HUDSON | Sidetracked by sidebar issues, TABOR lawsuit plods onward

Author: Miller Hudson - May 23, 2018 - Updated: May 23, 2018

Miller Hudson

Last week the desultory path of the lawsuit challenging the constitutionality of Colorado’s TABOR amendment found its way into Courtroom 2 at the old federal building in downtown Denver. Just one day short of seven years since their case was originally filed, arguments and a resolution regarding the merits of plaintiffs’ claims appeared no closer than they did in May of 2011. If ever there were justification needed for Shakespeare’s appeal by Dick, the Butcher, in Henry VI, Part 2, this hearing provided it. “The first thing we do, let’s kill all the lawyers!” felt more than appropriate.

The three judges assigned by the District Court were not empaneled to consider the merits of the claim that TABOR violates the ‘Guarantee Clause’ provided in Article 4, section 4, of the U.S. Constitution; it states, “The United States shall guarantee to every state in this Union, a Republican Form of government…” Distilled to its essence, plaintiffs’ case argues that if TABOR is permitted to deny legislators the authority to raise revenue (taxes) without voter permission, Coloradans are denied a republican form of government. If you wonder what has transpired that would consume seven years of adjudication without consideration of this premise, allow me to enlighten you. Squabbles over “standing” have traveled up and down the appeals process at least twice.

The original plaintiffs comprised a bi-partisan coterie of Colorado legislators. Several of these have since been term-limited from office while the remainder will be shortly. This, in itself, would not be an obstacle to proceeding. To this point, the solicitor general has defended TABOR on behalf of Colorado taxpayers challenging whether elected officials have standing to file suit or can demonstrate harm or damages as individuals. Several years ago members of the Arizona Legislature brought suit against the redistricting system approved there by voters. A footnote to the eventual U. S. Supreme Court decision from Justice Ruth Ginsburg in this case led to an interpretation that only the Legislature, as an entity, could earn standing.

This forced plaintiffs to return to square one and substitute an assortment of local governing authorities, including Boulder County and a batch of both Republican and Democratic majority school boards and special districts, as newly minted appellants. They filled the courtroom with nearly a hundred observers, very few of whom could have followed the hour-long hearing with any sense of genuine comprehension. Former Congressman David Skaggs ably presented the case for their standing with a mind numbing recitation of precedents and references to decisions that had previously been submitted to the Judges in legal briefs. He was, in turn, grilled regarding their applicability. Governor Hickenlooper, who is the named defendant in his role as chief executive officer of the state (although probably sympathetic to the plaintiffs) was represented in an equally mystifying accounting of decisions running well back into the 20thcentury.

No decision is expected before autumn and, whatever that finding, an appeal should be anticipated. Although James Madison, who reputedly added Section 4 as an afterthought, failed to define precisely what he intended “a republican form of government” to entail, it is certainly plausible that it was meant to describe a representative assembly acting on behalf of voters. Whether voters can strip their legislators of taxing authority in favor of retaining a right of ballot box approval is a worthy debate. It seems ludicrous that it should require the better part of a decade merely to determine who has standing to force this determination.

Apparently there has only been a single Supreme Court case that relied on the protection of the guarantee clause. It was filed by a Texas suffragette who argued that the denial of the ballot excluded her from participation in a republican form of government. While imaginative for the 19thcentury, the Court ruled our Founding Fathers could have and, thus intentionally, failed to extend suffrage despite Abigail Adams’ plea to her husband that he remember “the ladies.”  No one doubts the TABOR case will eventually find its way, as well, to the U. S. Supreme Court. Plaintiffs and their attorneys are banking on the hope that an opportunity to craft new law, unmuddied by two centuries of precedents, will prove a temptation the court can’t resist.

Meanwhile, Colorado continues to careen towards an inevitable rendezvous with bankruptcy and/or fiscal collapse. Reliance on Rube Goldberg gimmicks like “opportunity grants” to fund higher education, “certificates of participation” in lieu of capital construction expenditures and a metastasizing forest of fees may soon exhaust the fiscal ingenuity of the legislature’s Joint Budget Committee. Worse yet, it places a growing proportion of Colorado’s budget on automatic pilot — precisely the result that TABOR supporters most fear. Charles Dickens’ famous accounting in “Bleak House”of a two-decade struggle in Chancery Court over an inheritance observes, “Jarndyce v. Jarndyce drones on.” Sounds familiar, doesn’t it?

Miller Hudson

Miller Hudson

Miller Hudson is a public affairs consultant and a former state legislator. He can be reached at mnhwriter@msn.com.