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Colorado Nonprofit Association Files Brief in TABOR Lawsuit

Jun 1, 2015


In May 2011, a bipartisan group of thirty-two persons – including current and former legislators and public officials educators and citizens -filed a lawsuit in U.S. District Court challenging the constitutionality of Colorado’s Taxpayer Bill of Rights (TABOR) amendment for undermining the “republican form of government” guaranteed under the Guarantee Clause of the U.S. Constitution and the Colorado State Constitution. This case is titled Kerr vs. Hickenlooper.

TABOR limits annual increases in state revenues and spending to the sum of growth in the rates of inflation plus population. Revenues in excess of the TABOR limit must be rebated to taxpayers. TABOR also requires a popular vote to approve any increases in rates of taxation in Colorado. Plaintiffs argue that TABOR requires the state to operate as a direct democracy by transferring the power to enact tax legislation from the Colorado General Assembly to Colorado’s voters. Because state legislators no longer have these fiscal powers, plaintiffs contend that  Colorado does not have a republican form of government.

In defense of the laws of Colorado, the Colorado Attorney General filed a motion to dismiss the lawsuit. Defendants argued that case of should be dismissed because the plaintiffs lack necessary legal standing to sue and the case raises political questions that must be resolved by legislators rather than the courts. The U.S. District Court ruling partially denied the motion to dismiss and affirmed that the plaintiffs have legal standing and presented a justiciable question in the claim.

The Attorney General appealed the ruling to the  10th Circuit Court of Appeals. However, the 10th Circuit denied the appeal and upheld the U.S. District Court’s ruling. The Attorney General asked the U.S. Supreme Court to review the ruling by petitioning for a writ of certiorari  in October 2014.

On June 30, 2015, the Supreme Court remanded the lawsuit challenging the Taxpayer’s Bill of Rights (TABOR) amendment to the 10th Circuit Federal Court of Appeals for further consideration in light of the court’s recent ruling in the case of Arizona State Legislature v. Arizona Independent Redistricting Commission. In the Arizona case, the Court considered whether the state legislature has the legal standing to challenge a citizens’ initiative transferring authority over Congressional redistricting to an independent commission.

After reviewing the case of Arizona State Legislature v. Arizona Independent Redistricting Commission the 10th Circuit Federal Court reversed its original ruling which affirmed the district court’s ruling that individual legislators had standing. The Arizona Court distinguished individual legislators from a legislature as a whole for claims challenging a legislature’s power. The 10th Circuit Federal Court concluded that the individual legislators lacked standing because they asserted only an institutional injury (in other words there were not enough legislative plaintiffs to constitute an institution). The Court vacated the district court’s certified order and remanded for a determination of whether the non-legislator plaintiffs possess standing.

This webpage will be updated periodically with key developments in the case.

Amicus Brief

On April 17 2013,, lawyers representing Colorado Nonprofit Association  filed a “friend of the court” brief with the United States Court of Appeals for the 10thCircuit, supporting the position of the plaintiffs in a lawsuit challenging the constitutionality of the Colorado Taxpayer Bill of Rights (TABOR).

The case, Kerr v. Hickenlooper, is before the 10th Circuit on an extraordinary appeal from a ruling last July by U.S. District Judge William J. Martinez in which he denied a motion to dismiss the case filed by Attorney General John Suthers on behalf of defendant Governor Hickenlooper.

The plaintiffs are a bipartisan group of thirty-two persons, including legislators, other current and former state and local officials, educators and citizens. Their suit argues that TABOR violates provisions of the U.S. Constitution and federal statute requiring Colorado to maintain a “republican form of government,” including a state legislature with the core fiscal powers needed to fulfill its responsibility to meet critical public needs. State Senator Andy Kerr is the named lead plaintiff.

The brief by pro bono counsel representing Colorado Nonprofit Association and the Colorado Chapter of the Academy of Pediatrics is focused on the question of whether the federal statute in question provides an independent basis to decide the case.

“Colorado Nonprofit Association opposed the TABOR amendment on the 1992 ballot.  Since then, TABOR has undermined the ability of Colorado nonprofits to meet current demands for services and respond to future changes in economic conditions, population growth, and the costs of delivering public services.”

“We appreciate very much the generous contribution of the lawyers at Haddon Morgan and Foreman who have donated their professional services in writing our brief. Combined with friend of court briefs being submitted by eight other state and national groups, we hope to give the 10th Circuit a comprehensive understanding of the merits and significance of this litigation,” said Renny Fagan, President and CEO.

Other organizations who have submitted briefs on other topics before the Court include: the Colorado PTA; the Colorado Association of School Boards; the Colorado Association of School Executives; The Bell Policy Center; the Colorado Fiscal Institute; the Center for Budget & Policy Priorities (Washington, DC); the Colorado General Assembly; and a group of distinguished professors of constitutional law.

A copy of Colorado Nonprofit Association’s brief is posted at