Aug 27

Aurora asks district judge to dismiss TABOR lawsuit

Aurora, taxpayers face off in district court over taxing district for hotel project

BRIGHTON – The city of Aurora asked an Adams County District Court judge on Monday to dismiss a lawsuit that claims the city violated TABOR with parts of a multimillion-dollar incentive package for a hotel developer.

“The project has been held up pending the litigation and we are seeking the dismissal of those claims,” said attorney Daniel Lynch with the Denver law firm Kutak Rock.

Lynch said there are no factual allegations in the complaint that was filed against the city and the Aurora Urban Renewal Authority in March. He said the court should be able to make a ruling on the legal interpretation of the Taxpayer’s Bill of Rights and dismiss the case.

Attorney Mark Grueskin, who is representing two taxpayers who filed the lawsuit, said several facts are in dispute and asked that the remaining claims move forward.

At issue is whether the city of Aurora violated TABOR when it allowed a single voter representing a corporate landowner to vote to raise taxes in a special election.

Under a June 2011 incentive agreement approved by the Aurora City Council, the increased tax revenue would go to the developer to pay for construction of a conference center and other infrastructure surrounding the Gaylord Rockies Hotel development in northern Aurora by Denver International Airport.

The city in a single meeting in June 2011 established an ordinance allowing 30 percent of the voters in any geographic area to petition the city for creation of an “enhanced taxing area.”

If the city approved the petition, the new taxing area also could petition for a tax increase.

In the case of the Gaylord Rockies development, the owner of land proposed for the project appointed a representative to vote on a 2 percent increase in lodging tax in the new enhanced taxing area and a 6.25 percent increase in the admissions tax (a tax paid on tickets to events).

Both taxes were approved by a single voter and the revenue from those taxes was guaranteed to the developer in an incentive agreement.

Grueskin said TABOR – a voter-approved constitutional amendment – requires a vote of the entire electorate in Aurora and does not allow for the creation of a special voting district to the exclusion of every other Aurora voter.

“Why is it that this one landowner had some sort of claim to vote?” Grueskin asked. “The point of TABOR is not to protect the middleman, it’s to protect the person paying the tax.”

Lynch said the city complied with TABOR by having an election that included all of the voters in the enhanced taxing area.

Adams County District Court Judge Ted Tow said he might issue a ruling by Friday on the motion to dismiss the remaining claims in the lawsuit.

By Megan Schrader Published: August 26, 2014
Contact Megan Schrader: 286-0644

Twitter @CapitolSchrader

Read more at http://gazette.com/aurora-taxpayers-face-off-in-district-court-over-taxing-district-for-hotel-project/article/1536251#X1b9bVd7kC9hSkj4.99

 

http://gazette.com/aurora-taxpayers-face-off-in-district-court-over-taxing-district-for-hotel-project/article/1536251

Jul 24

Penn’s take on Kerr order denying rehearing en banc

TABOR Directors and friends,

We will not see a review by (appeal to) the entire US 10th Circuit Court of Appeals (en banc) in the federal case to overturn the Taxpayer’s Bill of Rights.

The next logical step is for the Defendant to ask the US Supreme Court to hear an appeal that the case should not proceed to the trial phase because the substance of the case does not fall within the judicial branch to decide.  The Solicitor General’s office this morning confirmed in a telephone call with me that such a filing is contemplated.

Luke Wake and his team at NFIB are ready to help out once again.  See his message below.

The dissents from the 10th Circuit Court are telling and a very important development in proceeding to the next step.  They follow the very brief ruling in the attachment.

Our TABOR Foundation is committed to seeing this through as far as we need to, and Board approval is already in place.  I’ll keep you informed as I learn more.

Penn Pfiffner

I’ve been in communication with each of you about the Kerr v. Hickenlooper case, wherein a handful of ideologically motivated litigants are challenging the constitutionality of the Colorado Taxpayer Bill of Rights (TABOR). TABOR was an initiative approved by Colorado voters in the early 1990s, which gives the citizens a right to vote on new taxes. NFIB was very supportive of the reform then and the NFIB Legal Center is now leading its defense (along with TABOR Foundation).
>
> As you recall, I previously explained that the Tenth Circuit federal court of appeal recently decided to allow a “Guarantee Clause” challenge to proceed against TABOR. And I’ve said before, this would open Pandora’s box for challenges to any constitutional amendment restraining the legislature’s tax and spend powers, or potentially any amendment limiting the state’s police powers.  We were hopeful that the Tenth Circuit would review the decision because it is binding on all Tenth Circuit states, and because it provides persuasive authority that could be invoked by litigants challenging taxpayer protections in other states as well. Unfortunately the Tenth Circuit denied Governor Hickenlooper’s petition for en banc review; however, there were three very strong dissenting opinions (see attached). These dissents largely echoed the concerns we raised in our original amicus brief.
>
> Given the force of these three dissents, I should think the State is in as good a position as possible in pursuing a petition for certiorari in the U.S. Supreme Court. When considering whether to take a case the Supreme Court asks two questions: (1) Does this decision create a conflict between federal circuits, or does it expressly conflict with a previous Supreme Court decision? (2) Does the case raise an issue of national concern? Both can be answered in the affirmative.
>
> Early in the 20th Century, the Supreme Court decided that a Guarantee Clause challenge to Oregon’s initiative process was precluded by the political questions doctrine. The Court has since repeatedly affirmed that Guarantee Clause cases are non-justiciable. In a 1992 opinion Justice Ginsberg held out the possibility that there may be some conceivable Guarantee Clause case that might be justiciable [we don't necessarily disagree that there might be some case in the future], but no Court of Appeal has found one to date–except the Tenth Circuit in this case.
>
> The Tenth Circuit held that a Guarantee Clause challenge should be allowed to move forward despite the fact that the judges were not presently aware of any standard or principled rule for how the case might possibly be decided. This is highly problematic because it encourages litigation without principled rules.  And the case certainly raises an issue of national concern because–as discussed above–it invites challenges to potentially any state constitutional amendment, especially voter initiatives–and most especially taxpayer protections.
>
> We are now planning to file an amicus brief encouraging the Supreme Court to take the case. Each of you has indicated that your organization has tentatively agreed to join with us in this filing. Please let me know if you have any questions. My understanding is that the State will be filing its petition for certiorari sooner than later. So we may be filing as early as September. I will keep you all in the loop.
>
> Very best,
>
> -Luke

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

Jun 30

Water District – Wants a Blank Check!

by  Jay Silverheels

Customers of the Eagle River Water and Sanitation District – will be asked this May 6th 2014 to Vote to give their Water District – A BLANK CHECK!

ERW&SD-Logo

Are you a customer (and voter) inside their Eagle River Water & Sanitation District?  (Click Here) to learn if this Water District includes your property.

A Blank Check?

Yes.  Here is the specific Ballot Language that the Water District is using – to try to convince you to let them avoid TABOR spending restrictions in the years to come.

ERWSD-Ballot-Issue-B-1

Your TABOR protections ARE – Article X, Section 20 of the Colorado Constitution!

Why do you think our Water District didn’t use the word TABOR in their Ballot language?

ECT recommends you vote NOT to remove your Taxpayer protections under TABOR!

http://eaglecountytimes.com/2014/03/30/water-district-wants-a-blank-check/

Apr 23

Like HAL 9000, TABOR’s programming overrides will of voters

We disagree.  TABOR is the will of the voters.

What do you expect from Carol Hedge’s party when they can’t tax, tax, and tax some more so they can spend, spend, spend until Daddy takes the T-Bird away…. TABOR only says you can’t raise taxes without the voters approving the tax.

OPINION

Like HAL 9000, TABOR’s programming overrides will of voters

By Carol Hedges
Guest Commentary

HAL 9000, the mellow-voiced but malevolent-minded computer from "2001: A Space Odyssey." (Thinkstock)

HAL 9000, the mellow-voiced but malevolent-minded computer from “2001: A Space Odyssey.” (Thinkstock)

The Taxpayer’s Bill of Rights, or TABOR as most Coloradans know it, is frequently acclaimed as carrying out the will of voters. But as recent events show, it’s doing the opposite.

Would Colorado voters really have approved TABOR in 1992 if they had known it could prevent their communities from accepting state emergency funds after natural disasters like wildfires and floods? Would they have voted for TABOR if they’d known that it could unexpectedly cut taxes on marijuana that voters had overwhelmingly approved in two elections?

Rather than being a tool used to express the people’s will, TABOR works more like a computer with a mind of its own that carries out its preprogrammed mission automatically, oblivious to voters and to their elected officials.

We now have a new political structure – the HAL 9000 form of governance, modeled after the mellow-voiced but malevolent-minded computer in “2001: A Space Odyssey.”

Many Coloradans know TABOR mandates tax elections. But it does so much more. Continue reading

Mar 31

Lawsuit against TABOR

from the April edition of the Naysayer newsletter from historian, author, and social critic Phil Goodstein.
Note a different location, La Casa de Manuel at 3158 Larimer, for the Naysayers’ meeting at 5:30 p.m. on Saturday, April 4.

The Democrats’ thorough contempt of voters and popular democ­racy is endless. It has surfaced again in the lawsuit filed by party lawmakers against the Taxpayer’s Bill of Rights (TABOR). The citizenry adopted this amendment to the state constitution in 1992, partially in reaction to the extravagant handouts and giveaways of the government to private businesses and the scam of Denver International Airport.
Ever since its passage, the governing class has raged against it. This refers to the political elite. Far from seeing themselves as representa­tives of the public, designed to get the government to work for everyday people, they are essentially representatives of the government who try to impose the dictates of the bureaucracy on the populace. They particularly call for ever greater pay for public officials, seeing them­selves as the enlightened guardians of civilization while they surround public buildings with goons to defend the government from the popu­lace. Such ideologues rail against TABOR precisely beside it is designed to check the usual plunder of officeholders with their give­aways to politically well-connected donors.
While endlessly attacking TABOR, the governing class has never tried to repeal it through an open and honest referendum. Rather, as is its wont, it has employed stealth. Its latest scheme is a federal lawsuit, claiming the act is unconstitutional because it ties the hands of lawmak­ers in deciding how much they can tax the populace. In other words, rather than having the courts respect the decision of the electorate, the governing class wants sweeping judicial intervention whereby ap­pointed jurists, with no public accountability, will allow it to have its way despite the mandate of the citizenry. Precisely such policies and arrogance are what fuel the massive alienation of the citizenry from the government. For so illustrating their elitism and contempt for every­body except their cherished government, those pushing the TABOR suit are an Associate Naysayer of the Month.

http://denverdirect.blogspot.com/2014/03/lawsuit-against-tabor.html

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