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Nicolais: IT’S ALIVE! Colorado’s undead TABOR lawsuit lurches forward

The absurd history of case against TABOR seems as ridiculous as Mel Brooks classic

Colorado’s Frankenstein case against TABOR, Kerr v. Hickenlooper, rose from the dead — again — earlier this week.

After a panel of the 10th U.S. Circuit Court of Appeals found several plaintiffs had proper standing, the case seems posed to lurch back into federal court

Or not.

Mario Nicolais

Either way, the case has officially taken a turn from the classic Mary Shelley horror story into the patent absurdity of Mel Brooks’ parody Young Frankenstein.

While TABOR architect Douglas Bruce may lack Gene Wilder’s perfect timing and comedic genius, nobody in Colorado politics has more carefully hued to the eccentric mad scientist role. From kicking a news photographer during the state House’s morning prayer to a conviction for tax evasion, Bruce’s antics have always detracted from his brilliance. Even as a judge sentenced him to jail, Bruce proclaimed, “If you want to put me in a cell, do you think that will break me? I’m not going to be brokenDestiny! Destiny! No escaping that for me!

At least he could have, and it wouldn’t have surprised a single political observer in Colorado. While the first half is all Bruce, the second clause came straight from Brooks’ mind and Wilder’s mouth.

In opposition to Dr. Brucenstein stands the pitch-forked village mob composed of plaintiffs from both parties. In this metaphor that makes former state Rep. and Sen. Andy Kerr, both my friend and one-time political rival, the rabble-rousing, mechanical-arm toting, monocle over eyepatch-wearing Inspector Kemp, standing before the crowd declaring, “A riot is an ugly thing … and I think that it is just about time we had one!

Then there is TABOR itself. As the Monster played by Peter Boyle ruefully ruminated, “For as long as I can remember people have hated me. They looked at my face and my body and they ran away in horror.” If TABOR could talk, it might utter that exact musing about the tax-and-spend politicians who have loathed Bruce’s creation since the day it came to life in 1992

READ: Colorado Sun opinion columnists.

In fact, Bruce stitched TABOR together from so many subjects that horrified political operatives passed a new rule in the very next election that barred the practice in the future. Obviously they channeled their inner Wilder and feared more “nonsensical ravings of a lunatic mind.”

Ironically, that change protected TABOR from repeal efforts for more than a quarter century

Now, after eight years in court, the case hasn’t even had its first hearing on the substantive merits. Instead, it’s been bounced between the trial court and various courts of appeal, including a brief stop at the U.S. Supreme Court. Neither hearts nor kidneys nor the vaunted central nervous system have anything on the convoluted complexity of the TABOR case to date.

Even the 2-1 appellate panel majority noted the lower court’s “attempts to ‘don waders’ and generate some cognizable structure out of the sludge,” before it reversed the case trajectory and overturned the district court’s decision to dismiss for a failure of standing.

Of course, it wouldn’t be shocking for the 10th Circuit to review the case en banc. Decisions in this case have reversed more often than the hump on Igor’s back. Trying to figure out what will happen next is akin to looking into the future with Marty Feldman’s eyes, a futile effort.

TODAY’S UNDERWRITER

The ultimate irony in the multi-pronged attack on TABOR is that by the time a court actually hears arguments over whether it violates the constitutional dictate for a republican form of government, Kerr v. Hickenlooper may be moot. If voters approve a ballot measure to repeal TABOR, the underlying basis for the lawsuit would disappear.

That would make an apropos end to an already absurd case almost a decade in the making.

For now, though, Kerr v. Hickenlooper continues. In the famous words of Dr. Frankstein, “It’s alive. IT’S ALIVE!!!


Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq


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