Colorado could be sued over tax and spending limits
August 3, 2009
DENVER – A lawyer with experience both suing and representing the federal government plans to sue Colorado in federal court to try to overturn the state’s tax and spending limits.
The state’s Taxpayer’s Bill of Rights, a constitutional amendment passed by voters in 1992, limits the amount of taxes the government can take in to a formula based on population growth plus inflation. It also requires any tax increases to be approved by voters.
Herbert Fenster said Monday he plans to file the lawsuit in late September. He said that TABOR has weakened the Legislature so much by taking away its ability to tax that the law has deprived Colorado of the republican, or representative, form of government the U.S. Constitution guarantees for each state.
“Without the power to tax, many of the things a legislature can and should do, it can’t do,” said Fenster, who practices in Colorado and Washington, D.C.
Fenster, a Republican who wants more state funding for higher education, said he would file the lawsuit on behalf of four state lawmakers, but he wouldn’t name them.
House Minority Leader Mike May, a TABOR supporter, said he thought the suit was “much ado about wackiness” but that it still would force the state to spend money to defend TABOR at a time it’s cutting millions from its budget.
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May compared Fenster’s arguments to those from people who believe the Constitution bars individual income taxes.
“But it’s not going away, and the same with TABOR. At least not in the courts,” said May, R-Parker.
Fenster said he won’t try to overturn Amendment 23, a constitutional amendment passed after TABOR that requires that school funding increase each year regardless of the economy. He said such “Band-Aids” passed in reaction to TABOR won’t be necessary if his suit succeeds, although the law would remain on the books.
Fenster testified last week before a committee of state lawmakers and others who are looking at Colorado’s budget laws and tax breaks. He argued that lawmakers should privatize the University of Colorado-Boulder because they’ve been unable to fund the state’s flagship university on par with other states.
Fenster, who has been a lawyer for 48 years, said he worked as litigation counsel for the Reagan-Bush campaign committee.
He also said he was part of a team of lawyers who helped obtain a $3.9 billion judgment against the federal government in 1998 in a case involving a classified aircraft for the military. He also represented the interior secretary in Indian trust litigation.