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Lawsuit challenges constitutionality of Colorado's TABOR amendment

May 23, 2011

Three local politicos who have served in the state Legislature have signed on as plaintiffs in a bipartisan lawsuit that is seeking to overturn the Taxpayers Bill of Rights.

The suit, filed Monday in federal court, claims that TABOR is unconstitutional because it limits the General Assembly’s authority.

Senate Majority Leader John Morse, D-Colorado Springs, is the only one of the three currently in the Legislature. Former state Rep. Michael Merrifield, another Springs Democrat, left last year. The third, Marcy Morrison, a longtime El Paso County Republican, is a former mayor of Manitou Springs, state legislator and director of the state Division of Insurance.

All three insisted, however, that the suit isn’t just about TABOR and whether the Legislature should be able to raise taxes without a vote of the people. They say the true heart of the suit is whether government should be run as a republic or by direct democracy.

And they agree it should be the former.

“The argument that it’s unconstitutional is pretty clear,” said Morse. “The Democratic form doesn’t cure the ills of the majority always being able to impose its will on the minority.”

Even if taxes are not the underpinning of the suit, they are certainly a major factor.
The second sentence of the suit names TABOR, and the third paragraph labels it a legislative “straightjacket.” The suit later reads, “When the power to tax is denied, the Legislature cannot function effectively to fulfill its obligations.”

Douglas Bruce, who wrote TABOR and orchestrated its passage in 1992, did not return calls for comment. But other conservatives immediately blasted the suit as a shallow attempt to dismantle TABOR.

Joint Budget Committee member Sen. Kent Lambert, R-Colorado Springs, said, “Their agenda is clear—they want to increase taxes with absolutely no checks and balances from the people of the state.”

He said it’s been brought by the “same group of people who attack freedom of religion, the second amendment, and other constitutional rights.”

Merrifield called those comments “typical Kent Lambert crap.”

He said state legislators need the freedom to at least discuss the option of raising taxes, whether permanently or temporarily, to keep the state in the black.

Rep. Mark Waller, R-Colorado Springs, criticized the suit and said the argument was too broad. If TABOR is unconstitutional because it exceeds the state’s regulatory power, then the same standard would apply to other citizen-initiated constitutional changes, he said.

The suit isn’t trying to write a standard, said David Skaggs, one of the lead attorneys in the case. Rather, it’s saying that TABOR exceeds the state’s power. Skaggs, a former congressman and head of the state Department of Higher Education, also argued that TABOR is the major factor in the state’s limited capacity to change its financial structure.

“Only TABOR completely removes a key power and responsibility from the Colorado Legislature,” said Skaggs.

He pointed out that the plaintiffs advocating what founding father James Madison promoted — a republic in which the government makes the decisions.

“This is about getting back to basics. We’re being ‘originalists,’” he quipped.

House Majority Leader Amy Stephens, R-Monument, said in a statement that that isn’t the point.

“The Taxpayer Bill of Rights has played a pivotal role in keeping government spending habits in check, and has prevented Colorado from having the budget problems that other states like California and New Jersey have faced,” she said.

Though the suit was filed in federal court, the defense will be argued by Colorado Attorney John Suthers because the suit targets a state law. Suthers’ spokesman Mike Saccone said they would “vigorously defend the law.”

There are 34 plaintiffs, and though most of them are Democrats, a good number are also Republicans. Morrison is just one of several prominent GOP officials who have signed on in support, including former state Senate Majority Leader Norma Anderson, R-Lakewood.

Contact the writer 476-4825.



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