Federal judge dismisses TABOR lawsuit, bringing possible end to six-year court fight

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DENVER – The six-year fight over whether Colorado’s Taxpayer’s Bill of Rights (TABOR) violates state and federal laws came close to a possible end Thursday, when a U.S. District Court of Colorado judge dismissed the latest appeal and ordered the case be closed entirely.

The latest court actions from the federal district court came after the 10th Circuit Court of Appeals vacated the district court’s earlier decision that the plaintiffs in the case – which included numerous former and current state legislators, teachers and various city and county jurisdictions and departments – had standing in the case. The 10th Circuit sent the decision back to district court last June.

But the 10th Circuit’s decision came after the U.S. Supreme Court had sent the circuit court’s decision back to it in 2015, following a ruling in a similar case out of Arizona.

TABOR was instituted in Colorado in 1992 and was aimed at refunding taxpayers excess funds and limiting mill levies so as to cut back on excess government spending, according to those who passed it.

READ: Thursday's U.S. District Court of Colorado dismissal

The plaintiffs, headed by former state Senator Andy Kerr, who is now running for Colorado’s 7th Congressional District seat, sought to have TABOR dismantled under the argument that it violated various sections of the U.S. Constitution, the Colorado Constitution and the Enabling Act of 1875.

The primary defendant in the suit is Gov. John Hickenlooper, who, like other defendants, have argued that the legislators and jurisdictions didn’t have standing to bring the case forward in court.

The plaintiffs in the case filed another amended complaint last December in response to the case being remanded back to district court, which the defendants in the case motioned to dismiss days later.

Hickenlooper and his co-defendants got their wish Thursday.

Judge Raymond P. Moore tossed all the arguments made by the plaintiffs’ lawyers, often taking them to task in his decision for failing to provide any concrete examples as to how various provisions of the constitutions or Enabling Act were being violated by TABOR. He said that the case had no standing in federal court.

Moore wrote that few facts of the case had changed since it was first decided by the 10th Circuit other than the possible standing of the non-legislators.

“With respect to the individual plaintiffs, plaintiffs make no effort to discuss, analyze, or even ruminate on how the elected officials, educators and citizens have standing under either strand,” the judge wrote.

But while he determined that the political subdivisions of the state did have standing to argue under on article the Constitution because they argued that they were incurring extra costs for ballot measures to be presented to voters, as required by TABOR, he found no standing under other grounds.

“The Court does not find the fact that the political-subdivision plaintiffs are seeking to enforce a federal statute via the Supremacy Clause alone to be determinative,” Judge Moore wrote, citing two other Colorado cases that brought up similar issues: Branson and City of Hugo.

Moore also wrote that the plaintiffs’ lawyers failed to establish standing in regards to the Enabling Act, which Moore said was “particularly troubling.”

He determined that under the Enabling Act, the Colorado Constitution was formed for the people of Colorado, and not the state’s political subdivisions, which therefore meant, he wrote, that their argument had no standing and that the plaintiffs were working on the behalf of others.

“The standing issue for the political-subdivision plaintiffs is whether they are enforcing rights granted to them by the Enabling Act,” he wrote. “This is a completely different inquiry to whether a Republican form of government has been undermined by TABOR.”

Colorado Attorney General Cynthia Coffman praised Judge Moore’s decision.

“After 6 years of litigation, the federal court today entered an order that should put an end to this protracted and unproductive litigation. The district court’s order recognizes that this suit is an improper attempt to debate a public policy question through a federal lawsuit,” Coffman said.

“We hope the plaintiffs in this case will not appeal, given that my office has won victories in the Supreme Court, the Tenth Circuit Court of Appeals, and now the federal district court. The parties can certainly continue to oppose TABOR as a matter of policy and politics, but it’s long past time they gave up their frivolous lawsuit.”

A spokeswoman for the plaintiffs said their legal team had not had time to review the order, but said the team would reconvene next week to determine their next steps in the case, and if they plan to appeal again.

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