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County attorney wants to help oppose TABOR lawsuit

May 25, 2011

El Paso County Attorney Bill Louis wants to join the fight against a lawsuit that challenges the constitutionality of Colorado’s Taxpayer’s Bill of Rights, arguing TABOR is good policy and the lawsuit could erode state power.

Louis said Wednesday that he will ask county commissioners at Thursday’s meeting to authorize his office to “intervene” in the case, which was filed Monday in U.S. District Court.

Louis said he is investigating whether the county could be either added as a defendant along with the state, or as “a friend of the court,” a strategy used when public issues are argued. The latter would enable the county to seek permission from the court to file a brief pertaining to the case or participate in the argument.

The Colorado Office of the Attorney General will defend TABOR in the suit. Deputy Attorney General for Legal Policy Geoff Blue said the office “will evaluate any requests to intervene, on either side.”

“This is the first time I’ve heard of anybody expressing wanting to intervene, but I’m not surprised to hear people will want to,” Blue said. 

The lawsuit argues that TABOR limits the power of Colorado’s General Assembly and therefore violates the U.S. Constitution’s guarantee that states have a republic form of government, in which elected officials have authority to govern.

Because local anti-tax activist Douglas Bruce authored TABOR, Colorado Springs is considered the birthplace of the amendment, which voters across the state passed in 1992 as a means of controlling government spending.

TABOR requires voter approval for tax increases and restricts government revenue. 

While local officials have at times complained about parts of TABOR, historically, they’ve viewed the law as “good public policy,” Louis said. “So there’s a desire to defend it.”

But he said he believes the lawsuit has implications beyond TABOR and the potential to end up before the U.S. Supreme Court.

“An expansive reading of the ‘guarantee of republic government’ clause could potentially lead to greater federal control over state and local government, so it’s really about the separation of powers, states’ rights and the sovereignty of local governments,” Louis said. “There’s no reason for the federal courts to be involved in state law matters — that’s just bad policy.”

Though the suit was filed in federal court, Colorado Attorney General John Suthers will argue the case because it targets a state law.

Unlike cities, counties are considered an arm of state government, and Louis said the lawsuit is too general to determine what the impact to the county would be. Joining the case would allow the county to find out, he said.

“I think we have a responsibility to not only intervene, but rally other counties to join us,” said Commissioner Darryl Glenn.

TABOR helps keep government spending in check, which Commission Chairwoman Amy Lathen said is necessary, given what she called the “crushing federal debt that rolls at a rate like it’s a slot machine gone out of control.”

“While there are some issues of TABOR we could look at, like the ratcheting-down effect, throwing it out entirely is an astounding suggestion,” she said.

Commissioner Sallie Clark said she thinks it’s important for El Paso County to “take a stand” because “the voters have spoken.”

Three local politicians are among the 34 plaintiffs: Senate Majority Leader John Morse, D-Colorado Springs; former state Rep. Michael Merrifield, also a Democrat; and Republican Marcy Morrison, a former state legislator, former director of the state’s Division of Insurance and former Manitou Springs mayor.

Thursday's meeting starts at 9 a.m. at Pikes Peak Regional Develoment Center, 2880 International Circle.

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