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  • Joel M. Pratt

Colorado Supreme Court Pushes Back on Judicial Supremacy

On August 21, 2023, the Colorado Supreme Court decided Ward v. State, 2023 CO 45, a case ostensibly about a property tax law and ballot measure. But the case fundamentally addresses the separation of powers in Colorado and pushes back against judicial supremacy.


At issue is Senate Bill 23-303, which seeks to provide tax relief to Colorado citizens affected by property tax increases. It does so primarily by referring to the voters a proposition, known as Proposition HH, that would modify refund calculations under Colorado’s Taxpayer Bill of Rights (TABOR).


The Colorado Constitution requires that such laws address only a single subject and, further, that such laws clearly express their effect. An interest group sued the state after the bill became law, and a trial court heard the claims and adjudicated them. The Colorado Supreme Court then heard the appeal.


The Supreme Court determined that state courts lack jurisdiction to resolve a “single subject” dispute until the measure is actually passed by Colorado voters. As in other contexts, courts do not adjudicate hypothetical laws; they only adjudicate live disputes about enacted laws (i.e., “cases and controversies”). Accordingly, only if the voters pass Proposition HH will a court have jurisdiction to hear a constitutional challenge to the law.


Moreover, while the Supreme Court agreed that state courts have some jurisdiction to hear the “clear expression” challenge, it rejected that challenge on the merits.


The opinion is complex and delves into the oh-so-accessible areas of law like subject matter jurisdiction and the interplay between the legislature and the voters in areas of tax reform under TABOR. It also contains several paragraphs analyzing what can and must go in a ballot measure title. Thrilling stuff.


But the opinion does send a signal regarding the separation of powers. Indeed, any opinion from a state court of last resort that limits subject matter jurisdiction can be understood in separation of powers terms. It is a “do not enter” sign on the courthouse door. It represents deference to the voters, the General Assembly, and the Governor. In other words, in this opinion, the court says: “Let the process work, and we’ll police the margins if we need to.”


Opponents of this approach may point to the potential waste. Elections are expensive, and resources will go toward supporting and opposing Proposition HH. And if the petitioners in this case are ultimately right as a matter of constitutional law, all of that time and money will be for naught because the Court will strike the law.


But that is all hypothetical. Courts do not see themselves as policymakers. They do not always determine the most efficient outcomes or processes. Instead, the Constitution and laws dictate the Court’s approach to adjudicating individual disputes, not the other way around. And opinions like this where courts self-police and limit their own power encourage the partisan political branches to work out policies before judicial review.


This case certainly previews the litigation to come over Proposition HH. And it indicates the Supreme Court’s interest in policing the limits of its own authority to address laws prospectively.

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