Today, in its ruling on California’s Proposition 8, the Supreme Court ruled that citizens’ groups do not have standing to defend a law passed by referendum or initiative in federal court, should the state decline to do so. By making this reasoning the basis for its decision, the Court has potentially invited grave implications for Colorado and its Taxpayers Bill of Rights.
Currently, TABOR is the subject of a lawsuit arguing that it violates the US Constitution’s provisions that each state have a republican form of government:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
ARTICLE IV, SECTION 4
The plaintiffs, which include five current Democratic state legislators, argue that, by removing the legislature’s ability to raise taxes without approval by the people, has violated that clause. That case is now in federal court, in front of the 10th Circuit Court of Appeals.
That assertion has been challenged on a number of counts. First, the federal courts have ruled that clause – the “Guarantee Clause” to be non-justiciable, leaving it instead as an issue for the political branches. Second, there is every reason to believe that the founders used the word “republican” to describe even systems of direct democracy.
Currently, with Gov. Hickenlooper named as respondent on behalf of the state, Colorado’s Attorney General, John Suthers, is defending TABOR on behalf of the state.
In the case today regarding Proposition 8, Hollingsworth v. Perry, the State had declined to defend Proposition 8 in court, despite its having been an approved referendum, and being the law of the State of California. The Supreme Court ruled that, in the absence of state defense, private citizens groups cannot do so in its stead. Once the state agrees with the plaintiffs, the court was essentially saying, there is no case.
The implications for Colorado’s TABOR case, and next year’s elections to succeed Suthers as Attorney General, are profound. While any or all of the Republican candidates can be expected to defend TABOR vigorously, the election of a Democrat would open the possibility that the Colorado Department of Law might decline to defend TABOR in federal court.
In the case involving the Defense of Marriage Act, the federal Department of Justice declined to defend DOMA in court, but the US House of Representative hired counsel to do so. If the Democrats were to retain control of both houses of the state legislature, it is highly unlikely that they would act to defend TABOR in this way.
If that were to happen, TABOR might be left without defense, and without any party with standing to conduct a defense. In short, a twenty-year-old state Constitutional Amendment, whose basic provisions have never been overridden on subsequent attempts at repeal or modification, could be killed by default.