Tuesday, July 31, 2012

Federal District Court Breaks New Ground In Allowing TABOR Lawsuit To Proceed

Yesterday in Denver, U.S. District Judge William J. Martínez ruled that the lawsuit against Colorado’s Taxpayer Bill of Rights (known as “TABOR,” and which “limits state spending and bars lawmakers from raising taxes without a vote of the people”) could proceed partly under the theory that it violated “Republican Form of Government Clause” of Article IV, Section 4 of the United States Constitution.   In so ruling, Judge Martínez boldly went where no Supreme Court Justice had gone before – she found that a case alleging a “Republican Form of Government” violation as its theoretical basis was justiciable (i.e. the Court could rule on it as opposed to being required to immediately dismiss it).  Many cases, in fact, had held the opposite.  See, e.g.,Luther v. Borden, 48 U.S. (7 how.) 1 (1849), Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912); Baker v. Carr, 369 U.S. 186 (1962).  It will be interesting to see whether there a possible future appeal on this point reaches the same result.   It will also be interesting to see if any conservative legal groups/attorneys take the ruling as an invitation to challenge taxing and spending mandates approved through the initiative process that progressives have backed.  See, e.g.,  (courtesy of the Reply Brief in the case) Colo. Const. art. IX, § 17 (Amendment 23, added by initiative in 2000); art. X § 21 (Tobacco Tax, added by initiative in 2004).

The Case is Kerr et al. v. Hickenlooper, No. 11-cv-1350-WJM-BNB (D. Colo.)  More information on the progress of this case, including pertinent court filings, can be found here.

Elliot Fladen is a graduate of Stanford Law School and an attorney practicing law in Colorado Springs at The Fladen Law Center.  Nothing in this column constitutes legal advice or begins an attorney-client relationship with Mr. Fladen.

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