First Stage of Death of TABOR? Perhaps

We didn’t get a chance to get to this earlier, but comments by U.S. District Judge William Martinez yesterday could be the first step in the eventual overturning of TABOR. Tim Hoover of the Denver newspaper reports that Martinez disagreed with a key argument from the defense — in this case, the Colorado Attorney General’s office — that sought to throw out a lawsuit based on an old Oregon ruling regarding state initiatives versus a constitutional right to a “republican form of government.”

Joe Hanel of The Durango Herald elaborates:

Lawyers for the state argued that U.S. District Judge William Martinez should throw the case out because it’s a political question not suited for the courts. They pinned their argument on a 100-year-old case from Oregon.

But Martinez made clear at the beginning of the hearing that he disagreed that the Oregon case applied to the TABOR lawsuit. The judge quizzed Assistant Attorney General Megan Paris Rundlet with a hypothetical situation.

“What if tomorrow, a ballot started to be circulated for the abolition of the Colorado Legislature? And what if, given how popular legislatures are these days … it passed?” Martinez said.

Rundlet paused, and then said the current case law would bar courts from overturning such a ballot measure.

It is certainly too early to point to any potential decision, which Judge Martinez said could be months down the line, but our understanding is that yesterday’s proceedings absolutely did not go well for TABOR backers.

On a separate note, Judge Martinez probably just gave the Tea Party an idea for their next ballot measure.

37 Community Comments, Facebook Comments

  1. Gray in Mountains says:

    Looks like Judge Martinez is giving this a good look which gives me a lot of hope

    • ArapaGOPArapaGOP says:

      I know that Democrats go crying to the activist courts any time those pesky voters don’t grant them their every whim, but if the people don’t like the current state of affairs, they have a straightforward way to fix that.

      If a political remedy exists, which it does in the form of the same election that approved TABOR, then there is no need for the courts to invalidate it.

      I hope Andy Kerr enjoys the direct mail pieces!

      • Ralphie says:

        = any court you disagree with.

        The most activist court decision in history was Bush v. Gore, but I suppose that one was all right with you.

      • Colorado PolsColorado Pols says:

        Thinking they should have the authority to do their job. The nerve!

      • It is very very hard to undo TABOR, because one of TABOR’s provisions is the single subject initiative provision – a provision which TABOR itself violates, and under which it is extremely hard to undo TABOR in the whole.

        • RedGreenRedGreen says:

          the single-subject amendment is not one of TABOR’s provisions, it was a separate amendment passed in 1994. Of course, it makes undoing TABOR in one fell swoop impossible.

        • MtSherman says:

          Even if the single subject provision were not in place why do you think that voters would “undo TABOR in the whole”?

          I think this is one of those areas where the beliefs of the majority of voters is with the rhetoric of TABOR. People like the idea of government being unable to raise taxes in the abstract even while recognizing problems with parts of TABOR that harm their interests or result in bad choices.

          I think if TABOR were ever to be repealed through a vote it would have to be through successive amendments chipping away at problems one at a time rather than a swift cutting of the Gordian Knot.  

          • cunninjo says:

            But are the voters in agreement with the rhetoric of TABOR simply because they are too lazy to pay attention to what their elected officials are doing?

            I’m much more in favor of having a super-majority requirement in order for the legislature to raise taxes, in addition to allowing voter initiatives to also raise taxes with a simple majority vote by the public.

            • MtSherman says:

              I think that California’s experience with the requirement that spending be approved by a super-majority is suggestive of what the result of such a rule would be. I think a minority who, for cynical gain or honest ideology, would oppose raising taxes for any purpose whatsoever.

              I think there needs to be an out for a simple majority of the legislature to raise taxes rather than always requiring a super-majority.

              One idea would be to allow a simple majority to pass a tax after a two year waiting period so that a election that could be a referendum on the legislators could occur.

              Another idea would be to limit total revenue collected by the state to a percentage of gross state product (the state equivalent of GDP). Require a super-majority to raise the limit, but allow the legislature to change taxes and fees under the limit.

              Or to only require a simple majority to raise taxes if revenue drops off or to undo a tax/fee cut enacted within a time limit.

              There are probably even better ideas out there as a replacements for TABOR since these are just ideas that I have come up with rather than researching. And all of this is just idle speculation unless someone brave actually sets about a campaign to reform/replace TABOR with something better.

          • MADCO says:

            Did a majority oppose the Civil Rights movement? If they had, would it have made their opposition legitimate?

            The problem is that TABOR doesn’t do what voters think it does.  So they favor what they mistakenly think it is for what they think it mistakenly does.

            But when you don’t call it TABOR and instead describe its actual impact, voters want it gone.  How many municipalities and other subdivisions of gov’t have “de-TABOR’d”?  Most.

      • Do you know the definition of Representative Democracy?

        Purse Dogs for “I am better looking than Ryan Call” ArapaGOP:…

      • Konola says:

        ArapaGOP, would those be the same activist courts that the GOP went running to when they didn’t like how political district lines were drawn?

    • BlueCat says:

      very good points but I wouldn’t get my hopes up even though the judge’s reasoning strikes me as perfect.  

  2. divergent_tdog says:

    Mark Sagoff, in a piece about cost benefit analysis, wrote about acting as consumers or acting as citizens. I think it applies here in that by passing TABOR, some people in this state said we should always be consumers, always keep our taxes low, especially if we think it’s not going to help us out directly. But by doing this, they made it so that we can’t elect representatives to serve in our best interest as citizens and make decisions based on the welfare of the entire state. Unfortunately when it comes to directly taxing themselves, a majority think that rational decisions are only as consumers and only short term. Death to TABOR!

  3. BlueCat says:

    What if tomorrow, a ballot started to be circulated for the abolition of the Colorado Legislature? And what if, given how popular legislatures are these days … it passed?” Martinez said.

    Rundlet paused, and then said the current case law would bar courts from overturning such a ballot measure.

    I guess abolishing government is the next logical anti-tax, anti-government, Bruce loving step. And I guess only an “activist” judge would stand in the way?  

    • RedGreenRedGreen says:

      A real TABOR foe would propose that amendment right away, and see how far it got through the process, just to demonstrate that it’s a distinction without a difference to abolish the legislature or gut its ability to raise revenue.

  4. PitaPita says:

    would silently applaud the demise of TABOR while damning the “activist judge”.  It’s been a pain in the ass since the day it passed and they know it – particularly those that have served on the JBC.    

  5. dmindgo says:

    An affordable housing group I was part of was trying to figure out how to work around TABOR.  I suggested going after TABOR itself.  They looked at me like I was crazy, which I wasn’t then but have gotten there since.  Anyway, huge kudos to the people who have brought this suit to the courts.  Patriots!

  6. If TABOR was so fundamentally wrong, its opponents would be gathering signatures for a constitutional amendment to repeal it.  Instead, five sitting members of the state legislature — all Democrats — are pushing the state courts to overturn a measure that has been in place since 1993.  (The former GOP elected officials are just window dressing.)

    This has to be the Colorado Republicans’ dream come true.  Trust me, the public is not clambering to have their right to approve tax increases pried from their hands, so assorted legislative bodies (not just the General Assembly) can raise their taxes. Without TABOR, city councils, county commissioners, school boards, and a slew of special district boards can raise taxes for pet projects merely by a vote of their own membership.  

    Prop 103, which went down in flames by a 2 to 1 margin in 2011, could have passed instead by a vote of state legislature and the governor’s signature.  Forget how the people felt about it!

    There is no way this effort is not going to appear to be highly partisan and Democrats are on the wrong side of this issue.  If TABOR gets overturned by Judge William Martinez, it won’t be hard for voters to see Dems as “tax and spend” politicians.

    Voters love TABOR and won’t treat those who sought to remove it kindly.  They will not accept the paternalist attitude of “we legislators know what’s best for you.”  Whether people are employed, underemployed, or unemployed, they simply do not have the money for new taxes to pay for whatever new program politicians can come up with.

    Overturning TABOR will have a huge impact on the make up of the General Assembly.  It won’t be difficult for voters to see that their best alternative — if TABOR is overturned — is to elect Republican candidates to offices throughout the state.  

    • A repeal would be too complex to fall under the single subject amendment.

      Aside from that, the wonder of representative government is that if a legislative version of Prop 103 had passed and the voters disagreed, then they would be able to vote out those legislators within two years, and it could be repealed and wouldn’t happen again.

      This is what happened to Republicans in state government over the past decades – they couldn’t get past the whole illegal lesbian immigrants crossing the border to kidnap people to give them forced abortions while helpless citizens were denied the right to own guns to protect their family thing.  (Add to that now that they voted while here illegally…)

    • Republican 36 says:

      You assert the voters will turn their backs on the Democrats for supporting this lawsuit and you may be correct, but isn’t that exactly why we should have a legislature with the authority to raise or decrease taxes. If a given legislature raises taxes then it is the responsibility of the voters who disagree to hold those members who voted for a tax increase accountable at the next election. We elect members of the state legislature to enact budgets and other policies to operate the state of Colorado. Why shouldn’t each legislature have the responsibility and accountability to the voters to do exactly that? Why tie their hands and then blame them for failing to fullfill their responsibilities? The power and authority to either raise or decrease taxes has been a traditional power of the legislative branch of government ever since republican forms of government were established. TABOR is an outlier that was never justified either from the perspective of a republican form of government or from the practical side of present day policy challenges or historical actions by the General Assembly.

  7. DavidThi808DavidThi808 says:

    A lot of voters in this state want to be asked to raise taxes. Probably a majority in any election on the issue (due to the way the ads would run). But at present it’s incredibly restrictive.

    What if instead the state could have total receipts equal to X% of the state GDP averaged over the previous 3 years. The legislature sets the various taxes and fees but is limited to the total.

    And to raise the total, that requires a vote of the people.

    • Gray in Mountains says:

      says Martinez still is interested in the notion of standing which is no surprise. But, in the case of TABOR I think any citizen could claim injury since we all have something not funded properly  

    • If it takes two years to raise taxes above some threshold and the need is more urgent (say, Federal tax policy that would allow the state to take advantage of something in less than a year, but is a short-term boost), then we’re still screwed.

      I’d be more in favor of a negative feedback provision allowing the citizens to override a tax hike (and prevent the legislature from simply passing a replacement after the rejection…).

      PS – A lot of voters in this state also would rather have a pony, and would like to not pay any taxes at all.  That doesn’t mean it’s the right thing for the state.

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