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Appeals Court Panel Considers TABOR Challenge

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(credit: iStock)

(credit: iStock)

DENVER (AP) – Colorado is asking the federal courts to stay out of a dispute about whether its strict tax and spending limits has robbed the state of a republican form of government.

In arguments Monday, state Solicitor General Daniel Domenico told a three-judge panel of the 10th U.S. Circuit Court of Appeals that lawmakers still have the ability to ask voters to approve a tax increase if they think one is needed under the Taxpayer’s Bill of Rights.

“Just because it’s a little bit harder doesn’t make it unrepublican,” he said of the referendum needed to raise taxes under TABOR.

Domenico said that if lawmakers tried and failed to win a tax increase, they might have a case. But he also argued that courts haven’t gotten involved in enforcing the provision in the U.S. Constitution guaranteeing a republic – or representative democracy – to the states, leaving that to Congress instead.

He cited a 1912 decision in which the U.S. Supreme Court said it was up to Congress, not the courts, to decide whether the initiative process adopted in Oregon during the Progressive Era was unrepublican. The court has gotten involved on redistricting issues, however.

David Skaggs, the former Democratic congressman representing current and former lawmakers challenging the law, said having the ability to raise taxes is a key part of a legislature’s power and that direct democracy was something the founding fathers were extremely distrustful of.

“Without the power to tax there is no effective government,” he said.

Voters passed TABOR in 1992 under the initiative process. Unlike the 1912 case, Skaggs said the lawmakers are challenging only what TABOR does, not the initiative process itself.

Besides votes on tax hikes, TABOR also restricts state and local government revenues from growing by more than inflation plus population growth without voter approval.

Under TABOR, lawmakers have been reluctant to ask voters to raise taxes, often opting instead to raise fees that don’t require approval. In 2005, lawmakers asked voters to suspend the revenue limit from 2006 to 2010 to help the state recover from a drop in revenue during the previous recession, and voters agreed.

Former Republican Sen. Norma Anderson, one of the plaintiffs, said TABOR prevents lawmakers from reacting to the state’s immediate needs. If the state needs to raise more money to pay for repairs from flooding, she said it’s too late to ask voters in November to approve a tax hike.

“Our form of government is still the best in the world, and it’s been taken away from us in Colorado,” Anderson said after the hearing.

In July 2012, U.S. District Court Judge William J. Martinez rejected a motion from Attorney General John Suthers, on behalf of Gov. John Hickenlooper, to throw out the case, leading the state to appeal to the 10th Circuit.

A ruling isn’t expected for several months.

- By Colleen Slevin, AP Writer

(© Copyright 2013 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.)

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