Category Archives: Legal Issues

Jun 06

Progressives Return To Their Roots

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ICYMI, Mountain States Legal Foundation provides The TABOR Foundation and The TABOR Committee with excellent legal advice and representation. Here is their June column, Summary Judgement, written by MSLF President William Perry Pendley:
 
Each month, MSLF president and chief operating officer William Perry Pendley publishes his monthly column, Summary Judgment. A hard-hitting commentary on environmental, federal lands, natural resources, or private property rights issues, Summary Judgment is carried by newspapers, magazines, newsletters and other publications throughout the country. So topical are the issues addressed by Summary Judgment that they are often the focus of talk radio discussion for weeks after the column is sent out at the end of each month. Summary Judgment runs 650 words and may be reprinted so long as credit is given to William Perry Pendley and to Mountain States Legal Foundation. A glossy photograph of the author is available or download a high-res photo.

Progressives Return To Their Roots

Jun 01, 2016 | by William Perry Pendley

The Virgin Islands’ Attorney General issued a subpoena against ExxonMobil and a free-market think tank in Washington, branding, blacklisting, and besmirching hundreds from coast to coast as participants in a long-running criminal conspiracy.  The think tank’s lawyer reviled the subpoena as “offensive,” “unlawful,” a violation of “civil rights,” and “un-American.”  It is all that but one:  “un-American.”  It has its roots in progressives’ earliest and proudest days.

 

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Jun 04

Effort to undo TABOR tax law dealt blow by court

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50354_2201459078_608064_nEffort to undo TABOR tax law dealt blow by court  But decision unlikely to end legal challenge

By | mkmatthews@denverpost.com and | jbunch@denverpost.com

WASHINGTON — A legal effort to dismantle Colorado’s controversial TABOR tax law was dealt a major setback Friday when a federal appeals court ruled that some of its biggest opponents did not have standing to move forward with a court challenge.

The decision by the 10th U.S. Circuit Court of Appeals means that Colorado’s Taxpayer’s Bill of Rights, or TABOR, isn’t going anywhere soon — nor its requirement that state lawmakers and city leaders get permission from voters before raising taxes.
“For half a decade now, we’ve been fighting a federal court battle to defend our voters’ right to have a voice in state tax policy,” said Colorado Attorney General Cynthia Coffman in a statement. “I hope this decisive win will convince TABOR’s opponents that the courts are not the place to pursue their political agenda.”

There’s little chance, however, that the ruling will be the final word in the matter, as the coalition looking to unravel TABOR vowed to continue a court challenge that began in 2011.

To read the rest of this story, click (HERE):

Jun 04

BIG LOSS FOR KERR: Liberal Legislators Cannot Undo TABOR, Says Supreme Court

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Kerr Colorado News AgencyOh no! Liberal golden boy state Sen. Andy Kerr has been spanked by the U.S. Supreme Court for trying to undo TABOR, which is the taxpayers bill of rights that requires taxpayer approval in order to raise taxes. The court’s ruling basically said that a select few legislators simply did not have the right to overturn a constitutional amendment, no matter how badly they want that fat cash for special interests. Ok, fine, we added that last part. But it’s true.

The case has been working its way through the court system, first taken up by Attorney General John Suthers and finished today by Attorney General Cynthia Coffman, who offered the following statement:

“I hope this decisive win will convince TABOR’s opponents that the courts are not the place to pursue their political agenda. However, my legal team and I will continue to defend taxpayers’ rights against legal challenge as long as we have to.”

While Team Kerr was told no, the court left open the possibility that a different set of plaintiffs (not legislators) could pursue a similar legal argument. Liberals just cannot wait to get their greedy paws on more taxpayer funds, so we don’t anticipate they will give up anytime soon.

BIG LOSS FOR KERR: Liberal Legislators Cannot Undo TABOR, Says Supreme Court

Jun 03

10th Circuit Court of Appeals upholds TABOR, Colorado’s tax restriction

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10th Circuit Court of Appeals upholds Colorado’s tax restriction (TABOR) » Publications » Washington Policy Center

By JASON MERCIER  | 

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Jun 3, 2016
The 10th Circuit Court of Appeals today vacated a legal challenge by some lawmakers to Colorado’s requirement for tax increases to receive voter approval. Washington Policy Center joined an amicus for the case in 2015 when it was before the U.S. Supreme Court.

The American Bar Association provides this summary of the case:

“Colorado state legislators sought to invalidate key provisions of the Colorado Taxpayers’ Bill of Rights (TABOR), claiming that those provisions interfered with their constitutional voting abilities and thus violated the Guarantee Clause of the federal constitution. Colorado Governor John Hickenlooper, the named party tasked with defending TABOR, argued that the legislators’ claims ought to be dismissed for lack of standing, and as nonjusticiable under the political question doctrine. The Tenth Circuit found that TABOR had caused actionable injury to the legislative plaintiffs by depriving them of their unique ability to affect Colorado tax policy by their votes, and (upon quick findings of causation and redressability) held that those plaintiffs possessed both Article III and prudential standing. The court held that a case-by-case approach to the political question doctrine was required by Baker v. Carr, and that the legislative plaintiffs’ Guarantee Clause claims were not barred as nonjusticiable by any of the six factors detailed in that case.” 

The potential impact of this original ruling on voter approved fiscal restraints of any kind on lawmakers across the country was very troubling to us which is why WPC signed on to an amicus in the case when it was before the U.S. Supreme Court. On June 30, 2015, the Supreme Court granted our petition and vacated the prior judgment and remanded the case back to the 10th Circuit for further consideration in light of the ruling in Arizona State Legislature v. Arizona Independent Redistricting Comm (2015).

Today the 10th Circuit ruled that lawmakers challenging the Colorado tax restriction lacked standing as individual lawmakers. The court ruled that only the legislature as an institution could challenge Colorado’s constitutional tax restriction. Colorado is one of 17 states with some form of supermajority vote or voter-approval requirement for tax increases.

Washington voters going all the way back to 1979 with Initiative 62, have consistently called for a higher threshold to raise taxes. The state Supreme Court, however, has ruled that a supermajority requirement for tax increases can only be enacted via a constitutional amendment. A December poll conducted by Elway Research, INC found that 65% of Washington voters want lawmakers to act on such a constitutional amendment. Should voters finally get the chance to consider one, the federal courts have again made it clear the people have the right to restrict tax increases via their state constitutions.

 

http://www.washingtonpolicy.org/publications/detail/10th-circuit-court-of-appeals-upholds-colorados-tax-restriction

Jun 03

SCOTUS Ruling on Kerr Vs. Hickenlooper Lawsuit

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“Today the Judiciary ruled in favor of the Taxpayer’s Bill of Rights (TABOR).  Opponents of TABOR had asked the federal courts to rule it unconstitutional.  Arguments about whether a full trial should even begin had been appealed all the way to the US Supreme Court.  That highest Court had directed the 10th Circuit located here in Denver to reconsider the case in light of more recent precedent.  With today’s decision by the 10th Circuit Court, it appears that this case will be dismissed and TABOR will survive unscathed.

 

Your TABOR Foundation joined a group of limited government proponents to file Friend-of-the Court briefs at each step in support of TABOR.  We were ably represented in that effort by the National Federation of Independent Business through its attorney, Luke Wake.

 

We can be grateful that the most existential threat to TABOR is gone, for now.  We should be diligent that the Leftists who want to repeal such limits on the growth of governments will try again in a different fashion.

 

May 26

Colorado voters gambled on pot and TABOR, but will they go for single-payer health care?

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Colorado voters gambled on pot and TABOR, but will they go for single-payer health care? | Cover Story | Colorado Springs Independent

Colorado voters gambled on pot and TABOR, but will they go for single-payer health care?

Is it healthy to experiment?

By

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This November, Coloradans could decide to bring the first European-style health care system to the nation.

While other proposed initiatives scramble to make the ballot, a single proposal, Amendment 69, known as ColoradoCare, has been cleared for takeoff since late 2015. If voters pass it, ColoradoCare would amend the state Constitution to bring a tax-funded health insurance system to Colorado. Everyone not already covered under federal insurance like Medicare would be eligible for coverage, which would include copays for certain services but no deductibles.

While detractors and supporters cast the plan quite differently, this much is certain: ColoradoCare would be a financial giant. Its board members would handle some $38 billion a year and cover 4.4 million people.

Such a system has been proposed by other states. Vermont came close to implementing a plan until its one-time champion, Gov. Peter Shumlin, dropped it in 2014, calling it unaffordable.

According to Physicians for a National Health Care Program, “a non-profit research and education organization of 20,000 physicians, medical students and health professionals who support single-payer national health insurance,” more than 15 states have introduced single-payer health care bills since the passage of the Affordable Care Act in 2010. And, of course, plenty of countries across the globe have single-payer systems.

But if Colorado voters pass Amendment 69, the state would be in uncharted territory as the first and only state to ensure that all its citizens have health care. Owen Perkins, spokesperson for the campaign to pass ColoradoCare, says that sounds just fine to him.

 

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May 13

PLF files brief in Colorado Taxpayer’s Bill of Rights case

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PLF files brief in Colorado Taxpayer’s Bill of Rights case

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The Colorado Department of State requires companies to pay a business and licensing charge for filing various statutorily mandated corporate documents. The Department considers this charge to be a fee. But most of the money raised from the charge is not used to defray the cost of providing the business and licensing services, the classic purpose of a fee. The lion’s share of the business and licensing charges go to the Department’s Cash Fund, and less than 15% of the Fund is used to defray the cost of operating the Business and Licensing Division. Because most of the money raised from the business and licensing charge is used to provide the Department of State’s general services, it has all of the hallmarks of a tax, and should be labeled as such.

Colorado courts examine three factors to determine whether a charge is a tax or fee: (1) the language of the enabling statute; (2) the primary purpose for which the money is raised; and (3) whether the primary purpose of the charge is to defray the cost of services for those who must pay it. The District Court of Denver concluded that while the first two factors support characterizing the business and licensing charge as a fee, the third factor did not because the primary purpose was not to defray the cost of providing business and licensing services. Unfortunately, the court did not explain how it would consider the factors in this balancing test, instead concluding that TABOR did not even apply to the business and licensing charge.

PLF’s brief raises two points. First, we argue that Colorado courts should apply a presumption that TABOR applies to all charges. Colorado voters made it clear that they wanted to limit government growth when they enacted TABOR. Colorado Courts would give effect to the Colorado voters intent by applying a presumption that TABOR applies. Second, we suggest that Colorado courts follow the footsteps of other state courts in conducting the balancing test that determines whether a charge is a tax or fee, by giving stronger consideration to the third factor—whether the charge is meant to defray the cost of providing a service to those who must pay it—and de-emphasizing the first factor which considers the label given to the charge. Indeed, if Colorado courts give too much weight to the government’s characterization, governments will have a perverse incentive to mislabel charges to avoid TABOR’s requirements. Under this test, the business and licensing charge is clearly a tax. Thus, the charge would illegal because it was not submitted to the voters.

PLF files brief in Colorado Taxpayer’s Bill of Rights case

Apr 28

Research & Commentary: Colorado’s Hospital Provider Tax and TABOR Collide

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Research & Commentary: Colorado’s Hospital Provider Tax and TABOR Collide

Matthew Glans –
February 8, 2016
Funding Medicaid programs has proven to be an increasingly difficult task for many states.
In 2009, the Colorado General Assembly passed legislation creating a hospital provider fee (HPF) as part of its effort to provide health care for those Coloradoans who cannot afford private medical coverage and do not qualify for Medicaid. The HPF is assessed on hospitals based on the number of patients they treat and the number of outpatient services provided.

Each hospital pays a different amount for the tax, ranging from millions of dollars to nothing at all. The Denver Post reported preliminary state figures estimate the state’s hospitals paid $688.5 million in fees from October 2014 through September 2015. The federal government matched the fees, paying $1.2 billion.

The provider tax became a more important issue in Colorado after the Affordable Care Act (ACA) was passed in 2010. The Colorado legislature added an expansion of Medicaid to the hospital provider fee program in 2013, growing the program to roughly $2.4 billion during the state’s 2014–15 fiscal year. The fee is matched by the federal government, and it is used to provide expanded Medicaid coverage and increased enrollment in Colorado’s Child Health Plan Plus program.

The amount of revenue generated by HPF has grown rapidly over the past year. Revenue in 2015 increased by around 30 percent compared to the previous year, because the state’s Medicaid program is only now appearing in fee revenue. All told, the program funds an expanded Medicaid population of around 300,000 people.

Linda Gorman of the Independence Institute argues HPF has generated controversy ever since its inception. The original legislation creating the tax attempted to hide the true nature of the tax by calling it a “fee.” Even the federal government referred to the provider fee as a tax in a letter approving its payment.

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Apr 20

Colorado’s Budget Settled, But Debate Coming On Taxes, Refunds

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Colorado’s Budget Settled, Debate Coming On Taxes, Refunds « CBS Denver .

April 19, 2016 1:57 PM

Speaker Dickey Lee Hullinghorst and other Democrats, including Gov. John Hickenlooper, want the fee set aside to avoid refunds under the Taxpayer’s Bill of Rights, free millions of dollars for Colorado’s underfunded roads and schools, and give momentum to pending ballot initiatives that would ease TABOR’s grip on state finances.

It’s a debate that some thought settled well before both chambers approved the $27 billion budget last week. Not so, said Hullinghorst, a Boulder Democrat.

“In this budget we managed to get by, but next year it will be twice as bad with cuts in education and higher education,” she said. The House could debate her bill this week.

Hullinghorst said reclassifying the fee can provide at least five years’ flexibility to spend more on schools and roads, and tackle TABOR and other constitutional restrictions on budget writers’ room to maneuver.

TABOR requires refunds whenever total state income surpasses a cap that’s based on inflation and population, not the economy’s performance.

 

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Mar 19

Colorado budget forecast renews TABOR fight

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By: Megan Schrader

March 18, 2016

 photo - Colorado State Capitol Building
Colorado State Capitol Building 

DENVER – The state will take in less money in 2016-17 than previously forecast by economists due in large part to the struggling global economy, but the roughly $90 million decrease in revenue, is a proverbial drop in Colorado’s $26 billion budget bucket.

Lawmakers will use the March forecast to set the fiscal year 2016-17 budget in the next week, but not much has changed from when the governor released his recommended budget in November. That is largely because lawmakers made mid-year adjustments to the 2015-16 budget to provide a budgeting cushion in case of a downturn.

Lawmakers on Friday received a forecast from Natalie Mullis, chief economist with the Legislative Council, and the governor’s budget office. This year the forecasts were extremely close.

“We did lower our expectations for general fund revenue,” Mullis said. “We already had expectations for slowed growth in revenue. In December we expected that general fund revenue would grow by 1.8 percent this year, which is actually negative if you adjust for population and inflation. It slowed down again a little bit, to 1.5 percent in this revenue forecast,”

In addition to the slowed economy, the budget will face pressure from an estimated $59.3 million that must be refunded to Colorado taxpayers because of revenue limits put in place by the Taxpayer’s Bill of Rights. That tax return – what people would claim on their April 2017 income tax returns – is down from previous projections because revenue is lower.

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