Cadman: Somebody knew hospital provider fee is unconstitutional
By Kara Mason
It only took 40 minutes for the Office of Legal Services to return Senate President Bill Cadman’s request last week for a memo on whether the Legislature can legally recast the state hospital provider fee as an enterprise fund. The short answer is no, the maneuver wouldn’t comply with the Colorado Constitution.
Cadman, R-Colorado Springs, believes someone else — a lawmaker, a state official — must have requested the same information and failed to share it.
Senate President Bill Cadman displays a memo from the Colorado Legislative Legal Services office answering whether a proposal to reclassify the state’s hospital provider fee would be constitutional at a press conference in his office on Jan. 6 at the Capitol.
“Our guys are really good,” Cadman said. But not that good. Cadman doesn’t think legal services could crank out an opinion on the topic in under an hour.
“Somebody had it, and I wish they would have shared it with us,” he said.
Cadman broke the news to reporters Wednesday afternoon in his office, saying that more reporters — the 10 that were present for the briefing — have seen the memo than have members of his caucus.
The proposed move to reclassify the hospital provider fee — in order to free the money it brings into state coffers from spending restrictions put in place by the Taxpayer Bill of Rights — has been a heated topic at the Capitol for more than a year. A bill proposed by Democrats to make the move was killed by Republicans last year. Gov. John Hickenlooper has been touring the state in recent months selling the idea to voters.
This is the 12th day — the final day — of Christmas, which is appropriate, Cadman said.
“Santa Claus can’t put $750 million in his bag and violate the Constitution.”
The memo says the General Assembly has the power to pass legislation that creates new entities to charge and then collect the fee, but designating the hospital fee as exempt from TABOR would only withstand a legal challenge if the entity met all legal requirements of a government-owned business — which it won’t.
“There is no legislative work-around to the Constitution,” Cadman said.
UPDATE: House Democratic caucus spokesman Dean Toda said Democrats question whether this is new news. On Wednesday evening, he said his office would release a statement within a half-hour.
State Rep. Lois Court, D-Denver, last year co-sponsored House Bill 15-1389, legislation to reclassify the hospital provider fee, along with House Speaker Dickey Lee Hullinghorst. State Sen. Pat Steadman, D-Denver, was the upper chamber sponsor. Asked Wednesday evening whether the sponsors had researched whether the bill was constitutional, Court told The Statesman she couldn’t remember exactly how the sponsors and drafters approached the question.
SECOND UPDATE: Steadman said that Wednesday was the first time he ever saw a memo on the constitutionality of the fee proposal. A few moments after seeing the memo with Cadman’s name on it, Steadman added, he saw another one that bore the name of state Sen. Matt Jones, D-Louisville, dated March 2015.
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“As legislators, we get to interpret the Constitution in our own way. If we mess up, only the courts can correct us,” Steadman told The Statesman. “A lawyer’s opinion is just another opinion,” he said, adding that it really comes down to what the courts decide in the end on these kinds of matters.
Steadman said he believes it was no secret that there were conflicting opinions on the legality of the proposed fee reclassification last year.
On Wednesday night, Hullinghorst issued a statement in response to what the House Democratic communication office termed “the circulation of a non-binding legal memorandum questioning the legality of an effort to fix a looming state budget crisis.”
“We have a challenging session ahead of us to address Colorado’s critical priorities like roads and schools, and that is my focus,” Hullinghorst said in the statement. “I and Coloradans across the state are acutely aware of the terrible budget cuts we are having to contemplate if we don’t find a solution. As we begin the 2016 session I will continue to work with members from both chambers and parties to solve these problems.
“Lots of lawyers will have lots of different opinions, but most importantly the legislature is the lawmaking body in this state, so that we can address problems just like these.
“We are focused on finding solutions for the people of Colorado, not on finding excuses for why we are failing them.”
THIRD UPDATE:Later Wednesday night, Senate Minority Leader Lucia Guzman, D-Denver, released the following statement:
“I’m astonished. Passing a balanced budget that addresses the needs of Coloradans is our most important responsibility, and yet, it’s being held hostage by politics,” Guzman said.
“We should be focused on issues the people of Colorado care about like kids getting a great education, and that roads are safe and well-maintained across the state.
“When you’re the majority party in the Senate, Coloradans expect you to lead. As the minority party, we are prepared to do so, and hope Republicans in the majority rise to the occasion.”
This story has been updated.
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