Tongues wagging over TABOR as federal suit moves ahead

JOHN SCHROYER Updated: August 4, 2012 at 12:00 am • Published: August 4, 2012

Both political sides in El Paso County got more ammunition last week when a Denver federal judge cleared the way for a lawsuit seeking to kill the Taxpayer’s Bill of Rights from the state Constitution.

The suit, which the Colorado attorney general’s office had attempted to get thrown out, is now one more step closer to a trial. U.S. District Judge William Martinez tossed Attorney General John Suthers’ complaints that the lawsuit was too trivial and political to move forward, and said the suit was legitimate enough to be heard in open court.

TABOR prohibits government from raising taxes without a vote of the people. The plaintiffs contend that in doing so, TABOR undercuts the ability of the government to actually govern.
They also argue that the state is required by the federal Constitution to have a republican form of government, not a direct democracy.

“Let’s have a conversation about this,” said former state insurance commissioner Marcy Morrison, one of the few Republican plaintiffs in the case. “Why do you elect people and then not give them the responsibility to do the right thing?”

Morrison is also a former school board member, state legislator, El Paso County Commissioner, and mayor of Manitou Springs. She said TABOR has hampered the state and local governments to the point of incapacitation. Too many government programs have been short-changed because of TABOR, Morrison said.

State Rep. Mark Waller, R-Colorado Springs, said the lawsuit is dangerous, because if it succeeds, it would open the door to even more legal fights. Waller pointed to Amendment 23, a constitutional provision that requires the state increase education spending each year.

“That impairs the legislature’s ability to adequately spend tax revenue that comes in to the state,” Waller said.

TABOR takes up a mere five pages out of the state’s 196-page Constitution, but it has long been a political rallying cry, because taxes are its focal point. That was one of the attorney general’s arguments — that the case was a political argument, and not a legal one.
Martinez, however, disagreed.

“As a foundational matter, the political question doctrine’s applicability … is lessened or eradicated when the action challenges an act of state,” Martinez wrote.

Colorado Springs City Councilman Bernie Herpin said he wasn’t completely for or against the lawsuit, but said TABOR needs “tweaking.”

“We have our own TABOR, so there are two we need to deal with,” said Herpin, referring to city ordinances.

The state’s version, he said, makes it difficult for government to recover from economic downturns because of how it limits spending. But Herpin emphasized that he supports the part of TABOR that prohibits governments from raising taxes without voter approval.

There are a few more logistical steps to take, but the trial will likely begin early next year, said former congressman and attorney David Skaggs, who is representing the plaintiffs.
Ironically, the lead attorney for the AG’s office is Bernie Buescher, a former legislator from Grand Junction who is also a Democrat.

Also on the plaintiff’s list is state Senate Majority Leader John Morse, D-Colorado Springs.


Contact John Schroyer: 476-4825
Twitter @Johnschroyer
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