VANDE KROL: BRIDGES OVER LEGALLY TROUBLED WATERS
There have been violations of basic common sense and principles of good government,” said TABOR Foundation Chairman Penn Pfiffner. “The concept and construct of this dishonest and devious scheme must not stand.”
A Colorado organization has filed an appeal to overturn a Denver District Court finding about the Taxpayer’s Bill of Rights (TABOR). The TABOR Foundation, whose mission includes protecting the constitutional amendment that was initiated by the people, believes the trial court erred in finding that the State of Colorado’s Bridge Enterprise conforms to TABOR.
In 2010, the legislature created the Colorado Bridge Enterprise 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. 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. The charge, known as the bridge safety surcharge, 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 looked like a tax that would require 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 vote of the people.
In May 2012, the TABOR Foundation sued to reverse the tax and stop the issuance of more debt (the CBE plans to sell up to $1 billion in bond debt). The arguments presented in the lawsuit fall into two categories: 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.
If the bridge surcharge survives the legal challenge, the courts will have established a method by which government can fund most anything by creating enterprises, assessing fees and issuing debt. They will have found a method to strip Coloradans of their constitutionally protected rights under TABOR. Continue reading
The foundation filed a request for preliminary injunction Thursday in Jefferson County District Court, asking that the districts be blocked from collecting the tax starting Jan. 1, as allowed by a new state law.
House Bill 1272 lifted exemptions on items the districts could tax. Previously, sales of food, beverages, cigarettes, advertising materials and food containers were off limits to RTD and SCFD.
The tax is expected to net $2.7 million for RTD and $270,000 for SCFD next year, according to the complaint.
The TABOR Foundation — formed to protect and enforce the Taxpayer’s Bill of Rights, a state constitutional amendment that requires a vote of the people to increase taxes — says the legislature violated TABOR by enacting a new tax without voter approval.
“The legislature seems to have forgotten there is a part of the constitution called TABOR, and we are hoping to remind them that the Taxpayer Bill of Rights does exist,” said Jim Manley, of the Mountain States Legal Foundation, which filed the complaint on behalf of the foundation.
Manley said voters should get to decide whether RTD and SCFD can expand their tax base. “All we are asking is for the voters to weigh in on this.”
Supporters say the tax is not new, but merely an expansion of the till the districts are allowed to dip into. It also simplifies the tax-collection process and makes the accounting more accurate, RTD said.
“We see it as simply aligning the tax base of the special district with the state tax base,” SCFD executive director Peg Long said.
Read more: TABOR group sues 2 special districts — RTD, SCFD — over new tax – The Denver Post http://www.denverpost.com/breakingnews/ci_24379305/tabor-group-sues-2-special-districts-rtd-scfd#ixzz2imeezy4O
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Whether the General Assembly can circumvent TABOR by expanding the taxing authority of RTD and SCFD without voter approval.
Regional Transportation District, Scientific and Cultural Facilities District, and the Colorado Department of Revenue
Colorado District Court for Jefferson County, 2013CV31974
In the 2013 legislative session, the Colorado General Assembly enacted HB13-1272, which unlawfully authorizes the Regional Transportation District (“RTD”) and the Scientific and Cultural Facilities District (“SCFD”) to levy new sales and use taxes on food, beverages, cigarettes, advertising materials, and food containers. These new taxes will be levied by RTD and SCFD, beginning January 1, 2014. Continue reading
Attorney General John Suthers and former Congressman David Skaggs. (Provided by C.L. Harmer)
Colorado Attorney General John Suthers and former Congressman David Skaggs tonight will discuss the TABOR lawsuit, aimed at upending the constitutional amendment that strictly controls spending and taxation.
Suthers, a Republican, and Skaggs, a Democrat, are scheduled to appear on Rocky Mountain Public Broadcasting System’s Colorado Quarterly program hosted by RMPBS President Doug Price. It airs at 7:30 p.m.
The lawsuit was filed in 2011 against Democratic Gov. John Hickenlooper, in his capacity as governor, challenging the constitutionality of the 1992 voter-approved Taxpayer’s Bill of Rights. Plaintiffs said TABOR, put on the ballot by anti-tax advocate Douglas Bruce, takes power away from state and local elected officials. Skaggs is one of the attorneys representing the nearly 35 plaintiffs, comprised mostly of Democrats but including former state Sen. Norma Anderson, R-Lakewood, and former state Rep. Bob Briggs, R-Westminster.
Suthers’ office, which defends the governor’s office, argued that the plaintiffs did not have legal standing to sue, saying a federal court “is not a forum for rehashing political arguments” but the U.S. District Court in August 2012 allowed the lawsuit to move forward. Suthers appealed that decision, which was heard last month by the U.S. Tenth Circuit Court of Appeals in Denver. No decision has been made yet.
A court is weighing whether Colorado lawmakers should have more power to raise taxes.
A challenge to Colorado’s constitutional limits on spending and taxation was in federal court this week, with plaintiffs arguing the “Taxpayer’s Bill of Rights” encroaches on the legislature’s ability to raise taxes on its own.
The lawsuit, filed in 2011, pits a host of former state lawmakers and high-profile attorneys against a 1992 amendment to the state constitution which limits spending — even requiring refunds to taxpayers in cases of surplus — and also requires public votes on tax increases. It’s the latter requirement that has some lawmakers crying foul that TABOR “arrogates” their power to tax.
While some lawsuits argue nuanced legal theories, TABOR foes go for the constitutional jugular: the U.S. Constitution guarantees states a “republican” form of government, and TABOR’s referendum requirement tips the scale too far toward direct democracy.
“Frustration with the work of legislatures, whether federal or state, may indicate a need for representative institutions to be more effective, but that frustration does not justify or permit resorting to direct democracy,” reads the lawsuit. Continue reading
Route 66 is a famous highway; Amendment 66 is a fiscal dead end, taking over a billion dollars yearly in new state taxes. Here are three strikes against 66 almost no one knows:
The first is their bogus ballot title. TABOR (the Taxpayer’s Bill of Rights) requires a tax increase ballot title begin, “Shall state taxes be increased ($x) annually…?” When the state title board first met, the fiscal estimate was just under $1.5 billion yearly.
A cost 50 percent above their failed 2011 tax hike would be fatal, so the teachers union sought a rehearing. The state agreed to lower the tax estimate one-third, to just below $1 billion. It declared that reduction corrected an innocent ($500 million) mistake.
Would a private analyst making such a “mistake” keep his job? No. Should those who deceive voters get huge pay raises? No. Are they morally fit to teach your children? No.
The second scam is the ballot title omission. State law requires ballot titles list major features fairly. Tax payers love TABOR; tax spenders despise it. So state employees hid the fact that 66 repeals TABOR’s constitutional guarantee of a uniform income tax (equal protection, the same for everyone). Today’s rate is 4.63 percent of federal taxable income. 66 establishes two tax rates. Continue reading
Today, in its ruling on California’s Proposition 8, the Supreme Court ruled that citizens’ groups do not have standing to defend a law passed by referendum or initiative in federal court, should the state decline to do so. By making this reasoning the basis for its decision, the Court has potentially invited grave implications for Colorado and its Taxpayers Bill of Rights.
Currently, TABOR is the subject of a lawsuit arguing that it violates the US Constitution’s provisions that each state have a republican form of government:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
ARTICLE IV, SECTION 4
The plaintiffs, which include five current Democratic state legislators, argue that, by removing the legislature’s ability to raise taxes without approval by the people, has violated that clause. That case is now in federal court, in front of the 10th Circuit Court of Appeals.
That assertion has been challenged on a number of counts. First, the federal courts have ruled that clause – the “Guarantee Clause” to be non-justiciable, leaving it instead as an issue for the political branches. Second, there is every reason to believe that the founders used the word “republican” to describe even systems of direct democracy. Continue reading
This week the lawsuit brought by the TABOR Foundation was heard in Denver District Court. Judge Michael Martinez heard the testimony. Attorney Jim Manley from Mountain States Legal Foundation was the principal representative for the Plaintiffs. The Defendants were the Fund itself and the Colorado Transportation Commission. The Attorney General’s office is responsible for defending the state government’s scheme, but contracted with attorney Mark Grueskin to handle the defense.
The lawsuit asks the Colorado court to rule the issuance of debt without prior voter approval unconstitutional, under the Taxpayer’s Bill of Rights (TABOR). As part of new vehicle charges approved during the Ritter administration, a “bridge safety surcharge” was designated as a fee, not a tax, and never offered as required for voter approval. The Bridge Enterprise was established as a separate government business to repair bridges. The scheme declares that because you might drive over certain bridges you must pay a yearly toll, which is collected when you register your vehicle. The “tolls” received as income allowed the Bridge Enterprise Fund to issue $300 million in bonds without prior voter approval, also required under TABOR. Total debt may eventually be over $1 billion. For more information, see http://tax.i2i.org/files/2013/05/Bridge_Enterprise_Fund.pdf from A Citizen’s Budget for 2013 published by the Independence Institute.
“The critical issue is whether this government can break trust with the citizens of Colorado,” said TABOR Foundation chairman Penn R. Pfiffner. “Bridges need to be built and maintained, but elected and appointed officials can’t ignore the constitution as they pursue those goals. Do it the right way.”
Five witnesses; two heroes.
Two Plaintiff witnesses were Ms. Chris Sammons and Willie Wharton, who both explained that they had to register vehicles and therefore pay the bridge surcharge “fee,” although those specifically identified vehicles never cross a single Bridge Enterprise bridge. Continue reading
Friends of TABOR,
The trial testimony and arguments wrapped up on Tuesday, a day earlier than the time allotted. The “evidentiary” portion of the trial is complete. Our TABOR Foundation Executive Director, Bob Foland, was present for the morning’s proceedings and I for the afternoon’s. Our combined report follows.
Judge Michael Martinez expects both Plaintiffs (us) and Defendants to file post-trial briefs, and set a deadline 21 days out. When Mountain States Legal Foundation files that brief, we will be done with the trial. From that point, we will have to wait for the Judge’s ruling. Regarding another case involving a different judge, our lead attorney observed that he is waiting for a ruling a year later. We don’t know about Judge Martinez’s intentions or workload, so simply have no basis to give you an expected date; just that it probably won’t follow hard on the heels of the final briefs.
The early part of the morning was taken to complete testimony of Plaintiff’s last witness, the engineer from Florida. As is only fair, the Defense was given its full opportunity to cross-examine the witness. After that, it was Defendants’ turn to present its witnesses.
The first Defense witness was the contractor who handles or assists the Bridge Enterprise with management and administration. He explained how his firm had participated. Continue reading