AG isn't meddling

Right or wrong, Suthers has right to weigh in

Published May 1, 2007 at midnight

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A memo produced by Attorney General John Suthers' office last week concluded that the Democratic plan to raise more revenue for schools by freezing mill levies should go to a vote of the people.

Whether Suthers is right or wrong - and we happen to believe he's right - he does have the authority to issue an opinion whether it's been requested by the governor or not.

Suthers has taken clouds of flak in recent days from Democratic activists and even ostensibly nonpartisan columnists for his presumption. They insist he should sit quietly wrapped in his robes and not issue an opinion unless one is requested by his chief client, Gov. Bill Ritter.

But the attorney general is entitled, even obligated, to speak out on major constitutional issues whether he's asked or not. Suthers' Democratic predecessor, Ken Salazar, did so just four years ago and the Colorado Supreme Court backed him up.

AG Salazar didn't just speak out in opposition to the redistricting plan rammed through the legislature by the Republican majority in the final days of the 2003 session. He sued then Secretary of State Donetta Davidson, a Republican, in an effort to stop her from implementing the new map.

In her defense, Davidson contended that the AG had no constitutional, statutory, or common law power to sue and that, by filing the petition, he violated his ethical duty to represent the secretary of state.

"We reject both arguments," said the high court in its December 2003 opinion overturning the redistricting. "We see no reason to depart from our long-established practice allowing the attorney general to petition this court in an appropriate case."

Another quote from the decision: "Consistent with his ethical duties and his oath of office, if the attorney general has grave doubts about the constitutionality of the impending 2004 general election, he must seek to resolve these doubts as soon as possible . . . We find the attorney general has the authority to file this original action . . ."

For what it's worth, Salazar was happy to use some of these quotes in a press release issued by his office the day the decision came down.

The mill-levy proposal at issue this session, Senate Bill 199, hasn't yet become law and so Suthers is in no position to sue. And he might not choose to be the plaintiff even if the bill is eventually signed by Gov. Bill Ritter (who originated the idea in the first place). Other taxpayers might challenge its constitutionality instead, such as Douglas Bruce, author of the Taxpayer's Bill of Rights.

After all, it's TABOR that requires that a "district," which can include the state as well as a school district, "must have voter approval in advance for . . . a tax policy change directly causing a net tax revenue gain to any district."

Is changing a longstanding state law that pushes mill levies down a "tax policy change"? That's the issue.

Suthers' conclusion that it is a policy change may or may not be upheld by the courts, but he is certainly entitled to speak out on the matter.

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