Monthly Archives: June 2015

Jun 30

Hospital Provider Lawsuit

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TABOR Committee members and TABOR friends,

The final of three lawsuit developments:

Last Friday, the TABOR Foundation filed a new lawsuit.  The legal firm representing us is Mountain States Legal Foundation.

The legislature responded in 2009 to an incentive offered by the federal government.  The Medicaid program prompted states to impose a new tax (the word the Medicaid program uses).  Revenues received would be matched and the funds made available to pay (some) hospitals for care of indigent people who otherwise would leave the hospitals uncompensated.  As the legislation was moving forward, a memo was generated at the Capitol warning legislators that if the charges were used ONLY for the hospital match, they could qualify as a fee (I would dispute that, but that’s not the issue at hand).  Legislators were warned that if the revenues were used instead for general fund purposes, the charge would definitely be a tax and subject to a TABOR vote.

In three different fiscal years, the legislature diverted some portion of those funds for general appropriations.  Yet, no TABOR prior voter approval was ever obtained, in violation of the TABOR provision in the Colorado Constitution.

The TABOR Committee last fall asked the Hickenlooper administration to address the breach and to negotiate a solution in good faith.  The first meeting was put off until well after the legislative session started, and promises to raise the issue within the Governor’s Council and communicate back were not fulfilled.  Rather, Governor Hickenlooper went public with a scheme to move the whole thing off budget, as if the tax was handled by a government business!

Penn R. Pfiffner

Chairman, TABOR Committee

Jun 30

Kerr vs. Hickenlooper update

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TABOR Committee members and TABOR friends,

This morning saw an important step in a case that threatens the very existence of the Taxpayer’s Bill of Rights.  The development should be good news for our side.

As a reminder – current and former members of the state legislature (and others) sued in federal court alleging that TABOR removes legislators’ ability to “govern effectively.”  The case to declare TABOR unconstitutional is defended by the Colorado Attorney General.  Although the Plaintiffs claim to target only TABOR, if their legal theory were to win, all restrictions on the powers of legislators that came into being through initiated ballot issues would be threatened.  The possible mischief by unguided, unlimited legislators would be essentially unbounded.  The TABOR Foundation was one group to file a “friend of the court” brief to support the defense of TABOR.  Very central to the current status is the Defendant’s argument that some issues may be decided only in the political realm; that interference by the judicial branch is constitutionally inappropriate.  Both a liberal trial judge and a liberal panel of judges in the 10th Circuit Court of Appeals were ready to allow the federal court to hear the merits of the case.  Acting to protect TABOR, the Defendant filed a request to the US Supreme Court for it to rule on whether the case should proceed. Continue reading →

Jun 30

TABOR Foundation vs Bridge Enterprise lawsuit

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TABOR Committee members and TABOR friends,

We regret to inform you that the TABOR Foundation lost the Bridge Enterprise case.

The Court of Appeals concluded that the tax could still be designated a fee if it was likely the payer could use a bridge in the future.  The only step left to us in the judicial system was for the Colorado Supreme Court to recognize the fallacy of that conclusion and overturn the Appellate Court.  The Supreme Court selects the cases it will hear and yesterday declined to allow the case to proceed any further.

The TABOR Committee Board believed the case was eminently win-able.  The state government’s scheme was so obviously a subterfuge to get around TABOR; the structure and premises so blatantly dishonest that we could not foresee any judge allowing it to proceed.  The practical consequence of the loss is that the fiction will continue that you incur a toll when you cross a bridge and that you pay your tolls every year with your car registration tax.  The “Bridge Enterprise” will continue to operate as if it were a business, but do so inside the Colorado Department of Transportation.  It performs what is historically a government function, uses the Colorado Transportation Commission as its board of directors and the Department director as its executive director.  It will mean that the made-up entity can continue to move government revenues off-budget and eventually place Colorado citizens in debt for about $1 billion off-budget, without prior voter approval.  What a travesty.  Continue reading →

Jun 25

U.S. Supreme Court set to report whether it will hear TABOR case

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Colorado court watchers are waiting with baited breath for the nation’s highest court to say whether it will consider a case challenging the Taxpayer Bill of Rights.

The U.S. Supreme Court isn’t considering the merits of a 2011 lawsuit, brought by a group of current and former elected officials, including state Sen. Andy Kerr, D-Lakewood, and House Speaker Dickey Lee Hullinghorst, D-Boulder. Instead, the court is expected to announce whether justices are granting certiorari and will hear the case or whether they’re sending it back to a lower court.

The lawsuit was filed in U.S. District Court in May 2011. Attorneys for the State of Colorado filed a motion to dismiss at that time, claiming the plaintiffs lack standing to file the lawsuit and arguing that the case itself is a political question, which federal courts typically avoid.

The District Court denied the motion and the 10th Circuit Court of Appeals then denied a request by the state for a rehearing, leaving the Supreme Court to decide.

“We’re not yet at the point where (the Supreme Court) could be asked the merits of the case,” said David Skaggs, an attorney for the group that filed the suit.

The court considered the Petition for Writ of Certiorari in conference on Jan. 9 but has not yet issued a decision on it, a delay Skaggs called unusual.

Typically, when the court considers what’s commonly known as a Cert Petition in conference, it announces whether the petition has been granted or denied within a week or two.

“I think it means they’re taking [the issues] seriously,” said David Kopel, an attorney with the Independence Institute, who wrote an amicus brief supporting the state’s arguments in the case.

If the court grants certiorari, then the case will be set for oral arguments during next year’s session, which begins on Oct. 5. If certiorari is denied, the case will return to U.S. District Court in Denver for a hearing on the merits of the lawsuit.

 

Continue reading →

Jun 21

Colorado economic growth slows down a bit, but tax refunds still on the way

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TABOR refunds

Despite a pullback in oil and gas industry jobs, Colorado’s economy is continuing to grow — enough so that state revenues this year will trigger tax refunds in 2016 for Colorado wage earners under the Taxpayer’s Bill of Rights.

The forecast estimates that about $221 million will likely be returned to taxpayers on income tax returns filed for calendar year 2015.

Roughly $83.6 million in refunds will go to people qualifying for the state’s Earned Income Tax Credit and another $137.3 million will be earmarked for all wage earners in the form of a sales tax credit on 2015 returns.

The Colorado Legislative Council forecast projects that the state will finish the current fiscal year on June 30 with about $18.6 million above the state’s required reserve.

“This is the most significant contribution to the economic well-being of low- and moderate-income families in Colorado in decades,” said Ali Mickelson, director of legislative and tax policy for the Colorado Fiscal Institute, a public policy think tank that focuses on issues that primarily affect low and moderate income people.

“More than 350,000 Coloradans will be helped by the state Earned Income Tax Credit. It is truly a historic day.”

The CFI estimates that the average credit under the EITC in Colorado will be about $217 per family. The maximum income to receive the credit would be $53,267 for a family of three or more children, according to the institute.

The federal tax code has had an earned income credit for decades. It’s been popular with liberals and conservatives because it rewards people who are working and claim at least some income on their returns. Continue reading →

Jun 20

EDITORIAL: Debt and Taxes… and a New County Courthouse, Part Two

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Read Part One

Near the conclusion of the friendly, 40-minute meeting between the Archuleta Board of County Commissioners (BOCC) and Colorado Treasurer Walker Stapleton last Tuesday morning, we heard a brief summary, from Mr. Stapleton about the state’s new “Pay for Success” legislation — a new law meant to entice private companies to get involved with public education and child care, by subsidizing those companies with taxpayer revenues. Then the BOCC thanked Mr. Stapleton for his visit, and he assured them that his Denver office could help with the County’s courthouse issues.

“I’m happy to be here,” said Mr. Stapleton. “I’ll pass out my business cards, and you can follow up with me on the Courthouse, and I can put you into a point of contact.” Everyone shook hands.

The view of the existing Archuleta County Jail, from the scenic Pagosa Springs River Walk along the San Juan River.

The next item on the morning work session agenda was the draft Community Development Action Plan, better known as the CDAP. This document, which will be approved by the BOCC later this year, typically lists every possible “development” project that might, at some point, try and lay its hands on federal government grants or loans. As you can see from the 12-page draft document (which you can download here,) our community has a number of ongoing or future projects that the federal government — along with numerous other government agencies, and various non-profit and for-profit companies — might wish to support financially: a “geothermal greenhouse” project in Centennial Park, expansion of the Pagosa Springs Medical Center, a new taxiway at the County airport, a proposed charter school… and two dozen other development proposals.

 

Continue reading →

Jun 15

Update on lawsuit against RTD tax

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TABOR Friends and Supporters,

Here is an update regarding the lawsuit the TABOR Foundation filed to stop the new taxes RTD imposed without voter approval.  The last we reported was that Judge Bruce Jones ruled against us, saying in essence that the legislature can change the taxes for RTD as long as an implausibly broad definition of existing taxes is met.

The legal firm representing us (for free!) is Mountain States Legal Foundation.  The attorney reviewed the Ruling and let us know that his organization would be willing to appeal on our behalf.  In March, your Board of Directors voted to authorize the TABOR Foundation to follow through with Mountain States as far as we can in order to win.  The attorney, Jeffrey McCoy, timely filed a Notice of Appeal.  That’s where the case rests now. Continue reading →

Jun 14

800 YEARS STRIVING FOR FREEDOM

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800 YEARS STRIVING FOR FREEDOM

Eight hundred years ago on 15 June 1215, the English people compelled King John to endorse the Great Charter – Magna Carta.  The Great Charter confirmed the ancient rights of “all the community.”  So what?  Magna Carta is the foundation of America’s Constitution, our defense against tyranny, corruption and civil decay.

English people rebelled against King John’s lawless, inept, profligate and despotic government.  For years they had struggled to restrain John’s abuses, reminding him of the solemn contract to which he had sworn at his coronation.

Magna Carta enumerated specific rights so that henceforth neither a ruler nor his officials could legally sidestep their obligations.  Magna Carta stipulated that they were, like all the people, subject to the law.  No one is above the law.  That was the fundamental point of the Great Charter.

Magna Carta was Europe’s first written constitution, a thorough reform grounded in the ancient understanding that the people ruled through their chosen leader, who retained office only to the extent that he fulfilled his sworn duties and honored the law.  It is the foundation of individual freedom and our bulwark against arbitrary despotism.

History is our story.  History reveals people’s recurring efforts toward a balance of leadership’s role and individual liberty.  Freedom requires constant, courageous vigilance.  Freedom requires each individual’s active commitment, again and again.

Today, nurtured in our culture of individual liberty, we may not recognize that it is rooted in centuries of courageous striving and thus merits our continued reverence.

So, please celebrate freedom on 15 June.

 

Peg Brady

TABOR Committee and TABOR Foundation Board member