Published: October 20, 2014
El Paso County Ballot question 1B is nothing more than a dishonest attempt to fool voters. Its shameful deception rises to the level of the misleading term-limits language of a few years ago. If you remember the term limits language that implied that a “yes” vote “limited” terms when it actually extended them, then question 1B this year might ring a bell. 1B imposes a tax of $92.40 per year on the average household in El Paso County for the next 20 years and beyond. That is a minimum tax increase of $1,848 per property and likely much higher. However, you wouldn’t know these facts just by reading the ballot language.
Pretty harsh to say it is deceptive, but the facts leave little doubt. First, the language calls the tax a “fee.” Why? If they called it a tax, the Colorado Constitution would require the ballot language to start out by saying “shall taxes be increased by $39,275,650 for 2016 and each year after for 20 years.” By cleverly calling the tax a fee, they can now start the language with “Are you in favor of funding emergency needs caused by flooding.” It was worded this way to enhance the ability to get it passed but it is nothing more than a way to trick you into believing that the money coming out of your pocket is a fee and not a tax. After all, it is on your property tax bill.
The sleight of hand continues. Rather than being honest about how much you’re going to pay each year, they broke down the amount per month. They could have said that it would cost the average homeowner $1,848 over the next 20 years. Instead, they broke down the amount by month – to $7.70 per month. Why not break it down to the day, hour or second? By the way, if you do the math, it is just over a penny per hour tax increase.
Question 1B also creates a government bureaucracy and then exempts it from the Taxpayer’s Bill of Rights provisions of the Colorado Constitution.
In other words, it creates a bureaucracy and then allows that bureaucracy to vote to extend the tax (that they call a fee) without going to the citizens for a vote of the people.
As Mayor Steve Bach, who strongly opposes 1B, stated, “the new $92.40 stormwater fee is about the same amount the average residential property owner now pays for all city services combined.” That’s right, you’ll pay as much property tax for stormwater as you do for police, fire, snow removal, street repair, parks, arts, etc. Imagine this new unaccountable bureaucracy getting as much property tax as the city of Colorado Springs, never having to face an election and having the ability to increase ?the tax at their whim and without voter approval.
If this tax increase of $785 million over 20 years weren’t offensive enough, the audacity of the language should convince any citizen to vote “no.” The drafters of the language trying to pull the wool over voters eyes by calling a tax a “fee”; reducing the yearly tax amount to make it appear smaller; and thumbing their nose at the voters by taking away the right to vote on tax increases make this as deceptive and misleading as any ballot language we’ve ever seen.
Our stormwater problem is real and it should be addressed, but Question 1B is not the answer. I hope you’ll join Mayor Bach, myself and many other community leaders in voting “no.”
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Jeff Crank is a talk show host on AM 740 KVOR and the president of Aegis Strategic, LLC.
http://gazette.com/guest-column-ballot-question-1b-a-dishonest-tax-increase/article/1539836
I don’t get it. What part of the state election laws (Title 1) allows for an opinion poll to be included on a ballot? Is this something peculiar to Colorado Springs Home Rule charter?
In reality, there is much ambiguity about how ballot questions, even those that comply with TABOR’s requirements and all case law etc. , fit into our legal framework. Since they are not initiative or referenda under the Constitution (art V sect. 1) what are they?
What does “approved by the voters” mean?? I always hate to suggest we need guidance from the General Assembly because they rarely know what they are doing, but we can’t have the election process used to take opinion polls and we can’t have governments thinking that opinion polls are legally binding.
Eric Sutherland
sutherix@yahoo.com
Eric,
You posted a series of questions to the TABOR Committee website about the Jeff Crank column “Ballot Question 1B: A dishonest tax increase.” https://thetaborfoundation.org/guest-column-ballot-question-1b-a-dishonest-tax-increase/
A Board member suggested that we should answer your questions. Perhaps addressing your last question first will help to illuminate the others. Please let me know if I have the right end of the stick regarding your comments.
You noted:
1. What does “approved by the voters” mean?? I always hate to suggest we need guidance from the General Assembly because they rarely know what they are doing, but we can’t have the election process used to take opinion polls and we can’t have governments thinking that opinion polls are legally binding.
Answer: Colorado’s constitution contains a Section called the Taxpayer’s Bill of Rights, frequently known by its acronym, TABOR. It was passed to constrain the growth of government by defining how much any local government or the state government may automatically grow its budget one year over the next. If elected officials want to increase the growth above that, they must put the issue to a vote on the ballot. If a majority of citizens pass the measure, the government can tax voters more by the requested amount. That is the “voter approval” you asked about. The step is required and legally binding. It imposes one more check in our American system of checks & balances.
2. I don’t get it. What part of the state election laws (Title 1) allows for an opinion poll to be included on a ballot? Is this something peculiar to Colorado Springs Home Rule charter?
Answer: I read the article as a protest that the proposed increase does not require the ballot measure to be framed as a tax increase, which it clearly is. TABOR requires a vote for higher taxes, but not for fees. (The reason for exempting fees was so that small increases in charges would not go to the ballot – especially since a fee is generally something that an individual can decide to forego – visiting a national forest, for example, rather than paying the State Park fee). Because the City Council is calling this increase a fee, it is avoiding certain constitutional requirements.
3. In reality, there is much ambiguity about how ballot questions, even those that comply with TABOR’s requirements and all case law etc. , fit into our legal framework. Since they are not initiative or referenda under the Constitution (art V sect. 1) what are they?
Answer: These ballot questions are placed there by the legislative body (county commissioners, city council, General Assembly, etc.) and are by definition “referred measures,” or referenda.
Thank you for your interest and participation,
Penn R. Pfiffner
Chairman, TABOR Committee
303-233-7731
Thank you very much for responding to my query. Also, I greatly appreciate TABOR foundation’s website, work and spirit.
My suspicion is that voters have been considering and voting on ballot questions for the past 20 years with the presumption that the terms and conditions would be legally binding in the event of a “yes” vote. By legally binding, I mean that a plaintiff would have standing to enforce the terms and conditions in court if a government did not abide by the terms and conditions, even if that plaintiff was not suffering an injury by the departure.
Your answer in 3) is the most instructive. Still, I think there are some gaps/ambiguity in the law.
My understanding of TABOR is informed by:
– having read all the opinions of the precedents that have delivered us to the current understanding of TABOR
– having read a fair volume of pleadings in a handful of TABOR lawsuits. (MSLF, Mesa County v. Ritter, Stop Stormwater Utiltities v. Adams County are examples.)
– having contemplated many TABOR lawsuits and actually preparing to litigate 2 or 3 pro se. I have an expansive focus upon the nexus of TABOR and Urban Renewal Authority abuses of tax increment financing. However, there is also one case of over collection of tax and another case where an unlawful creation of debt is contemplated.
I can probably best bring your attention to the problem I see by describing a simple situation. What happens if a local government violates the terms or conditions of a successful ballot question? For example:
– the voters of a city or county approve a sales tax to fund a specific new building but funds from the sales tax are used to fund a different capital construction project.
– the voters of a school district approve a mill levy override to purchase technology for education but funds from the MLO are used to purchase a new gymnasium instead.
How would a citizen challenge either of these situations in court? What would be the basis for a claim for releif? The amount of tax collected is the same as what was approved, it was just used for a different purpose. The language of TABOR does not provide a constitutional basis for challenging the departure unless more tax is collected than what was approved. The possibility exists that an individual or class might have suffered injury as a result of the departure, but that will not always be the case. In other words, achieving standing could be a difficult or impossible task, even though the intent of the voters is being ignored.
The very best answer I have come up with is a court challenge invoking the constitutional protection afforded by Article V section 1 and the standing afforded citizens per Dodge v. Department of Social Services and similar cases. The case law and statutes really don’t give us much direction, however. There is language in Caciopo v Eagle County School District that came very close to addressing an alleged departure from the terms and conditions of a ballot question, but is in no way dispositive.
I recently challenged the language of a proposed ballot question that will be decided by the voters in this election. This was a sales tax extension referred by the Larimer County BoCC. It was misleading and was not even written in correct English. Statute provides for such a challenge under 1-11-203.5 CRS, which was legislated in response to the adoption of TABOR. The judge completely screwed up the contest by first acquiring jurisdiction and then declining jurisdiction. The only thing he accomplished by heeding the pressure of the County Attorney was creating a cause of action should the issue succeed. My action here led to a complete reading of the election laws.
My suspicion is that voters have been considering and voting on ballot questions for the past 20 years with the presumption that the terms and conditions would be legally binding in the event of a “yes” vote. By legally binding, I mean that a plaintiff would have standing to enforce the terms and conditions in court if a government did not abide by the terms and conditions, even if that plaintiff was not suffering an injury by the departure.
We are all familiar with referenda and initiative for the purposes of legislating laws. Amendment 68 or Proposition 104, for example, will create black letters on a white page in a codified body of laws such as the Constitution or statutes. But what about a TABOR ballot question? An approval is a different kind of of legislation. Essentially, an approval provides a defense against an possible action seeking to halt or refund taxation. An approval does not legislate the creation of a special fund or legally restrict the expenditures that may be made from that fund.
It is possible, post election, for a governing body to codify the terms and conditions of a successful ballot question, but there is no universal requirement to do so. Furthermore, certain public entities such as school districts, do not maintain a code of laws or equivalent. It is a real stretch to say that the language of Article V section 1 applies to a ballot question that merely generates approval … not legislate law.
There are many other legal questions about TABOR turning around in my brain. What can taxpayers do about the creation of debt without voter approval after bonds have been sold?? Would a price mandate that sets the price of a good at an unnaturally high level and thus forces the payment of extra sales taxes require voter approval.?? etc. I am very happy however, just to have the assistance on the ballot question ambiguity.
ALSO….
I could use a lawyer at this point. Not because I need legal assistance, but because I would like to collect some money to cover my time in the TABOR actions I am contemplating. A couple of these are slam dunks, (if there is such a thing). Others are winnable, but may flirt with precedent/appeals. Colorado does not allow pro se litigants to recover money to compensate them for time expended. Only a licensed attorney may be so compensated. Furthermore, you actually have to pay an attorney to recover fees. Thus, I would benefit from a relationship with an attorney who would take payment in an agreement that pays me as his or her contractor for other services … essentially splitting the award.
Governments tend to be slightly less likely to litigate when there is a possibility of having to pay plaintiff’s attorneys fees. Not much, mind you, it is not their money, but a little bit.
If you should know of anyone in a position to cover their costs and help keep things on an even keel, please let me know. In addition to the TABOR violations I wish to correct, the public interest has been trampled upon. The problems I see here in Larimer County are also evident in spades across Colorado.
Eric Sutherland
(970) 224 4509