The National Federation of Independent Business (NFIB), Friday, Nov. 21, formally asked the U.S. Supreme Court to take up a Colorado case that has implications for taxpayers in all 50 states, according to a news release sent Monday by the NFIB.
At stake in Kerr v. Hickenlooper, according to the amici curiae brief filed by NFIB and its 19 coalition partners, is the right of voters in 27 states to make or change law through the initiative or referenda process, the release said.
Attorneys representing plaintiffs in the challenge to the constitutionality of Colorado’s Taxpayer Bill of Rights (TABOR) also filed with the U.S. Supreme Court a brief opposing the governor’s petition for review of a March 2014 decision by the U.S. Court of Appeals for the Tenth Circuit, according to a news release sent by the plaintiffs. That decision upheld a July 2012 decision of the U.S. District Court of Colorado denying the governor’s motion to dismiss the case on procedural grounds.
The governor has requested a review of the preliminary procedural issues before the case is heard on its merits. The request was filed Oct. 17.
The Supreme Court is expected to act on the governor’s petition early next year, said C.L. Harmer, who wrote the plaintiffs’ news release. A decision to grant review would require a positive vote from four of the nine justices.
If the Supreme Court accepts the state, both sides would prepare briefs on the procedural issues decided by the Tenth Circuit Court and oral argument would be scheduled some months later, Harmer said.
“Our concern is that this case could open the door for litigants to challenge basic state constitutional protections for citizen taxpayers,” said Luke Wake, senior staff attorney for NFIB’s Small Business Legal Center. “Not only does it call into question every initiative or referenda, but it also invites legal challenges to fiscal restraints, which are nearly ubiquitous throughout the 50 states.”
At issue is whether TABOR violates the U.S. Constitution. Plaintiffs argue that by allowing voters the final say on new or higher taxes, the state is depriving residents of the “republican form of government,” as guaranteed by the U.S. Constitution, the NFIB release said.
“Their reasoning is bizarre,” said Wake about the plaintiffs in the case. “They’re arguing that the citizens of Colorado, by exercising their right of self-governance, have somehow rendered Colorado anti-republican because the people have imposed constitutional restraints on their government. The theory would call into question all state constitutional restraints on legislative powers.
“Make no mistake, this assault on TABOR is purely political. The plaintiffs want to strike down TABOR’s requirement for democratic assent to new or increased taxes because they think it stands in the way of their ideological goals. It’s much harder to persuade or cajole voters to raise their own taxes. TABOR is a major speed bump on the way to higher taxes, so they want it removed,” Wake said.