Federal judge allows suit over Colo. TABOR to move forward

Jessica M. Karmasek Jul. 31, 2012, 1:12pm



DENVER (Legal Newsline) - In an order Monday, a federal judge allowed a legal challenge to Colorado's Taxpayer's Bill of Rights, or TABOR, to proceed.

In his 73-page ruling, Judge William J. Martinez of the U.S. District Court for the District of Colorado said the plaintiffs in the case -- mostly Democrats and current members of the state's General Assembly -- have standing to bring the lawsuit.

In their suit, in which Gov. John Hickenlooper is the named defendant, the lawmakers challenge the constitutionality and legality of TABOR, an amendment to the state constitution passed by voter initiative in 1992.

Among other provisions, TABOR prohibits the General Assembly from increasing tax rates or imposing new taxes without voter approval.

The plaintiffs allege that, by taking away the General Assembly's power to tax, TABOR violates Colorado's constitutional and statutory obligations to maintain a republican form of government.

Attorney General John Suthers, who represented Hickenlooper in the case, filed a motion to dismiss the suit.

He argued that the plaintiffs lack standing to bring the action, that their claims present "non-justifiable political questions" and that their Equal Protection claim and "impermissible amendment claim" are independently subject to dismissal.

In his ruling this week, Martinez granted in part and denied in part Hickenlooper's motion to dismiss.

The judge held that the plaintiffs can sue and that their claims are not barred by the political question doctrine.

"The court finds that the injury alleged here is of greater magnitude than the single instance of vote nullification in Coleman," Martinez wrote.

However, the judge ruled that the lawmakers failed to state an Equal Protection claim.

But their impermissible amendment claim is not subject to dismissal, he said.

"Therefore, the court will allow this action to proceed past the pleading stage on all claims except for the Equal Protection claim," Martinez concluded.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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