Lawsuit challenges constitutionality of Colorado's TABOR amendment - The Denver Post

Lawsuit challenges constitutionality of Colorado's TABOR amendment
By Tim Hoover
The Denver Post
Posted: 05/23/2011 01:00:00 AM MDT
Updated: 05/23/2011 08:20:50 AM MDT

In a case that could affect citizen initiatives nationally, a bipartisan group of current and former state legislators and local officials is expected to file a lawsuit today in federal court challenging the constitutionality of Colorado's Taxpayer's Bill of Rights.

The suit alleges that TABOR, which prohibits the legislature from raising taxes without a vote of the people, limits the General Assembly's power in violation of the U.S. Constitution guarantee that states have a "republican" government, in which the authority to govern is given to elected officials.

The plaintiffs argue in their legal petition that TABOR, which voters added to the state constitution in 1992, has caused "a slow, inexorable slide into fiscal dysfunction" in Colorado.

Attorney General John Suthers, a Republican whose office would be charged with defending TABOR, was out of the country and unavailable for comment last week.

Chief Deputy Attorney General Cynthia Coffman said that while she could not comment on a lawsuit that state attorneys had not yet reviewed, the attorney general's office would "vigorously defend" TABOR in court.

TABOR limits state revenue, and it requires all governments to get voter approval for tax increases.

The lawsuit is being led by Rep. Andy Kerr, D-Lakewood, and includes 33 other plaintiffs, including three other current Democratic lawmakers.

Former state Sen. Norma Anderson, R-Lakewood, and former Rep. Bob Briggs, R-Westminster, also added their names to the lawsuit.

The litigation is the handiwork of Boulder Republican attorney Herb Fenster, whose career spans five decades and has featured high-profile cases in Washington, D.C., including defending former Interior Secretary Gale Norton in Indian trust litigation and battling then-Defense Secretary Dick Cheney over the cancellation of a multibillion-dollar contract for the A-12 stealth fighter.

Fenster is joined in the effort by other lawyers, including former Congressman David Skaggs and former state Sen. Mike Feeley of Lakewood, both Democrats.

All the attorneys are working pro bono on the case.

Skaggs and Feeley said that while the legal arguments behind the lawsuit have been swirling around Colorado for years, the state's most recent budget crisis — which has resulted in several years of deep cuts to education — brought a new urgency to the issue.

"Lately, people have taken a harder look at what is wrong here, what is the problem," Feeley said.

"Deterioration of the state's funding base has been slowed by many attempts to patch, cover over, or bypass the straitjacket of TABOR," the plaintiffs argue. "However, events have demonstrated that a legislature unable to raise and appropriate funds cannot meet its primary constitutional obligations or provide services that are essential for a state."

TABOR defenders such as Jon Caldara, president of the libertarian-conservative Independence Institute, say the lawsuit is not just an attack on TABOR.

"It's again another attack on the initiative process in Colorado," said Caldara, who has sponsored a number of prior initiatives.

If TABOR is unconstitutional, why wouldn't Amendment 23 — the voter-approved measure that requires spending on public schools to increase every year — also be unconstitutional? Caldara asked.

"On the fanciful chance that he (Fenster) is actually going to be successful," Caldara said, "every initiative that the citizens of Colorado have passed will be summarily ripped from the books."

Feeley agreed that while the case could have wider repercussions, he said, "We're not going after anything but TABOR."

But the language in the lawsuit makes clear it is intended to resolve a fundamental conflict between republican government and direct democracy.

"At our nation's birth, some 3 million citizens acted through their representatives at a constitutional convention to commit the nation to a government of representative democracy, a republic, and rejected direct democracy," the lawsuit argues. "Today, the Constitution carries the same commitment in a nation of over 300 million people."

"Frustration with the work of legislatures, whether federal or state, may indicate a need for representative institutions to be more effective, but that frustration does not justify or permit resorting to direct democracy," the suit states.

There is wide agreement that the case sails into largely uncharted legal waters.

Scott Moss, a professor of constitutional law at the University of Colorado at Boulder, said the most relevant case from the U.S. Supreme Court is nearly 100 years old, and in that instance, the high court essentially punted on the question of whether an initiative violates the "guarantee clause" that requires that states have a republican form of government.

"It's always tough to predict a case when nobody was alive for the last relevant decision," Moss said. "The plaintiffs have a nonfrivolous argument, but they'd be asking the court to make new law."

Tim Hoover: 303-954-1626 or thoover@denverpost.com
Who's behind it

Plaintiffs in the lawsuit challenging the constitutionality of the Taxpayer's Bill of Rights, or TABOR

DEMOCRATS

• State Rep. Andy Kerr, Lakewood

• Elaine Gantz Berman, member of the State Board of Education, Denver

• Paul Booth, instructor at Fort Lewis College, Durango

• William Bregar, member of the Pueblo District 70 Board of Education, Pueblo

• Trudy Brown, citizen of Denver

• Dr. Richard Byyny, director of the Center for Health Policy at the University of Colorado Hospital and former chancellor of the CU-Boulder campus, Boulder

• State Rep. Lois Court of Denver, Denver

• Theresa Crater, professor at Metro State College of Denver, Lafayette

• Stephanie Garcia, member Pueblo City Board of Education, Pueblo

• State Rep. Dickey Lee Hullinghorst, Boulder

• Nancy Jackson, Arapahoe County commissioner, Aurora

• State Rep. Claire Levy, Boulder

• Margaret "Molly" Markert, Aurora city councilwoman, Aurora

• Monisha Merchant, member of the University of Colorado Board of Regents, Lakewood

• Former state Rep. Michael Merrifield, Manitou Springs

• State Senate Majority Leader John Morse, Colorado Springs

• Pat Noonan, former Arapahoe County commissioner, Aurora

• Ben Pearlman, Boulder County commissioner, Lyons

• Frank Weddig, Arapahoe County commissioner, Aurora

• Former state Rep. Paul Weissmann, Louisville

REPUBLICANS

• Former state Sen. Norma Anderson of Lakewood

• Jane Barnes, member of the Jefferson County Board of Education, Lakewood

• Alexander Bracken, former member of the Colorado Commission on Higher Education and former president of the University of Colorado, Lafayette

• Former state Rep. Bob Briggs of Westminster, a city councilman in Westminster

• Bruce Broderius, member of the Weld County District 6 Board of Education, Greeley

• Former state Rep. John Buechner, a current Lafayette city councilman and former president of CU, Lafayette

• Stephen Burkholder, former mayor and councilman in Lakewood, Lakewood

• Robin Crossan, president of the Steamboat Springs RE-2 Board of Education, Steamboat Springs

• Richard Ferdinandsen, former Jefferson County commissioner, Arvada

• Former state Rep. William Kaufman, member of the Colorado Transportation Commission, Windsor

• Marcella "Marcy" Morrison, Manitou Springs

• Joseph P. White, teacher at ThunderRidge High School, Highlands Ranch

UNAFFILIATED

• Megan Masten, parent, Highlands Ranch

• Wallace Pulliam, former director of the Regional Transportation District, Arvada

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