The Second Trip to the Colorado Supreme Court

No other state has a provision in its constitution like the Colorado Taxpayer Bill of Rights (“TABOR”). The TABOR measure amended Article X of the state’s constitution and restricts tax revenues and spending at all levels of government. The provision prevents tax increases without voter approval and prohibits state and local government from spending revenues collected under existing tax rates without voter approval if revenues grow faster that the rate of inflation and population growth. Tax revenues in excess of the TABOR limit must be refunded to taxpayers. The impact of the provision has been significant. Since 1992, tax authorities have refunded over $2 billion to the taxpayers.

In the most recent attempt to repeal TABOR, proponents of a ballot initiative for the general election on November 3, 2020 were required to submit a “title” and summary “abstract” to the Title Board for approval. On its first trip to the Supreme Court, petitioners challenged the decision of the Title Board that held that the “title” did not address a “single subject.” On June 17, 2019, the Colorado Supreme Court rejected that ruling and remanded the matter to the Title Board for further action. See In re Title, Ballot Title & Submission Clause for 2019–2020 #3, 2019 CO 57, ¶ 40, 442 P.3d 867, 873.

On remand, the Title Board conducted a hearing and established a ballot title and submission clause for the Proposed Initiative. The approved title reads: “An amendment to the Colorado constitution concerning the repeal of the Taxpayer’s Bill of Rights (TABOR), Article X, Section 20 of the Colorado constitution.” The approved abstract provides:

The measure is expected to increase revenue and spending for state and local governments over the long term, shifting a portion of the state’s economy from the private sector to the public sector. If government spending for public goods and services, including for example health care, education, social services, infrastructure, and public safety, increases, as expected, household and business spending or saving will be correspondingly reduced.

On December 23, 2019, the Supreme Court again addressed challenges to the initiative. Petitioners [including Douglas Bruce who is credited with authoring the TABOR provisions in 1992] asked the Supreme Court to determine whether (1) the title is clear and not misleading; (2) the use of the phrase “Taxpayer’s Bill of Rights” in the title constitutes an impermissible catch phrase; and (3) the abstract is misleading. See 2019 CO 107 No. 19SA183, In re Proposed Ballot Initiative 2019–2020 #3 “State Fiscal Policy.”

In sum, the court concluded that the title and abstract are clear and not misleading and that the phrase “Taxpayer’s Bill of Rights,” as used in this title, is not an impermissible catch phrase.