Lawyers for two ex-Colorado governors say Hickenlooper hospital plan is legal
As Coloradans wait for an opinion from Republican Attorney General Cynthia Coffman over what’s become the biggest political debate in Colorado, two former executive branch lawyers are weighing in with their own conclusion.
At issue is whether it would be constitutional to reclassify a billion dollar hospital program so money generated from it will not push general fund revenue over mandated limits under the state’s Taxpayer’s Bill of Rights. Democratic Gov. John Hickenlooper and many Democrats in the legislature want a program called the hospital provider fee redesignated so there’s more money in the budget to fund roads, education and other programs.
In a legal review released today by former attorneys for past governors Bill Ritter, a Democrat, and Bill Owens, a Republican, they say the Hickenlooper plan would be “legally sound and fiscally responsible.”
The lawyers are Jon Anderson and Trey Rogers who worked for Owens and Ritter respectively. They did the legal analysis at the request of a coalition called Fix The Glitch, which is made up of business groups, higher education institutions, and other organizations whose interests stand to lose out.
Their new high-profile legal opinion likely will be used to try to politically neutralize a previous non-binding legal memo from lawyers for the legislature. That opinion, rendered by the nonpartisan Office of Legislative Legal Services, stated reclassifying the program would be unconstitutional. Republican Senate Leader Bill Cadman of Colorado Springs has held up that opinion as a reason not to do it. He and and other conservatives say reclassifying the program is a scheme to circumvent TABOR, a constitutional amendment approved by voters in 1992. They’d rather see money refunded back to individual taxpayers when general fund revenue spills over its limits.
To clear up whether reclassifying the hospital provider fee into an enterprise is constitutional, Hickenlooper’s administration asked Attorney General Coffman to render her own opinion a month ago, and that opinion is pending. As they wait, nothing much happens when it comes to substantial debate, and legislative action on the hospital fee is on hold. Because of the state’s fiscal constraints, the issue has become is the most pressing debate this legislative session.
The legal analysis released today is likely to provide counsel to some lawmakers as they consider whether or not to support the provider fee reclassification— a key plan in Hickenlooper’s budget strategy this session.
“The coalition will certainly be sharing this with lawmakers and I hope they find it useful,” Rogers told The Colorado Independent.
Democratic House Speaker Dickey Lee Hullinghorst and Democratic Senate Minority Leader Lucia Guzman are already championing the news.
“Attorneys who have worked for both Democratic and Republican governors, as well as a former Republican attorney general, confirmed what I’ve believed all along— that a hospital provider fee enterprise can be constructed in a constitutional way, and as a result we can avoid a budget disaster this year,” Hullinghorst said in a statement.
Guzman said there should be plenty of time for lawmakers to come together in a bipartisan manner “to fully fund our public education system, and to make sure we have safe roads and bridges across Colorado” with 90 days left in the session.
One of the lawyers, Rogers, who is now a partner with the Lewis Roca Rothgerber Christie law firm, told The Independent his legal review was a direct response to the OLLS opinion Cadman has used to say the plan is unconstitutional. The only point on which he and Anderson differ with the OLLS opinion “is the question of whether a self-sufficient, state-owned provider fee business would qualify as an enterprise under TABOR. We believe it would,” he said in a statement. He said “TABOR is intended to limit the growth of government that is paid for by our tax dollars, but it is not intended to limit the growth of self-sufficient, government-owned businesses that receive no tax dollars.”
Meanwhile, former Republican Attorney General John Suthers, now the mayor of Colorado Springs, has also weighed in on the debate. What he brings is not only legal firepower, but also some political defense that could blunt some conservative attacks against this new legal analysis and the reclassification plan in general.
“The way hospital provider fees are accounted in the state budget has created a serious problem,” Suthers said in a statement. “If this situation is not addressed soon, important state programs will be cut that negatively impact Colorado Springs and every other local community in Colorado. Transportation funding, in particular, will continue to suffer. Based on my experience, I believe that some form of a hospital provider enterprise could be designed to be constitutional under state law.”
The legal review has been bouncing around the inboxes of those involved in the healthcare and business community since it came out before noon today.
“This isn’t about politics. It’s about what is best for moving Colorado forward, honoring TABOR and ensuring we can support the education and infrastructure we need to stay competitive,” says Kelly Brough, president and CEO, Denver Metro Chamber of Commerce. “We’re encouraged by this latest legal memo and will continue to advocate for creating a hospital provider fee enterprise fund.”
Opposing the reclassification effort at the Capitol is the state chapter of Americans for Prosperity, the prime political arm of the billionaire industrialist Koch brothers.
“There are obviously a lot of legal opinions that are going to be floated out there coming down on one side and coming down on the other, and I think there’s two different questions: can it legally be allowed, and should it happen? And we look at it as if it’s an end-run around TABOR,” AFP’s Colorado field director Michael Fields told The Independent. “Regardless of what happens with the hospital provider fee quote-unquote ‘fix,’ it doesn’t really address some of the long-term structural budget issues that we’re going to have to deal with.”
In regard to that last statement, Hickenlooper might agree.
In his Jan. 14 State of the State speech Hickenlooper said about the issue: “If we can’t make this very reasonable change — like many already allowed under TABOR — then what choice do we have but to re-examine TABOR?”