Federal Suit Challenging TABOR Lives Another Day

(Promoted by Colorado Pols)

In the case of Kerr v. Hickenlooper, state legislators and others have sought to have Colorado's taxpayer's bill of rights (TABOR) declared unconstitutional because it deprives Colorado of a Republican form of government, under the federal constitutional guaranty clause and the act that authorized Colorado to become a state.

On Friday, the 10th Circuit Court of Appeals unanimously affirmed a decision of the U.S. District Court for the District of Colorado refusing to dismiss the lawsuit either on the ground that the Plaintiffs lacked standing to sue, or on the grounds that this was a "political question" beyond the jurisdiction of the courts to resolve.  An additional equal protection claim was dismissed by the trial court, but that dismissal was beyond the scope of the appeal decided with the permission of the trial court judge prior to a final ruling in the case.

As a result, the case will now go forward on the merits of whether or not TABOR deprives the citizens of the State of Colorado of a Republican form of government, unless an en banc panel of the 10th Circuit or the U.S. Supreme Court decide to stop the suit now (both of which are unlikely since this is not a final determination of the case of the merits).  Since the decision will now be on the merits of the case, the stakes are now much higher.  Realistically, however, this lawsuit is still a long shot that is unlikely to prevail.

The 10th Circuit ruling is available at: http://www.ca10.uscourts.gov/opinions/12/12-1445.pdf

10 Community Comments, Facebook Comments

  1. ModeratusModeratus says:

    I agree it's a long shot, and it looks horrible to the voters in an election year. Democrats don't trust the voters to approve tax increases, but voters sure do trust themselves. I hope every voters gets that message before Election Day.

  2. ElliotFladenElliotFladen says:

    It is shocking that this suit has survived a challenge on standing grounds.  It is generally beaten into almost all law students' heads that "republican form of government" challenges always fail.  Apparently that is now incorrect

    • Republican 36 says:

      You're generally correct but I don't remember the constitutional provision regarding republican form of government ever coming up in law school. There are so few cases on the subject. Such challenges in the past have failed but the one challenging TABOR is unique. The quesiton before the court is whether the federal guarantee of a republican form of government for each state is breached when the power to tax is completely taken away from the legiislative branch of government. In other words, is the power to tax so fundamental that once it is removed we no longer have a republican form of government? That's what the U.S. District Court will decide.

      Oklahoma and California allow their respective legislature to pass taxes with a super majority. A three quarters majority is required in Oklahoma and a two thirds majority in California but the key difference between those states and Colorado is the legislative branch in those states still retains the authority to pass a tax increase.

      This will be an interesting case and should be heard on the merits. The court(s) will define what constitutes a republican form of government. From my perspective I hope the court finds TABOR violates that clause of the United States Constitution. We need to return to a representative form of government. Our founders considered direct democracy at the Constitutional Convention and rejected it. Based on that it doesn't appear they favored direct democracy or believed it falls within the definition of republican form of government.

      • Solid analysis, R36. his is a unique case, and I'm guessing that there really is no guiding case law on the subject.

        I do think that this is still a long shot case, but it will be an interesting one to watch.

      • ohwilleke says:

        If you look at the intent of the founders and the way that phrase was used in the late 1700s, the overwhelming focus of the Republican government clause was on preventing a monarchy or hereditary aristocracy.  It is deeply intertwined with the constitutional provision related to prohibiting grants of nobility. At the time the phrase was synonomous with "a democratic form of government."  

        Nobody thought, for example, that direct democracy via town meeting, a form of local government common in New England at the time of the founding (which required a majority vote of attendees with all citizens entitled to attend to approve a budget and impose taxes) violated the Republcan government clause.  The most analogous precedent from the 1920s, one seeking to declare that an initiative and referrendum system was a violation of the Republican government clause in the Pacific NW somewhere, was rebuffed under the political question doctrine and the State of Colorado had argued for (but not received) the same result in this case.  And references in the constitution to state legislatures have not always been interpreted literally when a state constitution assigns a task to another institution under its constitution (e.g. regarding reapportionment).

        A violation of the Republican government clause also authorizes Congress ad the President to invade and impose military law in a state to secure regime change, just like an invasion or insurrection.  This sets the bar of bad conduct quite high.

        If TABOR ran the state purely on autopilot without possibility of modification, or if there was a fiscal crisis such that complying with TABOR was only possible if some other binding fiscal contraint was violated, then I think there might be a Republican government clause case.  But, when all TABOR does is require a tax measure approved by the legislature to be ratified by a majority of voters casting votes in a jurisdiction wide election (just as the state constitution requires constitutional amendments to be put to a vote of the people), and there will be evidence in the record of large numbers of DeBrucing measures approved by local voters and of TABOR tax increase approvals receiving approval from state voters in the past, it is going to be hard to argue that this makes Colorado's system of governent so undemocratic that it is unconstitutional and authorizes martial law if the President and Congress deem fit.

        TABOR is awful policy.  But, TABOR is also pretty good politics.  Indeed, it isn't unfair to argue that TABOR has helped democrats a great deal by defusing a "tax and spend" attack on Democratic candidates since they can't unilaterally approve tax increases.  If the suit had a real chance of winning, I'd think it was a good idea, but I don't think that it does and I do think that it tarnishes Democrats politically.

        • Republican 36 says:

          I respectfully disagree.

          The Founders at the Constitutional Convention debated direct democracy and worried about how a nation as large as the thirteen original states could be governed because all forms of even temporarily successful democracies or republics, such as Athens and other Greek city states, had governed a small geographic area where the population was concentrated. In response to those worries, the Founders devised representative government as an alternative (obviously the British Parliment already existed in this form albeit a corrupt one) and that became the definition of what constitutes a republican form of government.

          The fact the public has final say over any tax increase isn't the point and certainly doesn't help TABOR pass constitutional muster. Its the fact the Colorado General Assembly has no authority over tax policy unless it is to cut taxes.

          • ohwilleke says:

            One of the few cases to address the question on the merits (as opposed to under the political question doctrine) is the case Bernzen v. City of Boulder, 525 P.2d 416, 419 (Colo. 1974), in which the Colorado Supreme Court held that: "We view recall, as well as the initiative and referendum, as fundamental rights of a republican form of government which the people have reserved unto themselves. As stated in Brooks v. Zabka, 168 Colo. 265, 450 P.2d 653 (1969) at 268, 450 P.2d at 655: "Such a reservation of power in the people must be liberally construed in favor of the right of the people to exercise it. Conversely, limitations on the power of referendum must be strictly construed." (as an aside the case involved a recall effort directed at city councilman Penfield Tate, whose mayoral campaign in Denver a quarter of a century later, I volunteered in).

            The Heritage Foundation has this to say about the meaning of the Republican Government clause (in an essay at http://www.heritage.org/constitution/#!/articles/4/essays/128/guarantee-clause):

            "

            The assurance of a republican form did not appear in the Articles of Confederation. Participants in the Constitutional debate of 1787–1788 expressed varying views over exactly what constituted the "Republican Form" of government. However, there was a consensus as to three criteria of republicanism, the lack of any of which would render a government un-republican.

            The first of these criteria was popular rule. The Founders believed that for government to be republican, political decisions had to be made by a majority (or in some cases, a plurality) of voting citizens. The citizenry might act either directly or through elected representatives. Either way, republican government was government accountable to the citizenry. . . The second required element of republican government was that there be no monarch. . . .The third criterion for a republic was the rule of law. . . .

            It is sometimes claimed that the Founders wanted American governments to be "republics rather than democracies," but this claim is not quite accurate. In their linguistic usage, the Founders employed the terms "democracy" and "republic" with overlapping or even interchangeable meanings.

            Only one species of democracy was deemed inconsistent with republicanism. This was "pure democracy" or "simple and perfect democracy," a theoretical constitution identified by Aristotle and mentioned by John Adams and James Madison, among others. A pure democracy had no magistrates, because the "mob" made all decisions, including all executive and judicial decisions. The Founders saw this kind of democracy as inconsistent with republicanism, because it did not honor the rule of law. The Guarantee Clause's protection against domestic violence assures orderly government and the rule of law, and protects the states' legitimate magistracy against mob rule.

            The primary purpose of the Guarantee Clause, however, was not protection against pure democracy but against monarchy. Based on precedents in ancient Greece, the drafters feared that kings in one or more states would attempt to expand their power in ways that would destabilize the entire federation. Having republican government in each state was deemed necessary to protect republican government throughout the United States.

            Two U.S. Supreme Court cases (in additon to a U.S. Court of Appeals decision from the 1940s) also hold that a Congressional decision to seat U.S. Representatives and U.S. Senators from a state constitutes a determination that a state has a Republican form of government that is binding on all other departments of government and makes these decisions political questions,  See Luther v. Borden (U.S. 1849) and Pacific States Telephone & Telegraph Co. v. Oregon (U.S. 1912).  But, the 10th Circuit rejected this analysis in the Kerr v. Hickenlooper (2014).

             

            • Republican 36 says:

              Again, I respectfully disagree.

              The Bernzen case isn't relevant. It doesn't concern the stripping of the primary power from one branch of government. It certainly holds that the initiative powere should be liberally construed but it doesn't deal with the definition of what constitutes a republican form of government.

              I agree the Founders were concerned about a strong executive that could become a monarchy or, in our time, a dictatorship but they were also concerned about the unbridled emotion of mob rule. They sought a government that balanced popular rule with reasoned governance. The Federalist Papers discuss at length how representative government is designed to balance the different interests in society off against each other so that the legislative branch, in particular, can consider the various interests, including policy and political positions, strike a compromise and enact a law.  Thus was born the republican form of government protected by the Guarantee Clause.

              TABOR on the other hand undermines that concept by stripping the legislative branch of its power to tax and leaving it to an all or nothing initiative or referendum vote of the public where the competing interests are without doubt no longer represented nor can even be considered through the normal representative forms of representation found in the republican form of government.

              The federal court cases you cite hold what they hold but they never squarely addressed the issue now before the Court in Denver. The TABOR case is one of first impression and needs to be decided on the merits.

               

  3. Not Dame Edna says:

    Voters have proven over and over again that they will not approve tax increases and will instead vote for the interests of big business over their own pocketbook, proving that a lot of TV scare ads work.

    The majority of taxpayers don't want to pay for but they do want good schools, affordable higher education and good roads. Just a few of many services that Colorado is now at the bottom of the list of states on funding levels. So do the taxpayers know best?

    TABOR has robbed our beautiful state of the ability to pay for good governance and properly serving it's citizens. If we wanted a mob rule system of government, we can go back to Ancient Greece, where pure democracy failed. I pledge allegiance to the Repbublic of the United States. To whom is your allegiance pledged Mr. Fladen?

  4. ohwilleke says:

    One of the few cases to address the question on the merits (as opposed to under the political question doctrine) is the case Bernzen v. City of Boulder, 525 P.2d 416, 419 (Colo. 1974), in which the Colorado Supreme Court held that: "We view recall, as well as the initiative and referendum, as fundamental rights of a republican form of government which the people have reserved unto themselves. As stated in Brooks v. Zabka, 168 Colo. 265, 450 P.2d 653 (1969) at 268, 450 P.2d at 655: "Such a reservation of power in the people must be liberally construed in favor of the right of the people to exercise it. Conversely, limitations on the power of referendum must be strictly construed." (as an aside the case involved a recall effort directed at city councilman Penfield Tate, whose mayoral campaign in Denver a quarter of a century later, I volunteered in).

    The Heritage Foundation has this to say about the meaning of the Republican Government clause (in an essay at http://www.heritage.org/constitution/#!/articles/4/essays/128/guarantee-clause):

    "

    The assurance of a republican form did not appear in the Articles of Confederation. Participants in the Constitutional debate of 1787–1788 expressed varying views over exactly what constituted the "Republican Form" of government. However, there was a consensus as to three criteria of republicanism, the lack of any of which would render a government un-republican.

    The first of these criteria was popular rule. The Founders believed that for government to be republican, political decisions had to be made by a majority (or in some cases, a plurality) of voting citizens. The citizenry might act either directly or through elected representatives. Either way, republican government was government accountable to the citizenry. . . The second required element of republican government was that there be no monarch. . . .The third criterion for a republic was the rule of law. . . .

    It is sometimes claimed that the Founders wanted American governments to be "republics rather than democracies," but this claim is not quite accurate. In their linguistic usage, the Founders employed the terms "democracy" and "republic" with overlapping or even interchangeable meanings.

    Only one species of democracy was deemed inconsistent with republicanism. This was "pure democracy" or "simple and perfect democracy," a theoretical constitution identified by Aristotle and mentioned by John Adams and James Madison, among others. A pure democracy had no magistrates, because the "mob" made all decisions, including all executive and judicial decisions. The Founders saw this kind of democracy as inconsistent with republicanism, because it did not honor the rule of law. The Guarantee Clause's protection against domestic violence assures orderly government and the rule of law, and protects the states' legitimate magistracy against mob rule.

    The primary purpose of the Guarantee Clause, however, was not protection against pure democracy but against monarchy. Based on precedents in ancient Greece, the drafters feared that kings in one or more states would attempt to expand their power in ways that would destabilize the entire federation. Having republican government in each state was deemed necessary to protect republican government throughout the United States.

    Two U.S. Supreme Court cases (in additon to a U.S. Court of Appeals decision from the 1940s) also hold that a Congressional decision to seat U.S. Representatives and U.S. Senators from a state constitutes a determination that a state has a Republican form of government that is binding on all other departments of government and makes these decisions political questions,  See Luther v. Borden (U.S. 1849) and Pacific States Telephone & Telegraph Co. v. Oregon (U.S. 1912).  But, the 10th Circuit rejected this analysis in the Kerr v. Hickenlooper (2014).

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