn clearing the way for the next anti-TABOR holding. The earlier case was Mesa County Board of County Commissioners v. Colorado, which abolished the right of local taxpayers to vote on certain tax increases if they previously had approved revenue waivers—even though TABOR’s ballot-language standards for tax hikes are stricter than those for revenue waivers.

Since many local governments have sales taxes approved by pre-TABOR referenda, the court’s invitation to raise rates is clear. See the discussion on pages 44-45 of my TABOR book.

Colorado Supreme Court issues 2nd anti-TABOR decision in less than a month—showing why we need reform!