10th Circuit Revives TABOR Challenge

The full court will vacate and review the case

The 10th Circuit Court of Appeals building in Denver, also known as the Byron White building.

The 10th Circuit Court of Appeals on Wednesday granted en banc review of a case that could nullify the Taxpayer’s Bill of Rights. 

The case, filed in 2011 by several state legislators and other plaintiffs, seeks to invalidate TABOR, the state which requires voter approval for increases in state tax rates. 

Plaintiffs say the amendment violates the U.S. Constitution’s republican form of government clause by shifting power from the legislature to voters.

The case has had a long history, including a trip to the U.S. Supreme Court. Throughout that nearly decade-long odyssey, both the federal district court in Denver and the 10th Circuit have wrestled with the question of standing. 

The 10th Circuit previously ruled the legislator plaintiffs lacked standing “because they were asserting an institutional injury” and sent the case back to district court, where more governmental plaintiffs joined on. 

The district court dismissed the case despite the intervention of the additional plaintiffs. That decision was overturned by the 10th Circuit, which ruled that the district court could not properly reach its conclusion at the particular stage of litigation before it.

In September 2019 Colorado Attorney General Phil Weiser asked  the full court to reconsider the decision in Kerr v. Polis. At that time, Weiser said in a statement that the 10th Circuit’s decision contradicted other rulings that had emphasized the limits on federal court jurisdiction. Those cases, Weiser maintained, held that courts are not the place for government plaintiffs to “resolve disagreements with their parent state over state policy.” 

“The July [2019] opinion from the 10th Circuit conflicts with controlling law, past 10th Circuit decisions, and recent U.S. Supreme Court decisions,” the statement went on to say. “A rehearing of the full court is necessary to secure and maintain uniformity of the Court’s

The 10th Circuit Court of Appeals will rehear the case en banc, with judges Scott Matheson and Joel Carson recused, and will ask the parties to address issues of standing: Is political subdivision standing a threshold jurisdictional limitation and what does political subdivision standing require?

The government parties that brought the initial case have not yet filed briefs in response to the en banc order. Nor has the court set a date for oral argument. 

The decision also comes just ahead of two other tax-related ballot measures. One of  them asks voters whether to repeal the Gallagher Amendment — a 1982 change to the state constitution that allocates the obligation for paying property taxes among commercial and residential property owners — and the other  would extend TABOR by requiring voter approval for fees assessed by government enterprises. 

— Tony Flesor

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