Jul 23

Colorado AG loses another round from Court of Appeals on TABOR lawsuit

By Lynn Bartels

The Denver Post

Colorado Attorney General John Suthers (Kathryn Scott Osler, Denver Post file photo)

Attorney General John Suthers has lost his request to have the entire 10th U.S. Circuit Court of Appeals rehear a decision by a court panel that ruled Coloradans have a right to challenge the constitutionality of the Colorado Taxpayer’s Bill of Rights.

The 6-4 decision by the court marks another milestone in a legal fight over how Colorado conducts its most important functions. One of the court’s 11 judges recused himself.

Colorado voters in 1992 passed the TABOR amendment, which in part limits state spending and bars lawmakers from raising taxes without a vote of the people.

A lawsuit filed against Gov. John Hickenlooper in 2011 argues that by taking away lawmakers’ ability to tax, TABOR violates the U.S. Constitution’s guarantee that every state have a republican form of government.

Suthers questioned whether the plaintiffs had the right to sue, but was rebuffed by a U.S. District Court judge. A panel of Court of Appeals judges in March concurred with the lower court.

In its 49-page decision, the 10th U.S. Circuit panel in March noted the Supreme Court has held that members of a state legislature may have standing to sue in order to vindicate the “plain, direct and adequate interest in maintaining the effectiveness of their votes.”

It did not rule on the merits of the case.

Suthers then asked for the entire court to decide whether plaintiffs had standing and other issues.

The latest decision paves the way for a trial in U.S. District Court unless the attorney general successfully seeks review by the U.S. Supreme Court.

“We are of course gratified with this decision supporting the plaintiffs’ position that the case should be heard on its merits, and we look forward to that hearing in U. S. District Court,” one of the plaintiffs’ attorneys, Mike Feeley said, in a statement.

“Now, with the procedural objections resolved and three rulings all in the plaintiffs’ favor — one in U. S. District Court in 2012 and two this year by the 10th Circuit — we hope the case can proceed without delay and without an expensive additional appeal to the Supreme Court.”

David Blake, deputy attorney general for legal policy said, “We will be discussing the case with our client but we expect to seek Supreme Court review.”

The plaintiffs, who include some current state lawmakers such as Sen. Andy Kerr, D-Lakewood, and House Majority Leader Dickey Lee Hullinghorst, D-Boulder, claims that TABOR deprives them of their ability to perform the “legislative core functions of taxation and appropriation.” Moreover, the plaintiffs say explicitly that TABOR prevents them from doing their jobs.

Lynn Bartels: 303-954-5327, lbartels@denverpost.com or twitter.com/lynn_bartels

http://www.denverpost.com/news/ci_26196416/colorado-ag-loses-another-round-from-court-appeals

Jul 10

TABOR Committee & TABOR Foundation update

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

Mar 22

A fee or a tax? Guarding TABOR against lawsuits

By Brian Vande Krol 

Guest Commentary

TABOR author Douglas Bruce collects political signs to be placed in high traffic areas of Colorado Springs rebuffing efforts against Referendum C, amending

TABOR author Douglas Bruce collects political signs to be placed in high traffic areas of Colorado Springs rebuffing efforts against Referendum C, amending TABOR, in November 2005. (Chuck Bigger, Special to The Denver Post)

 

 

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

Mar 18

Gerou: TABOR having ‘insidious’ effect on Colorado

More “tax and spend” talk from envious Democrats about TABOR

by 

DENVER — For years Democrats have been ranting and raving about Colorado’s Taxpayer Bill of Rights, which requires voters to approve all tax hikes and keeps state spending from rising beyond a certain level.

On Tuesday, during a Joint Budget Committee briefing on the state’s quarterly revenue forecast, a Republican lawmaker joined them.

“I have to tell you, quite honestly, the more I learn about TABOR, particularly what it did with the floods in our counties, the less and less I like TABOR, and the more insidious I think it has been to state government,” said Rep. Cheri Gerou, R-Evergreen, who sits on the Joint Budget Committee and is in her final year at the legislature.

Last year, local communities found that TABOR limits on spending and revenues prevented them from freeing up funds to help citizens recover from September’s catastrophic floods.

“I’ll have an effigy burned in my front yard when I get home, but it’s the honest to goodness truth,” Gerou said. “It’s not been good.” Continue reading

Mar 17

The Court of Appeals’ Anti-TABOR Decision

The Court of Appeals’ Anti-TABOR Decision

March 17, 2014 by Rob Natelson

041410 Rob Natelson-2The U. S. Court of Appeals for the Tenth Circuitrecently refused to dismiss the suit by various public sector interests to invalidate Colorado’s Taxpayer Bill of Rights (TABOR). The plaintiffs claim that TABOR violates Article IV, Section 4 of the U.S. Constitution. That provision is called the Guarantee Clause because it guarantees that the states will have republican forms of government.

However, the Court of Appeals addressed only standing and justiciability issues, and allowed further hearings on the Guarantee Clause issue.

The Guarantee Clause was designed to prevent states from becoming monarchies, dictatorships, or anarchies. It is totally inapplicable to TABOR,which simply requires that certain conditions—such as popular votes or legislative supermajorities—be met before the legislature can make designated increases in taxes, spending and debt. Although it is common in Colorado to claim TABOR is “unique,”  in fact, it is only one of the stronger fiscal-restraint provisions that appear in the constitutions of 49 states. (The exception is Vermont.)

Restraints of this kind are called “TELs”—tax and expenditure limitations. Even the U.S. Constitution imposes such restraints on Congress. For example, it requires direct taxes, other than the income tax, to be apportioned among states by population, and it imposes a flat ban against taxes on exports. Continue reading

Mar 15

Their Power

 

Paul Jacobs pictureTheir Power

Boo hoo.

Thirty-three hifalutin members of Colorado’s political elite — state legislators, former legislators, board of education officials, city and county politicians, and assorted insiders — are whining as plaintiffs in what’s called a federal case.

Why? They lost an election … in 1992! Now, as the federal 10th Circuit Court of Appeals put it, “Plaintiffs claim that they have been deprived of their power over taxation and revenue.”

Over 22 years ago, Coloradans petitioned the Taxpayer Bill of Rights onto the ballot and voters passed it. Known as TABOR, the constitutional amendment limits the growth of government spending, unless voters approve higher spending levels. It also requires voter approval for tax increases, except in an emergency. The politicians objected at the time, but have since lacked both the courage and the democratic sensibility to take the issue back to the people.All this by routine.

Instead, they’re suing to overturn the result. Continue reading

Mar 15

Colorado residents may get a refund for pot tax

Why this pot business deodorizes its cash 

Why this pot business deodorizes its cash
NEW YORK (CNNMoney)

Colorado residents could see some green in their pockets thanks to the new recreational marijuana taxes.

Budget advisers to the state legislature crunched the numbers and revealed the state could be forced to refund as much as $100 million to taxpayers.

The state’s Taxpayer Bill of Rights, known as TABOR, sets limits on taxes and government spending. If the government collects more than expected, it generally owes taxpayers a refund.

But Colorado taxpayers shouldn’t expect a refund check in the mail. The state has several other procedures to handle a refund.

The state could provide taxpayers a credit on the next year’s tax bill, for example, or reduce the sales tax. Continue reading

Mar 14

The Tenth Circuit’s Punt in Kerr v. Hickenlooper Opens the Door for a Torrent of Litigation

In 1992 the people of Colorado voted to amend their Constitution with adoption of a Taxpayer Bill of Rights (TABOR). This was a historic initiative that put the power in the hands of the people to decide for themselves whether to approve new taxes or tax-hikes. While many states have constitutional protections to prevent new or increased taxes—such as California’s requirement of a supermajority vote in the legislature—Colorado’s TABOR was unique in that it made the citizens of the state the final word on new taxes or increased taxes. TABOR therein served as a model that has been implemented through constitutional amendments in other states, and which NFIB has supported as a means of protecting small business owners from new and ingenious taxing schemes. But TABOR is under attack—and this may have profound implications, not only in Colorado but throughout the country.

TABOR’s Legal Challenges

TABOR was upheld as constitutional in the Colorado Supreme Court last year in the face of a lawsuit advanced by educators and the parents of school-aged children who complained that TABOR makes it harder for schools to get necessary funding. NFIB Small Business Legal Center filed in that case to defend the law, and we were pleased to see the Court ultimately affirm the constitutionality of TABOR. But TABOR faces yet another challenge—this time in federal court. Continue reading

Mar 13

Colorado legislators grapple with pot-tax refund issue

Colorado lawmakers on the Joint Budget Committee expressed frustration Wednesday that even though the state’s voters approved taxes on retail marijuana sales as required under the Taxpayer’s Bill of rights, some of that revenue might have to be refunded under TABOR if more taxes are collected than officials estimated.

JBC staff delivered a 100-page report to legislators outlining most of the scenarios that could occur of if the state collects more than the official $67 million estimate for the first full fiscal year of recreational pot sales, from July 1, 2014, through June 30, 2015.

That estimate was given to voters in the official voters pamphlet — known as the Blue Book — last fall, which explained Proposition AA, the new taxes established for retail marijuana sales. That booklet estimated likely revenue from new pot taxes at $67 million in the first full year. (The ballot language itself pegged predicted tax revenue at $70 million.)

Most current estimates, however, show the state will likely collect far more than $67 million.

The report outlines three courses of action:

– Wait to see how much tax is collected, then ask voters to let the state keep any excesses;

– Send a refund of any taxes collected above the estimate; or,

– Attempt to reduce the 15 percent excise tax on wholesale sales and 10 percent special sales tax in order to keep the amounts collected under $67 million.

“This is a bizarre result that we’d have to refund all that tax money just because what we asked for [was an estimate] in a year when this is going to be a growing industry,” said JBC Vice Chairman Sen. Pat Steadman, D-Denver, at a meeting of the budget panel Wednesday.

“It’s been the will of the people who passed TABOR,” said JBC Chairwoman Rep. Crisanta Duran, D-Denver. Continue reading