Federal court hears TABOR appeal points

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Doug Bruce

Doug Bruce

DENVER — A lawsuit filed two years ago against the state by a bipartisan coalition of elected officials, educators, former elected officials and others challenging the Taxpayer’s Bill of Rights (TABOR) had its day in federal appeals court Monday.

The coalition of plaintiffs claims TABOR violates the principles of representative government stated in the U.S. Constitution. They believe TABOR, an amendment to the state constitution passed by voters in 1992, strips the Legislature of its powers to tax and, therefore, violates the U.S. Constitution’s directive that states have a “republican form of government.”

Plaintiffs want TABOR nullified. TABOR is also known as the “Bruce Amendment” for its author, Colorado Springs activist Douglas Bruce.

Background

Approved by voters on Nov. 3, 1992, TABOR became effective Jan. 14, 1993. It removed from the state Legislature and other political subdivisions — such as county commissions, school districts and municipalities’ councils — the power to tax without a vote of the public. It said the power to tax rests solely in the hands of the voters and should be used only after the voters approve an increase in taxes.

TABOR also capped spending to an annual adjustment of “inflation” plus the “percentage change in state population.” It prohibits any new taxes that are progressive.

Since the law became regarded as an obstacle for economic recovery, many counties, school districts and municipalities have “de-Bruced,” or lifted the restrictions of the amendment for revenues and spending, by votes of the electorates.

The complaint

In the original complaint, filed in May 2011, the plaintiffs said TABOR “removes entirely from the Colorado General Assembly any authority to change state law concerning taxation to replace or increase revenue… Moreover, the interaction of the provisions of TABOR may actually force existing taxes to be decreased without any action of the General Assembly.”

The plaintiffs also allege the constitutional requirement to educate children is also “constrained” by TABOR.

TABOR renders the Colorado Legislature “unable to fulfill its obligations under a Republican Form of Government,” violating Article IV, Section 4 of the U.S. Constitution, the complaint said.

The 1875 Enabling Act set forth the requirements for the Colorado territory to become a state. The original complaint said the Enabling Act required the state have a “Republican Form of Government,” and that involves a Legislature. The TABOR amendment “made the General Assembly ineffective by removing … the power to tax. In so doing, the TABOR amendment violates the Enabling Act,” the complaint read.

The complaint also claimed that TABOR is in conflict with the “Guarantee Clause” of the U.S. Constitution, which guarantees a “republican form” of government.

In the brief to the Court of Appeals the defense countered that the plaintiffs do not have legal standing to bring the case.

In a motion to dismiss, the defendant — the state — said, “From the very first paragraph of their complaint, plaintiffs make clear that this case is an effort to have the courts remove what they see as an obstacle to their policy agenda: direct citizen participation in lawmaking.”

Monday in court

Before a standing-room-only field of attorneys and curious onlookers, attorneys argued an “interlocutory appeal” or intermediate appeal to a decision on a motion to dismiss.

The action took place in the Tenth Circuit Court of Appeals, the intermediate court between district courts and the U.S. Supreme Court.

They appeared before three judges: Chief Judge Mary Beck Briscoe, Senior Judge Stephanie K. Seymour and Judge Carlos F. Lucero.

Former U.S. Rep. David Skaggs (a Democrat who served from 1987 to 1999) argued for the plaintiffs, and Colorado Solicitor General Daniel Domenico argued on behalf of the defendants.

Two main questions are being asked: Should federal courts define when the state has lost its “republican form;” and should federal courts reverse the “Guarantee Clause,” Domenico said.

“The answer to both of these questions is no,” Domenico said. Also, he added, “We absolutely don’t concede,” that the plaintiffs have standing before the federal court.

Briscoe asked Domenico if the law “handcuffs” the Legislature, to which he answered, “I don’t think so, your honor.

“Just because it’s a little bit harder doesn’t make us unrepublican,” Domenico said of increasing taxes.

To back up his claims, Domenico cited another case, which states that taxes can be increased in two ways: The Legislature can pass a bill to increase taxes and the bill would have to be approved by the voters; or the voters can bring forth an initiative to increase taxes, and that, too, would require approval by the voters.

Just because it’s a little bit harder doesn’t make us unrepublican.”
– Daniel Domenico, Colorado Solicitor General

In both cases, there would be a vote, he said, adding that “it’s not true that the Legislature has no role in it.”

“I’m sure you’d admit the Legislature has a diminished role,” Briscoe said.

The Legislature is subject to a “different check” than before TABOR, Domenico answered.

The original Colorado Constitution needed presidential and Congressional approval, Skaggs said.

“It is clear we have standing under the Enabling Act,” Skaggs said. The Legislature’s “central role” is to tax, he added, and TABOR deprives the Legislature of that central role.

Skaggs also argued educators also have standing and that TABOR stands in the way of “adequately” funding schools.

The judges are expected to render a decision on the “interlocutory appeal,” or this segment of the case, within the next two months.