DENVER — The Colorado Title Board rejected a proposal on Wednesday to put a full repeal of the Taxpayer’s Bill of Rights (TABOR) before voters in a future election.
The board voted 3-0 that the proposal violated the single subject rule and the board did not have jurisdiction to set a ballot title.
Proponents Carol Hedges and Steve Briggs had an initial hearing before the Title Board at 1 p.m. on Wednesday. Although voters several years ago passed new rules that make adding an amendment to Colorado’s constitution harder, it still only takes a simple majority to repeal an amendment.
Denver-based attorney Edward Ramey, who represented the proponents, said the proposal was to do “one thing and one thing only.”
“That’s to repeal Article X, Section 20 of the Constitution,” Ramey told the board. “I emphasize that because we’re not adding anything to it. We’re not trying to tweak anything. We’re not repealing and ellipsis doing anything. This is just a straight repeal.”
Ramey said the single subject debate keeps coming up because the consensus is TABOR itself contains more than one subject, but he disagreed with those findings. He cited a couple of Colorado Supreme Court rulings that addressed the subject in a manner that he believed favored his clients in this case.
One is from 1996 that repealed TABOR but then re-enacted pieces of it. The Court then ruled 4-3 that it violated the single subject rule. However, Ramey said a concurring opinion by the minority is critical to his clients’ proposal today.
Soon to be Colorado Supreme Court Chief Justice Mary Mullarkey said then in her dissent from the ruling that the threshold question was not addressed by the majority in their opinion. That question was “whether the single subject requirement applies to an appeal.”
“The thrust of her entire discussion that two other justices concurred with, and the four did not comment upon was if we’re doing nothing but a straight repeal, it would not violate the single subject requirement,” Ramey said.
He said all cases that he was aware of all wanted to do something more, rather than just a straight repeal.
“They do something additional, which is what triggers the single subject issue,” Ramey said. “Not once, to my knowledge, has the court ever decided the question of whether a straight repeal would or would not violate the single subject requirement.”
Ramey stated the single subject in repealing TABOR would read: “Removing impediments to the legislature’s and local governments’ ability to determine fiscal policy.”
Board member Jason Gelender, who represents the Office of Legislative Legal Services, pointed out that the Colorado Supreme Court had ruled unanimously in another case that TABOR was not subject to the single subject rule and, therefore, contained multiple subjects when voters passed it.
“We are bound … to apply judicial decisions as we have them,” Gelender said. “I’m hard pressed to find that this judicial decision, the majority in (Ramey’s example) and the previous decision (in Gelender’s example) don’t control this and say that we do not have jurisdiction to set a title on this.”
Board member LeeAnn Morrill, who represented the Attorney General’s office, cited yet another example of a Supreme Court decision in a 2002 proposal that included a provision that asked to prevent the complete repeal of TABOR. She pointed out that the court stated in its decision:
“Moreover, an amendment to the Colorado Constitution which prevents the repeal of TABOR, itself, constitutes multiple subjects … TABOR contains multiple subjects … If a constitutional provision contains multiple subjects, and an initiative proposes to repeal the entire underlying provision, then the initiative contains multiple subjects.”
Ramey said it was likely his clients would file for a rehearing, which is due in seven days.
Michael Fields, Executive Director of Colorado Rising Action, said he was pleased the board voted unanimously against the proposal.
“Thankfully this outrageous attempt to repeal the people’s right to vote on tax increases has been stopped in its tracks,” Fields said. “But the battle isn’t over. Even though the Taxpayer’s Bill of Rights is more popular than ever in Colorado, we know that liberal groups want government to have a blank check to enact their extreme programs and they’ll continue to attempt to circumvent the law.”