Lawsuit Challenging TABOR Can Proceed, Federal Appeals Court Rules

July 22, 2019
The Denver skyline.The Denver skyline.Hart Van Denburg/CPR News
The Denver skyline.

A nearly decade-old lawsuit against the Colorado Taxpayer’s Bill of Rights is back on, after a U.S. Court of Appeals ruling on Monday.

The 2011 lawsuit filed by elected officials, school administrators and others, argues that TABOR violates the U.S. Constitution’s directive for states to operate under a republican form of government. 

Under that system, legislators have the ability to tax and spend. TABOR, which Colorado voters added to the state constitution in 1992, bars any tax increase without first receiving voter approval. It also limits how quickly all forms of government can grow in the state.

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But the lawsuit’s merits have yet to be heard by any court. The case has been mired in years of arguments over whether the plaintiffs have standing to bring the suit. On Monday, a panel of 10th Circuit U.S. Court of Appeals judges said the lower U.S. District Court in Colorado erred in dismissing the case two years ago.

“This case is rife with difficult issues, and we applaud the district court for its attempts to ‘don waders’ and generate some cognizable structure out of the sludge,” the court’s majority wrote. “Nevertheless, we conclude that it could not properly reach its conclusions at this stage of litigation.”

Former U.S. Rep. David Skaggs is part of the legal team representing the plaintiffs pro bono. He said they first presented their arguments to the Court of Appeals in May of 2018.

“We've been anxiously awaiting a decision and glad to have it,” he said. “And we hope now to get down to the basics of establishing our case.”

Skaggs said the U.S. District Court in Colorado will likely take the case again in the next few weeks. 

The Colorado Attorney General’s office, led by Democrat Phil Weiser, is defending TABOR in court. Department spokesman Lawrence Pacheco declined to discuss the details of the case but said the attorney general would continue to defend the state constitution.

TABOR is facing two other significant challenges. A liberal advocacy group is pursuing a possible 2020 ballot measure that would repeal TABOR entirely, and a 2019 ballot measure could weaken parts of TABOR.