Colorado seeks dismissal of anti-TABOR lawsuit in 10th Circuit Court of Appeals

Colorado state attorneys asked a 3-judge panel of the 10th Circuit Court of Appeals in oral arguments Monday to dismiss the frivolous, groundless, and vexatious politically-motivated lawsuit attempting to overturn a Colorado Constitutional Amendment (the Taxpayer’s Bill of Rights, known as “TABOR”) filed in Federal court in May 2011 – (which, after several rounds of motions and counter-motions, was allowed to proceed to trial in July 2012 (despite clear constitutional precedent disallowing challenges on the basis of the “Guarantee Clause”).

In arguments Monday, state Solicitor General Daniel Domenico told a three-judge panel of the 10th U.S. Circuit Court of Appeals that lawmakers still have the ability to ask voters to approve a tax increase if they think one is needed under the Taxpayer’s Bill of Rights.

“Just because it’s a little bit harder doesn’t make it unrepublican,” he said of the referendum needed to raise taxes under TABOR. (See, “Appeals Court Panel Considers TABOR Challenge,” CBS News 23 Sep 2013)

State attorneys were supported in their Motion to Dismiss by an amicus brief filed earlier this year by the Colorado Union of Taxpayers (CUT) underlining the fact that the lawsuit’s claims present a “nonjusticiable political question” and highlighting the importance of preserving the separation of powers that could be jeopardized by a court ruling striking down the TABOR constitutional amendment.

Some key points:

  • The General Assembly’s power to propose taxes has always been subject to numerous constitutional limitations, qualifications, and exemptions.
  • And the people retain ultimate veto authority over all acts of the General Assembly, including taxation and spending.

Id. art. V, § 1 (“The legislative power of the state shall be vested in the general assembly . . . but the people reserve to themselves the power . . . at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.”).

  • TABOR’s primary restraint on the legislature is procedural, not substantive. … It is this element of democratic accountability and constitutional restraint that Plaintiffs challenge in this litigation.


As previously noted, the lawsuit is lacking in legal merit, and constitutional case law precedent (including two relevant Supreme Court of the United States [SCOTUS] decisions, as also noted earlier) is clear that the “Republican form of government” language in the Constitution’s “Guarantee Clause” (United States Constitution, Article IV, Section 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government“) is non-justiciable (meaning, not subject to determination by the courts).  Constitutional constraints on government are, by definition, constitutionally allowed – failing to dismiss this clearly frivolous lawsuit would cost Colorado taxpayers hundreds of thousands in legal fees and costs, and will almost certainly ultimately end up before the United States Supreme Court since overturning a state constitutional amendment by judicial fiat would have immense implications for the citizens’ initiative process and the right of the people to limit government power by constitutional limits nationwide.

If “We The People” cannot set constitutional limits on government power, then the very founding principles of this nation – indeed, the foundations of Liberty itself – are at risk.

Reference state’s Motion to Dismiss Plaintiffs’ Substitute Complaint (which was filed back in August by Governor Hickenlooper and Attorney General Suthers – also, analysis of the state’s Motion to Dismiss).

Additional references:
A more detailed (and highly informative) discussion of the constitutionality of the citizen initiative and referendum processes may be found in the Texas Law Review article, “A Republic, Not a Democracy?  Initiative, Referendum, and the Constitution’s Guarantee Clause” by Professor Robert G. Natelson.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free –nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

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