Passage of 60, 61, 101 likely to spur court battle

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Opponents of Amendments 60, 61 and Proposition 101 are likely to take their fight to court should what they term as the “ugly three” measures pass at the ballot in November.

Passage of any of the three would inflict deep and lasting wounds on the state’s economy, foes say, triggering a “voter-approved recession.” To defeat the measures, they have assembled a $6 million war chest.

Sam Mamet, the executive director of the Colorado Municipal League, which has been one of the key forces opposing the measures, was coy when asked about post-election challenges.

“Well,” he said, “I’m not going to say yes and I’m not going to say no. I will say that there have been very extensive discussions, but not in a formalized or organized manner.”

Proposition 101 would reduce automobile and telecommunications taxes; Amendment 60 would cancel voter-approved tax-limit overrides; and Amendment 61 would limit municipal borrowing and bar state debt.

Mamet said he believes Proposition 101 is the more easily attacked of the three.

“I don’t care whether it’s an initiated statute or passed by the legislature,” he said. “If it’s unconstitutional, it’s unconstitutional.”

Mamet said opponents are considering attacking the measure on “single subject” grounds, because it deals with both taxes and charges.

The proposed statute may also be trumped by home-rule provisions in the constitution, he said, because it treats local taxation as a matter of statewide concern.

“If a statute can do that, what’s to prevent the legislature from arbitrarily changing the charters of any of the 100 home-rule cities in Colorado?” Mamet asked.

Amendments 60 and 61 also have their weak points, he said.

Amendment 60 permits any elector to vote in any jurisdiction where he or she owns property, regardless of where they reside. This provision may, Mamet said, raise federal issues around the Voting Rights Act, as well as the Constitutional guarantee of equal protection under the law.

Amendment 61, which extensively amends TABOR and prohibits almost all forms of government debt, may impair existing contracts and nullify debt covenants, he said.

Colorado Springs Vice Mayor Larry Small has repeatedly blasted the measures, calling their anonymous authors “anarchists.”

He believes that Amendment 60 can be challenged on the basis that it nullifies hundreds of elections in which voters have exempted local governments from TABOR’s restrictions on property tax revenue growth.

“Overturning prior votes just doesn’t seem to be constitutional,” Small said.

As in most legal matters, there’s an opposing viewpoint on the question.

Lindsay Fischer, who has practiced law in Colorado Springs since 1961, said he doesn’t believe that there are sufficient legal grounds to overturn the measures.

“I looked at them pretty carefully,” Fischer said, “and I came to the conclusion that they were pretty well done.”

That does not necessarily mean, however, that Amendments 60, 61 and Proposition 101 will forever remain on the books.

“I would think that we’ll have years of turmoil, but it’ll be up to the people (to overturn them),” Fischer predicted.

Colorado Springs attorney Bob Gardner, who also represents the city in the state House, also said he expected any challenge to be difficult.

Gardner noted that state constitutional amendments can only be overturned on federal grounds, as was Amendment 2, approved by Colorado voters in 1992.

The measure prohibited any city, town or county in the state from recognizing gays and lesbians as a protected class. The U.S. Supreme court in 1996 ruled the amendment unconstitutional, saying that its “disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.”

But the provisions of the Bill of Rights may not apply in this case.

“I don’t think that the funding of a state is a matter (of federal constitutional interest),” Gardner said. “The people have a right to govern themselves as they wish, no matter how wrong-headed they may be. Once approved, it’s the law.”

Which helps explain why Denver political operative Rick Reiter, who is managing the “No on 60, 61, and 101” campaign, is doing all he can to kill the measures on Nov. 4.

“I’m completely focused on defeating (these measures),” said Reiter. “I’ve convinced the people who gave me $6 million that I can defeat them.”

Clarissa Arellano, political affairs director for the Pikes Peak Association of Realtors, was optimistic.

“Everybody’s working on defeating them at the polls,” she said, “and right now the numbers are very favorable.”

And if the numbers turn out to be wrong, expect the lawyers to be called in.