TABOR, the Amendment That Won't Die, Staves Off Doom Again

Update: The Taxpayer's Bill of Rights, which requires tax increases to be okayed by popular vote, was approved in 1992, meaning that it's been in place for nearly a quarter-century and a pain in the neck to legislators for the same amount of time. Six years ago, a coalition of lawmakers and other notables filed suit in federal court to overturn it. But their efforts have been stymied again, this time by a U.S. District Court ruling that says the plaintiffs don't have standing to have brought the suit in the first place.

Our original report, published on May 24, 2011, has been incorporated into this post.

The case has dragged on so long that the first Colorado attorney general who came to its defense was John Suthers, who is currently the mayor of Colorado Springs. Back in 2011, his spokesman, Mike Saccone, made it clear that Suthers would stand up for the controversial amendment. 

"That's historically been our role," Saccone told us. "When the voters approve a law or a constitutional provision and it's challenged in court, we vigorously defend those measures, and TABOR is certainly no different."

As such, Suthers took on the claims of plaintiffs led by Andy Kerr, a Democratic state senator who has announced his intention to run for the 7th Congressional District seat currently held by Ed Perlmutter, now among the contestants in the 2018 race for Colorado governor. Joining Kerr were 33 others who argue in the original complaint, on view below, that the provision requiring voter approval of tax increases violates the rules of representative government, which call for elected officials to act on behalf of the citizenry. Among the documents Kerr and company use to support their arguments is "Federalist No. 10," written by James Madison in 1787.

The delay in the filing of this challenge was unusual from the beginning. As Saccone noted in our original post, suits were filed soon after the passage of two other high-profile offerings — 2006's Amendment 41, which banned public officials from accepting gifts worth more than $50, and 2008's Amendment 54, a campaign-contribution measure. The latter was ruled unconstitutionally vague the following year.

As for the TABOR suit, now known as Kerr v. Hickenlooper, it's been on a remarkable journey through the legal system. One page on TaborCase.org, the website devoted to the matter, focuses on "pleadings," and it documents dozens of filings in the U.S. District Court for Colorado, the 10th Circuit Court of Appeals and even the U.S. Supreme Court. In June 2015, the Supremes balked at a 10th Circuit finding that the plaintiffs didn't have standing, kicking the matter back to the U.S. District Court — which has now come to the same conclusion as the appeals court.

U.S. District Judge Raymond Moore summarized his decision as follows: "The Court finds that none of the named plaintiffs (be they political subdivisions, former or current elected officials, educators, citizens, or anything else) have standing to pursue this action."

Cynthia Coffman, the current Colorado attorney general, who inherited the battle from Suthers, released the following written statement about the ruling: "After six years of litigation, the federal court...entered an order that should put an end to this protracted and unproductive litigation. The district court’s order recognizes that this suit is an improper attempt to debate a public policy question through a federal lawsuit.... We hope the plaintiffs in this case will not appeal, given that my office has won victories in the Supreme Court, the Tenth Circuit Court of Appeals, and now the federal district court. The parties can certainly continue to oppose TABOR as a matter of policy and politics, but it’s long past time they gave up their frivolous lawsuit."

At this point, it's unclear if the Kerr team will raise the white flag or look for another way to take TABOR down once and for all. But if past is prelude, the fight isn't over yet.

Here's the aforementioned list of court actions involving Kerr v. Hickenlooper.

Principal pleadings, briefs and Orders of Court in Kerr v. Hickenlooper [in chronological order]

BEFORE THE U.S. DISTRICT COURT FOR COLORADO Civil Action No. 11-cv-1350-WJM-BNB

Original Complaint, filed May 23, 2011
Substituted Complaint, filed June 3, 2011
Defendant's Motion to Dismiss, filed August 15, 2011
Plaintiffs' Brief in Opposition to Motion to Dismiss, filed October 11, 2011
Defendant's Reply Brief, filed November 18, 2011
Plaintiffs' Motion for Oral Argument on Motion to Dismiss, filed November 27, 2011
Defendant's Brief in Opposition to Motion for Oral Argument, filed December 5, 2011
Order for Oral Argument on Motion to Dismiss, December 13, 2011
Order for Supplemental Briefing on Standing, February 17, 2012
Plaintiffs' Brief on Standing, filed March 16, 2012
Defendant's Brief on Standing, filed March 16, 2012
Motion for Leave to file Second Amended Complaint, filed March 28, 2012
Second Amended Complaint, filed March 28, 2012
Court Opinion & Order denying Motion to Dismiss as to most claims, filed July 30, 2012
Defendant's Answer to Complaint filed August 13, 2012

Pleadings and Orders Re Interlocutory Appeal under 28 USC 1292(b)

Defendant's Motion for Certification for Interlocutory Appeal under 28 USC 1292(b), filed August 10, 2012
Order for Response to Motion for Certification for Interlocutory Appeal, August 13, 2012
Plaintiffs' Brief in Response (Opposition) to Motion for Certification for Interlocutory Appeal, filed August 24, 2012
Defendant's Reply Brief in Support of Motion for Certification for Interlocutory Appeal, filed August 31, 2012
Court Order granting Motion for Certification entered September 21, 2012

ON REMAND TO THE U.S. DISTRICT COURT FOR COLORADO Civil Action No. 11-cv-1350-RM-NYW

Third Amended Substitute Complaint for Injunctive and Declaratory Relief, filed October 3, 2016, & Ex.A
Fourth Amended Substitute Complaint, filed December 6, 2016
Defendant's Motion to Dismiss, filed December 16, 2016
Plaintiffs' Brief in Opposition to Motion to Dismiss, filed February 14, 2017
Appendices to Brief in Opposition
Defendant's Reply Brief Supporting Motion, filed March 7, 2017

BEFORE THE U. S. COURT OF APPEALS FOR THE 10TH CIRCUIT

Defendant's 1292(b) Petition to U. S. Court of Appeals for 10th Circuit, filed September 28, 2012
Plaintiffs' Answer to 1292(b) Petition, filed October 12, 2012
Defendant's Reply to Answer, filed October 19, 2012
Order granting Petition, entered November 6, 2012
Governor's Opening Brief, filed February 1, 2013
Addenda to Governor's Opening Brief
Plaintiffs' Response to Governor's Opening Brief filed April 10, 2013
Governor's Reply Brief field May 13, 2013
Notice re oral argument set for September 23, 2013, at 9 AM
Plaintiffs' submission of supplemental authorities under Rule 28(j)
Defendant's response re supplemental authority
Defendant's submission of supplemental authority under Rule 28(j)
Plaintiffs' response re supplemental authority
Transcript of September 23, 2013, oral argument
Defendant's Second Citation of Supplemental Authorities, November 22, 2013
Plaintiffs' Response to Governor's Second Citation of Supp. Auth., December 16, 2013
10th Circuit Panel Decision Affirming District Court Denial of Defendant's Motion to Dismiss March 7, 2014
Defendant's Petition for Rehearing En Banc, April 4, 2014
Plaintiffs' Response to Petition for Rehearing en banc, May 7, 2014
10th Circuit Order Denying Petition for Rehearing, with Dissents, July 22, 2014

Pleadings and Orders on remand from Supreme Court

Briefing Order on Remand from Supreme Court, issued July 1, 2015
Order vacating prior judgment, per GVR Order of Supreme Court, issued August 3, 2015
Plainitffs'-Appellees' Opening Brief on Remand, July 31, 2015
Defendant-Appellant's Opening Brief on Remand, July 31, 2015
Defendant-Appellant's Response brief, filed August 20, 2015
Plaintiffs-Appellees' Response Brief, filed August 20, 2015
Order vacating prior judgment, denying standing for legislators, remanding to
District Court re standing of other plaintiffs, issued June 3, 2016
Plaintiffs-Appellees' Petition for Rehearing, filed July 8, 2016
10th Circuit Panel Order Denying Petition for Rehearing, July 19, 2016

BEFORE THE UNITED STATES SUPREME COURT NO. 14-460

Defendant/Petitioner's Petition for Writ of Certiorari filed October 17, 2014
Plaintiffs/Respondents' Brief in Opposition to Petition filed November 21, 2014
Defendant's Reply Brief, filed December 2, 2014
Order [GVR] Remanding to 10th Circuit, June 30, 2015

BY AMICI CURIAE before the District Court

Brief of Amicus Independence Institute on Motion to Dismiss, filed August 22, 2011
Brief of Amici Constitutional Law Professors on Motion to Dismiss, filed February 1, 2012

Before the Court of Appeals for the 10th Circuit

Brief of the Independence Inst. and the Cato Inst., filed February 8, 2013
Brief of D'Arcy Straub, pro se, filed February 8, 2013
Brief of Republican Legislators and Colorado Union of Taxpayers, filed February 11, 2013
Brief of NFIB, et al., filed February 12, 2013
Brief of Colorado Parent Teacher Association, filed April 17, 2013
Brief of Colo. Chpt. Amer. Ass'n of Pediatric Physicians & Colo. Nonprofits Ass'n, filed April 17, 2013
Brief of The Bell Policy Center & Colorado Fiscal Institute, filed April 17, 2013
Brief of Colo. Ass'n of School Bds. & Colo. Ass'n of School Execs., filed April 17, 2013
Appendix to CASB-CASE brief
Brief of the Center on Budget & Policy Priorities, filed April 17, 2013
Brief of Constitutional Law Professors, filed April 17, 2013
Brief of Amicus Colorado General Assembly, filed April 26, 2013

On remand from the Supreme Court

Brief of Colorado Union of Taxpayers and Republican Legislators, filed July 31, 2015
Brief of NFIB et al., filed July 31, 2015
Brief of States of Texas, Idaho, Indiana and Michigan, filed July 31, 2015
Brief of Center for Constitutional Jurisprudence, filed July 31, 2015

Before the United States Supreme Court No. 14-460

Brief of Cato Institute, filed November 20, 2014
Brief of Mountain States Legal Foundation et al., filed November 20, 2014
Brief of NFIB et al., filed November 20, 2014
Brief of Texas AG et al., filed November 20, 2014
Brief of Center for Constitutional Juris., et al., filed November 20, 2014