April 06, 2009 10:55 PM UTC

Overreach Has Consequences

•  
• by: Colorado Pols

So we had this lawsuit, Mesa County v. Colorado, which challenged the constitutionality of the plan to freeze property tax rates that would otherwise drop artificially in order to fund public education. And the plaintiffs lost this lawsuit, by a pretty wide margin in the Colorado Supreme Court as it turned out.

Indeed plaintiffs, pushed forward by tireless backing from the Independence Institute and other right-wing advocacy groups, “lost” a hell of a lot more than just that lawsuit–in the course of rendering their decision in the case of Mesa County v. Colorado, the Colorado Supreme Court undid much of the untested assumption that had guided (some say straightjacketed) the legislature since 1992. The Durango Herald summarized this weekend:

In the opinion, five of the seven justices legally defined important language in TABOR for the first time.

Inside the Capitol, TABOR’s requirement of a vote of the people on any “tax policy change directly causing a net tax revenue gain” is famous. Until this week, lawmakers had assumed it meant anything that brought in even a penny required voter approval.

But the justices defined it in the context of another famous part of TABOR, which limits state revenue growth to the rates of inflation plus population growth. To take the “tax policy change” language at face value would eliminate the need for the inflation-plus-population formula, the justices said. Therefore, the Supreme Court in the future will say a vote is needed only for tax changes that bring state revenue above the inflation-plus-population limit.

Voters in 2005 suspended the inflation-plus-population limit until 2010. A legislative lawyer says until the suspension expires, the Legislature can repeal all the tax credits it wants. [Pols emphasis]

Wait, you mean Governor Ritter didn’t need to take Amendment 58 for example, the severance tax credit repeal, to bat against a multimillion dollar opposition campaign…at all? Bet he wishes he would have known that! And of course if Jon Caldara and Janet Rowland hadn’t decided to force the issue, we might never have known. This is key: they could have left well enough alone, and we might today still be operating on this much narrower, pre-Mesa v. Colorado interpretation of TABOR. But we’re not, and it’s a very reasonable argument that Caldara’s and Rowland’s overreach helped unmake the Taxpayer’s Bill of Rights.

Poetic justice, wouldn’t you say?