MSLF Brief in Kerr V. Polis Highlights the Hypocrisy of the Politician-Plaintiffs

Denver — December 23, 2020 — Mountain States Legal Foundation on Monday argued that legislators, county commissions, school districts, and a special district board suing to overturn Colorado’s voter-approved Taxpayer’s Bill of Rights (TABOR) lack the legal “standing” to bring the challenge. MSLF filed an amicus curiae brief with the Tenth Circuit Court of Appeals, sitting en banc, on behalf of itself, the Colorado Union of Taxpayers, and the TABOR Foundation. 

The Court, in an earlier iteration of the case, already determined that Colorado legislators lacked standing to bring this case. But rather than accept defeat, the plaintiffs added county commissions, school districts, and special district board, known as “political subdivisions,” to try and salvage their case. 

These Political Subdivisions continue to advance the argument that the spending and taxing restraints imposed by TABOR deprive them of the republican form of government they believe they’re guaranteed under law.   

There’s one key problem with their argument.  A republican form of government is guaranteed to the people of Colorado, not to politicians, and not to any political subdivisions of the state. This lawsuit is nothing more than a “hail mary” attempt to overturn a law that they may hate but that many Coloradans still support.  

Worse, the Political Subdivisions fail to prove that a republican form of government requires a government, or political subdivisions, to have the power to tax. Nothing in the United States’ or Colorado’s founding precedent support that argument. 

In 1992, Colorado voters adopted by initiative TABOR, limiting the power of the General Assembly to levy new taxes or increase tax rates without voter approval. In early 2011, various state legislators and other Colorado government officials and citizens initiated this  suit in federal district court against then-Colorado Governor, John Hickenlooper. Fast forward 9 years to late 2020, and now, the Tenth Circuit Court of Appeals has granting en banc review—meaning the entire Tenth Circuit will hear the case—to determine if the political subdivisions have standing to bring that same challenge against now-Colorado Governor, Jared Polis.   

MSLF’s brief highlights the hypocrisy of those who brought the suit.  

“The politicians who initiated this case and now the political subdivisions that continue to pursue it believe they know better than the people of Colorado and seek to weaponize a right guaranteed to the people of Colorado—via the Guarantee Clause, the Enabling Act, and the Colorado Constitution—against the people,” says Cody J. Wisniewski, the lead attorney on the case. “What could be less of a republican form of government than a political subdivision suing its creating state to override a constitutional amendment that was enacted by a popular vote of the people? If government officials are concerned about TABOR’s effects, they should appeal to the people, from which the government derives its power and authority, not to the federal judiciary.” 

The filing can be read by following this link.

A case summary can be found by following this link.

Please contact Sean Paige at 719-337-0355 if you have questions.