This story was produced as part of the Colorado Capitol News Alliance. It first appeared at coloradosun.com.
Colorado taxpayers may foot the bill twice if Democratic lawmakers manage to pass a resolution directing the legislature to sue the state in an attempt to invalidate the Taxpayer’s Bill of Rights.
That’s because not only will taxpayers likely be responsible for paying the lawyers hired by the legislature to bring the case, but they’ll also be on the hook for the costs incurred by the Colorado Attorney General’s Office to defend against the legal challenge to TABOR, a constitutional amendment voters approved in 1992.
If House Joint Resolution 25-1023 passes as expected, the General Assembly’s nonpartisan Office of Legislative Legal Services would likely hire a group of attorneys to file the lawsuit. In the past, the legislature’s third-party legal bills in much smaller cases have cost taxpayers tens of thousands of dollars.
The last major lawsuit challenging TABOR, which was unsuccessful, took 10 years to litigate and cost the state hundreds of thousands of dollars before adjustments for inflation.
State Rep. Sean Camacho, a Denver Democrat and a lead sponsor of the resolution, said there’s a chance an attorney or group of lawyers may offer to represent the legislature for free given the high-profile nature of the case. There don’t appear to be rules prohibiting the General Assembly from accepting pro bono representation.
“There are probably some attorneys in town that would want to do this pro bono,” said Camacho, a lawyer. “We don’t know yet.”
While the legislature can and almost certainly will get representation from third-party lawyers, the Colorado Attorney General’s Office is charged with defending the state constitution and state law. The office employs a battalion of lawyers who would defend TABOR, work that will defer resources that could have been dedicated to other matters.
Colorado Attorney General Phil Weiser, a Democrat, personally opposes TABOR, but has vowed to defend it as part of his oath to uphold the rule of law. He is term-limited, however, and will leave office in early 2027.
One of the biggest reasons Democrats haven’t asked voters to repeal TABOR, which requires voter approval for tax increases and limits the growth of government, is the cost. Signature gathering alone for such an attempt would likely cost upward of $2 million.
That’s a major investment given that voters have repeatedly rejected statewide ballot initiatives seeking to roll back parts of TABOR — Proposition CC failed in 2019 and Proposition HH failed in 2021 — and polling has shown the amendment remains popular.
The lawsuit, alleging that TABOR violates the U.S. Constitution, would essentially force taxpayers to pay for an effort to dismantle TABOR.
Camacho defended the potential taxpayer burden of the lawsuit, saying it is the legislature’s responsibility to ensure the state is following the law.
“Our No. 1 job is to protect and follow the law and protect and follow the Constitution,” he said. “I think there is an open question on whether or not TABOR is constitutional. I think we all deserve an answer.”
State Rep. Lorena Garcia, an Adams County Democrat and another lead sponsor of the resolution, also rejected the notion that Democrats were simply trying to get taxpayers to cover the tab so that progressive groups and donors don't have to foot the cost of trying to overturn TABOR through the ballot box.
She likened the lawsuit, paired with other efforts to roll back TABOR, to throwing a bunch of spaghetti at a wall to see what sticks. It’s worth trying, she said, because of the effects of TABOR’s constraints on the state budget.
For instance, the legislature this year was forced to cut about $1.2 billion from its spending plans in large part because of TABOR. The state could have collected enough tax revenue to cover the gap, but it wouldn’t have been allowed to keep the dollars because of TABOR’s limits on government growth.
Capitol Republicans are expected to uniformly oppose the resolution. But Democrats have large advantages in the House and Senate, and the measure only needs a simple majority of support in each chamber to pass.
However, the statehouse GOP can — and will, if it’s introduced — block passage of another resolution planned by Garcia that would refer a measure to the November ballot imposing a graduated, or progressive, income tax rate in Colorado. That would need a supermajority of support in each chamber to pass, which Democrats don’t have.
An unusual case
The Colorado Sun couldn’t find another example of the Colorado legislature suing the state.
In general, legal experts say it's highly unusual for a branch of government to sue over perceived restrictions on its power. Typically, branches of government are sued by people who think they've overstepped.
It has happened, however, in other parts of the country.
The Republican-controlled Arizona legislature sued in 2012 to challenge the ability of the state’s independent redistricting commission to draw congressional districts, arguing that the U.S. Constitution granted that ability only to state legislatures.
The case made its way to the U.S. Supreme Court, which rejected the legislature’s claims.
The lawsuit cost taxpayers at least $1.5 million to argue and defend. Adjusted for inflation, that amount is certainly higher. (TABOR’s effect on state finances is in the billions of dollars.)
The last major legal challenge to TABOR was launched in 2011, when then-state Rep. Andy Kerr, a Democrat, partnered with a group of current and former elected officials — some of them Republican — to challenge the amendment on similar legal grounds.
The case took a decade to wind through the courts before it was eventually dismissed in 2021 by the 10th U.S. Circuit Court of Appeals, which ruled the plaintiffs had failed to show that TABOR violated Colorado’s ability to operate a republican form of government. The decision had to do with how TABOR affected the plaintiffs, which, in addition to a host of individual state lawmakers, included school districts, county commissions and special districts.
The case never advanced to the U.S. Supreme Court, which in 2015 rejected then-Gov. John Hickenlooper’s request that it hear the case.
The Colorado Attorney General’s Office said the cost to defend against the Kerr case was $500,000 over a decade. That represents the hours the office’s lawyers spent on the lawsuit. Adjusted for inflation, the amount would be higher.
Additionally, the Kerr case never entered the discovery phase, which would have exponentially increased the legal costs.
Camacho, who worked on the Kerr case pro bono as a junior attorney long before he was a lawmaker, thinks the General Assembly will have a better case — even as they plan to keep the same republican government argument.
“We have the powers that TABOR is taking away,” he said. “TABOR has been around for 30 years for a reason — because there was never the right plaintiff to actually take up the fight and get an answer on whether or not it is actually constitutional.”
He’s also hopeful that the legislature’s lawsuit will take less time to litigate since standing issues may not be the same kind of hindrance they were in the Kerr case.
Eric Olson, who was Colorado’s solicitor general under Weiser in charge of defending TABOR when the Kerr case was decided by the 10th Circuit, is skeptical the legislature’s case will succeed. First off, he thinks the General Assembly may fail to prove it has standing to sue.
“I think TABOR is terrible for Colorado, particularly as it relates to education,” said Olson, who is now in private practice and works on high-profile Democratic causes and legal issues. “But that doesn't mean the normal rules of repealing laws we don’t like don’t apply.”
Olson said Colorado courts are very reluctant to disturb election results, “particularly when TABOR has been on the ballot so many times.” Voters rejected efforts to eliminate TABOR’s cap on statewide government growth and spending in 2019 and 2023.
Attorney Sarah Mercer, who led the Kerr lawsuit, still thinks TABOR is ripe for challenge. And she thinks the legislature has standing to sue.
“While other states may limit their state legislatures' authority to increase taxes or to spend revenue beyond a certain amount, Colorado is the only state whose legislature has no authority to increase any taxes and cannot spend revenue in excess of TABOR's strict formula,” said Mercer, who works at Brownstein Hyatt Farber Schreck. “The U.S. Supreme Court’s ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission clarified that the entire state legislature, as opposed to individual state legislators, would be the proper plaintiff to bring a case on this issue.”
She added that the 10th Circuit ruled that the “heart of this issue is justiciable, meaning it is an issue that a court can resolve.”
House Joint Resolution 1023 cleared the House Finance Committee on Monday by a 7-6 vote mostly along party lines. It next will be debated before the full House.