TABOR Committee members and TABOR friends,
We regret to inform you that the TABOR Foundation lost the Bridge Enterprise case.
The Court of Appeals concluded that the tax could still be designated a fee if it was likely the payer could use a bridge in the future. The only step left to us in the judicial system was for the Colorado Supreme Court to recognize the fallacy of that conclusion and overturn the Appellate Court. The Supreme Court selects the cases it will hear and yesterday declined to allow the case to proceed any further.
The TABOR Committee Board believed the case was eminently win-able. The state government’s scheme was so obviously a subterfuge to get around TABOR; the structure and premises so blatantly dishonest that we could not foresee any judge allowing it to proceed. The practical consequence of the loss is that the fiction will continue that you incur a toll when you cross a bridge and that you pay your tolls every year with your car registration tax. The “Bridge Enterprise” will continue to operate as if it were a business, but do so inside the Colorado Department of Transportation. It performs what is historically a government function, uses the Colorado Transportation Commission as its board of directors and the Department director as its executive director. It will mean that the made-up entity can continue to move government revenues off-budget and eventually place Colorado citizens in debt for about $1 billion off-budget, without prior voter approval. What a travesty. Continue reading
Plaintiff seeks enforcement of the Taxpayer’s Bill of Rights of the Colorado
Constitution (“TABOR”). TABOR requires a vote of the people
before the State or any local government may: create new debt, levy new taxes, increase tax
rates, or institute tax policy changes directly causing a net tax revenue gain. Id. Without a vote
of the people, the Colorado Bridge Enterprise has created new debt, levied new taxes, increased
tax rates, and instituted tax policy changes causing a net tax revenue gain to the Colorado
Department of Transportation and the Bridge Enterprise. By taking these actions without a vote
of the people, Defendants have violated the rights of Plaintiff’s members to vote on the
imposition of new taxes and debt, as guaranteed by TABOR. Plaintiff therefore seeks
declaratory and injunctive relief to abate and correct Defendants’ unconstitutional actions.
The TABOR Foundation alleges that CBE (Colorado Bridge Enterprise) violated TABOR by levying a tax on vehicle registration and by issuing revenue bonds without first seeking voter approval.
Friends of the Taxpayer’s Bill of Rights,
Your TABOR Committee has a lot of irons in the fire, so I thought to take inventory:
The lawsuit alleging TABOR unconstitutional is Kerr vs. Hickenlooper. You might recall that a 3-judge appellate panel of the federal 10th Circuit found the trial could proceed. In a direct and forceful response, the Attorney General’s Office asked for an appellate review by the entire Court (“en banc”). From the opening salvo:
This case involves questions of exceptional importance: whether three state legislatorsmay enlist the federal judiciary to take sides in their dispute with the state’s constitution, its governor, and its people over the proper role of direct democracy. A case involving more fundamental issues about the proper role of the federal courts in a system of horizontally and vertically divided power is hard to imagine. If the panel decision stands, this Circuit will be alone in giving federal judges the power to decide that some laws are unconstitutional because they are too democratic.
The panel reached two holdings, each of which is unique among the circuits and conflicts with Supreme Court precedent….. Continue reading
Friends of the Taxpayer’s Bill of Rights,
Yesterday, July 8, the Colorado Court of Appeals heard arguments by attorneys representing the TABOR Foundation (we are the appellant) and the Colorado Bridge Enterprise. The three-judge panel already had the written arguments (“briefs”) from both sides. This hearing was the last step before the Panel rules. The ruling will be issued “in due course” according to the Court, which means perhaps one to two months, although such timing can vary greatly. We are praying for the Appeals Court to overturn the trial court decision that allows this abomination to continue; we want the State to have to get prior voter approval to collect the bridge tax (“surcharge”) and to obtain prior voter approval before putting Colorado citizens $1 billion in debt.
Our attorney, Jim Manley of Mountain States Legal Foundation, once again did stellar work, demonstrating quick thinking and thorough preparation. The arguments were limited by rule to 15 minutes for each side. Here is a direct link to the 30-minute audio file: http://www.courts.state.co.us/Courts/Court_Of_Appeals/Oral_Arguments/Audio_Files/140708-13CA1621.wma
By Brian Vande Krol
To fee, or not to fee. That is the question.
Whether ’tis Nobler in the wallet to suffer
The Fees and Enterprises of outrageous Governance,
Or to file suits against CBE,
And by opposing end them?
A Colorado organization has filed an appeal to overturn a Denver District Court finding about the Taxpayer’s Bill of Rights (TABOR). We believe the trial court erred in finding that Colorado’s Bridge Enterprise (CBE) conforms to TABOR.
In 2010, the legislature created the CBE to repair and maintain bridges. The CBE was called an “enterprise” so it could issue debt without a vote of the people, as is otherwise required by TABOR. The CBE already has issued $300 million in debt and plans more (up to $1 billion).
An enterprise is a government-owned, self-supporting business, which is exempt from TABOR restrictions. The legislature also authorized the CBE to impose a new charge on vehicle registrations. Known as the bridge safety surcharge, it was designated for repair and maintenance of state-owned bridges. But the CBE had a problem. Because the charge is not a fee for service, it functioned like a tax, which requires a vote of the people.
Disinclined to allow Colorado’s constitution to stand in the way, the CBE called it a fee and hoped the label alone would be enough to avoid a tax election.
In 2012, the TABOR Foundation sued to reverse the tax and stop the issuance of more debt, arguing that the fee is actually a tax, and that the CBE is not a qualified enterprise and cannot issue debt without a vote of the citizens of Colorado. Continue reading