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TABOR lawsuit gets round in court, but decision unlikely for months

September 23, 2013 Updated: September 23, 2013 at 8:28 pm

DENVER - Current and former elected officials wishing to undo the Taxpayer's Bill of Rights, better known as TABOR, argued on Monday in federal appeals court that they have standing and the court has the authority to hear their complaint.

A total of 33 plaintiffs brought the suit against Gov. John Hickenlooper in May 2011, challenging the constitutionality of TABOR, a law limiting tax increases unless Colorado voters approve.

A few months later, Attorney General John Suthers sought to have the case dismissed on the grounds that none of the plaintiffs had standing and the courts didn't have the proper authority to decide the issues.

In August 2012, a U.S. District Court judge ruled against Suthers, allowing the lawsuit to move forward.

Suthers appealed that decision, bringing the matter to the U.S. Tenth Circuit Court of Appeals in Denver on Monday for arguments before a three-judge panel.

"This case raises interesting issues," said state Solicitor General Daniel Domenico. "But not any that can be resolved by the federal courts."

Domenico argued that the issues at hand were beyond the scope of the courts.

A ruling on the procedural matter is expected to take months.

Voters in 1992 approved an amendment to the Colorado Constitution prohibiting government from raising taxes without a vote of the people. TABOR also requires that surplus money be returned to taxpayers when revenue grows faster than the rate of inflation and population growth. TABOR was placed on the ballot through the initiative process.

"We are not challenging the initiative process, but how it has restructured the government of Colorado," Attorney David Skaggs, a former congressman, told judges Monday. "This case is about restoring Colorado's birthright, the state legislator's fountainhead of representative democracy. We must not let that fountainhead be turned into a figurehead. I pray the court will let us go forward with that cause."

TABOR was written and championed by former state Rep. Douglas Bruce, R-Colorado Springs, who cautioned success in this case by the opponents could have far reaching consequences across the nation.

"It takes away the right to petition on all subjects in all states," Bruce said. "That's so preposterous. They are so obsessed with their hatred of TABOR that they don't care about the ramifications."

Bruce said TABOR is well within the rights of the people to limit their government through initative petition and constitutional amendments.

"That's the ramification of saying that the citizens cannot put limits on government," Bruce said. "Freedom is by definition limits on government."

TABOR has become a word of scorn among many elected officials at the school, local and state levels where officials feel their hands are tied by the law and leaves them unable to raise needed revenue.

Former Republican Sen. Norma Anderson, one of the plaintiffs, said TABOR prevents lawmakers from reacting to the state's immediate needs, the Associated Press reported. If the state needs to raise more money to pay for repairs from flooding, she said it's too late to ask voters in November to approve a tax hike.

"Our form of government is still the best in the world, and it's been taken away from us in Colorado," Anderson said after the hearing.

Former Senate President John Morse, D-Colorado Springs, who lost his seat a few weeks ago in a recall election, is one of the plaintiffs in the case and listened to the arguments in Denver.

Voters approved Referendum C in 2005, which suspended the return of any surplus to voters from 2006 to 2010.

Morse said before TABOR it took the approval of 18 senators, 33 representatives and one governor to pass a bill, but after TABOR that changed to 24-40 and 2.5 million -a two-thirds vote in both the House and Senate and then approval of a majority of voters.

"That's direct democracy and that's where it's changed," Morse said. "That's where in my view they have removed the representative republican form of government from Colorado, and that's a violation of the U.S. Constitution that needs to be rectified."


Contact Megan Schrader


Twitter: @CapitolSchrader

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