Backers of a proposed initiative to repeal the Taxpayer's Bill of Rights can go forward with their efforts to place the measure on a future ballot, the Colorado Supreme Court ruled Monday.
The ballot measure, known as Initiative 3, is the brainchild of the Colorado Fiscal Institute.
TABOR is a constitutional amendment, approved by voters in 1992, that requires voter approval for new taxes and debt. TABOR also restricts local and state governments from spending revenues collected under existing tax rates without voter approval, if revenues grow faster than the rate of inflation and population growth.
Monday's ruling is a victory for TABOR critics. Should backers of the measure succeed in gathering the 124,632 signatures needed to place it on the statewide ballot, it would be the first time voters have been asked to repeal the TABOR amendment.
Last February, the state's three-member Initiative Title Setting Review Board denied the ballot measure, claiming it violated the Colorado constitution's provision -- approved by voters in 1994 -- limiting ballot measures to a single subject. The Title Board is made up of attorneys from the Secretary of State's Office, Legislative Legal Services and the Attorney General's Office.
In its 5-2 ruling on Monday, however, the state's highest court disagreed and overruled the Title Board.
Prior decisions, the court pointed out, have stated that if a constitutional provision contains multiple subjects and a ballot measure seeks to repeal the entire "underlying provision," the initiative contains multiple subjects and is hence not legal.
However, the majority opinion in this case, written by Justice Richard Gabriel, said the proposed initiative has "one and only one general objective or purpose, namely, the repeal of TABOR. It does not treat incongruous subjects in the same measure, and its subject matter is necessarily and properly connected."
"The initiative could not be written more simply or directly," the opinion adds. "It essentially asks voters a single question: Should TABOR be repealed in full?"
In addition, the opinion stated, "we perceive nothing in Initiative #3 that could be deemed to be surreptitious or hidden in the measure," another reason for determining if a measure follows the single-subject rule.
Justice Monica Marquez, in a dissent joined by Justice Brian Boatright, said the majority opinion "defies logic, the constitution, and decades of this court's case law."
Christopher Jackson, an attorney with Denver law firm Sherman & Howard, told Colorado Politics on Monday that the court is claiming it is not bound in this instance by previous decisions on the single-subject rule.
On this decision, Jackson said, the court is focused on just one ballot measure, although someone in the future is likely to challenge the single-subject rule again, using the court's Monday ruling.
In a statement, Carol Hedges, executive director of the Colorado Fiscal Institute, said that "in answering this important question today, the Colorado Supreme Court has given voters additional options for addressing the fiscal challenges the state faces.
"Today's opinion clarifies voters' role in making changes to their state constitution," Hedges added. "I'm thrilled that those options include a full repeal of a provision that has made Colorado an outlier on state tax policy for nearly 30 years."
Hedges said the ruling "provides a new wrinkle in ongoing community-led conversations regarding inequities in our constitutional tax system. Our ability to keep Colorado an awesome place to live, work and play starts and ends with fixing our upside-down tax code, and we now have an important new tool to fix the problem."
TABOR author Douglas Bruce told Colorado Politics that the Colorado Supreme Court, in a quarter century, has only ruled in favor of TABOR once. That one ruling was in the 1996 decision on the single-subject rule.
The judges have now now reversed themselves, Bruce said, calling the decision an act of "intellectual dishonesty" that pulled "the rug out from under the three attorneys [on the Title Board] who know the single-subject rule better than anyone else."
Bruce claimed that "someone got to" the state court, given that both houses of the General Assembly are controlled by Democrats. The court doesn't have to do anything to placate fiscal conservatives, he said.
"The law hasn't changed, and the single-subject rule hasn't been rewritten in the past 23 years," Bruce said, calling the court's members "the worst example of activist judges that you can imagine."
Among opponents of efforts to change TABOR, Jesse Mallory of Americans for Prosperity Colorado said Monday that "politicians and big government organizations have been calling for an end to the Taxpayer’s Bill of Rights for years. Now they get their chance to try to convince the people of Colorado that they don’t deserve to vote on tax increases — a right AFP firmly believes Coloradans should have. Every elected official in Colorado will have the opportunity to publicly state which side they fall on.”
Gov. Jared Polis said after the Supreme Court ruling that he opposed repealing TABOR outright, saying in a Colorado Public Radio interview that “I strongly support the right of voters to be able to vote on tax increases," as TABOR requires.
Instead, Polis said he favored addressing various constitutional provisions governing state finances as a whole, including TABOR as well as the Gallagher Amendment dealing with property taxes and Amendment 23 addressing school finances. He said a group of business and community leaders are working to develop a strategy to reform these provisions.
The initiative now goes back to the Title Board to resume the process for putting it on the ballot, including setting a ballot title. After that, if backers chose to continue with the initiative, they would begin to circulate petitions to try to place it on the ballot.
The measure could show up on the ballot as soon as this year, although it's just one of many constitutional reform measures being considered by the Colorado Fiscal Institute, some of which it may decide not to pursue.
Elliot Goldbaum, Colorado Fiscal Institute spokeman, said the ballot measure would require only 50% plus one voter approval rather than the 55% set in Amendment 71 back in 2016, which set 55% voter approval for additions to the state constitution. That's because the measure would remove something from the constitution, not add to it, he said.
Separately, lawmakers this year passed a bill placing a different measure on the fall 2019 ballot, Proposition CC, that would allow the state to spend excess revenue that otherwise would have to be refunded under TABOR, but which stops short of full repeal of the amendment.
Polis told CPR he was "supportive of the concept" of Proposition CC, but added that it wouldn't help the state in years when it doesn't have a revenue surplus.
About 90% of requests by local governments to "de-Bruce" -- the process of bypassing TABOR requirements, named for Douglas Bruce -- have passed, meaning they can spend all the revenues they collect without voter approval.