Category Archives: Legal Issues

Mar 10

Federal Appeals Court rules Colorado Anti-TABOR lawsuit can proceed

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Published March 7, 2014 | By CTBC Director

A three-judge panel on the Federal 10th Circuit Court of Appeals ruled Friday that a lawsuit challenging the Taxpayer’s Bill of Rights (TABOR) amendment to the Colorado Constitution may proceed, and remanded the case to federal district court to proceed to trial on the merits.

Byron White Courthouse 10th Circuit Denver

The appeals court ruling addressed only the issue of whether the plaintiffs (33 “educators” and legislators who are “mostly Democrats” with a few token “Republicans”) have legal standing to sue, and whether the lawsuit is barred by the “political question” doctrine, and explicitly did not address the merits (or lack thereof; the case has been widely derided as frivolous and groundless) of the lawsuit:

The merits of the case are not before us. We express no view on the substantive issues and intend none. We consider solely standing and the political question doctrine.  (Ruling at 6)

Establishing standing to sue requires, first and foremost, that the plaintiff “has suffered a concrete and particular injury in fact that is either actual or imminent” – which the court affirmed for the plaintiffs who are current or former legislators, since

Legislator-plaintiffs contend they have been injured because they are denied the authority to legislate with respect to tax and spending increases. (Ruling at 21)

The more significant element of the appeals court ruling addresses the “political question” doctrine – the issue of whether the claims brought by the lawsuit may properly be addressed by the courts at all.

 As a threshold matter, we must decide if the political question doctrine categorically precludesGuarantee Clause challenges against state constitutional amendments adopted by popular vote. (Ruling at 29)

The appeals court concluded that guiding U.S. Supreme Court precedent Continue reading →

Mar 09

Appeals Court Allows Suit Against TABOR

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March 7, 2014 3:35 PM

(credit: CBS)

(credit: CBS)

DENVER (AP) – State lawmakers opposed to Colorado’s landmark Taxpayer Bill of Rights won another legal victory Friday as the 10th U.S. Circuit Court of Appeals ruled their lawsuit challenging the law can proceed.

The tax limitation law passed by voters in 1992, known as TABOR, requires all tax increases to be approved by voters. The lawmakers argue that deprives them of the right to have a say in tax policy, denying Colorado a republican form of government promised by the U.S. Constitution.

A three-judge panel from the appellate court concluded that the lawmakers have proven they have been injured by the law and the lawsuit should proceed. They didn’t rule on the merits of the case, which will continue in federal court unless Attorney General John Suthers appeals.

“We consider solely standing and the political question doctrine: whether these plaintiffs have suffered a particularized injury not widely shared by the general populace that entitles them to have their case heard by the federal courts, and whether the question presented is purely political in nature and should not be reached by the courts,” the ruling said.

State attorneys argued that the mostly Democratic lawmakers challenging the law didn’t have the right to sue because they were not harmed by the law. Continue reading →

Feb 07

TABOR Foundation files appeal in Colorado Bridge Enterprise lawsuit

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Guest Columns

VANDE KROL: BRIDGES OVER LEGALLY TROUBLED WATERS

2/7/2014

There have been violations of basic common sense and principles of good government,” said TABOR Foundation Chairman Penn Pfiffner. “The concept and construct of this dishonest and devious scheme must not stand.”

A Colorado organization has filed an appeal to overturn a Denver District Court finding about the Taxpayer’s Bill of Rights (TABOR). The TABOR Foundation, whose mission includes protecting the constitutional amendment that was initiated by the people, believes the trial court erred in finding that the State of Colorado’s Bridge Enterprise conforms to TABOR.

In 2010, the legislature created the Colorado Bridge Enterprise to repair and maintain bridges. The CBE was called an “enterprise” so it could issue debt without a vote of the people, as is otherwise required by TABOR. The CBE already has issued $300 million in debt and plans more. An enterprise is a government-owned, self-supporting business, which is exempt from TABOR restrictions. The legislature also authorized the CBE to impose a new charge on vehicle registrations. The charge, known as the bridge safety surcharge, was designated for repair and maintenance of state owned bridges. But the CBE had a problem — because the charge is not a fee for service, it looked like a tax that would require a vote of the people. Disinclined to allow Colorado’s Constitution to stand in the way, the CBE called it a fee and hoped the label alone would be enough to avoid a vote of the people.

In May 2012, the TABOR Foundation sued to reverse the tax and stop the issuance of more debt (the CBE plans to sell up to $1 billion in bond debt). The arguments presented in the lawsuit fall into two categories: that the fee is actually a tax, and that the CBE is not a qualified enterprise and cannot issue debt without a vote of the citizens of Colorado.

If the bridge surcharge survives the legal challenge, the courts will have established a method by which government can fund most anything by creating enterprises, assessing fees and issuing debt. They will have found a method to strip Coloradans of their constitutionally protected rights under TABOR. Continue reading →
Oct 25

TABOR group sues 2 special districts — RTD, SCFD — over new tax

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By Monte Whaley

The Denver Post

The nonprofit TABOR Foundation is suing to stop the Regional Transportation District and the Scientific and Cultural Facilities District from collecting sales tax on food, beverages, cigarettes, advertising materials and food containers.

The foundation filed a request for preliminary injunction Thursday in Jefferson County District Court, asking that the districts be blocked from collecting the tax starting Jan. 1, as allowed by a new state law.

House Bill 1272 lifted exemptions on items the districts could tax. Previously, sales of food, beverages, cigarettes, advertising materials and food containers were off limits to RTD and SCFD.

The tax is expected to net $2.7 million for RTD and $270,000 for SCFD next year, according to the complaint.

The TABOR Foundation — formed to protect and enforce the Taxpayer’s Bill of Rights, a state constitutional amendment that requires a vote of the people to increase taxes — says the legislature violated TABOR by enacting a new tax without voter approval.

“The legislature seems to have forgotten there is a part of the constitution called TABOR, and we are hoping to remind them that the Taxpayer Bill of Rights does exist,” said Jim Manley, of the Mountain States Legal Foundation, which filed the complaint on behalf of the foundation.

Manley said voters should get to decide whether RTD and SCFD can expand their tax base. “All we are asking is for the voters to weigh in on this.”

Supporters say the tax is not new, but merely an expansion of the till the districts are allowed to dip into. It also simplifies the tax-collection process and makes the accounting more accurate, RTD said.

“We see it as simply aligning the tax base of the special district with the state tax base,” SCFD executive director Peg Long said.

Read more: TABOR group sues 2 special districts — RTD, SCFD — over new tax – The Denver Post http://www.denverpost.com/breakingnews/ci_24379305/tabor-group-sues-2-special-districts-rtd-scfd#ixzz2imeezy4O 
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Oct 24

TABOR Foundation vs. RTD

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Issue:
Whether the General Assembly can circumvent TABOR by expanding the taxing authority of RTD and SCFD without voter approval.

Plaintiff:
TABOR Foundation

Defendants:
Regional Transportation District, Scientific and Cultural Facilities District, and the Colorado Department of Revenue

Court:
Colorado District Court for Jefferson County, 2013CV31974

In the 2013 legislative session, the Colorado General Assembly enacted HB13-1272, which unlawfully authorizes the Regional Transportation District (“RTD”) and the Scientific and Cultural Facilities District (“SCFD”) to levy new sales and use taxes on food, beverages, cigarettes, advertising materials, and food containers. These new taxes will be levied by RTD and SCFD, beginning January 1, 2014.  Continue reading →

Oct 19

TABOR lawsuit: Suthers vs. Skaggs on Colorado PBS show

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Attorney General John Suthers and former Congressman David Skaggs. (Provided by C.L. Harmer)

Attorney General John Suthers and former Congressman . (Provided by C.L. Harmer)

Colorado Attorney General John Suthers and former Congressman David Skaggs tonight will discuss the lawsuit, aimed at upending the constitutional amendment that strictly controls spending and taxation.

Suthers, a Republican, and Skaggs, a Democrat, are scheduled to appear on Rocky Mountain Public Broadcasting System’s Colorado Quarterly program hosted by RMPBS President Doug Price. It airs at 7:30 p.m.

The lawsuit was filed in 2011 against Democratic Gov. , in his capacity as governor, challenging the constitutionality of the 1992 voter-approved Taxpayer’s Bill of Rights. Plaintiffs said TABOR, put on the ballot by anti-tax advocate , takes power away from state and local elected officials. Skaggs is one of the attorneys representing the nearly 35 plaintiffs, comprised mostly of Democrats but including former state Sen. , R-Lakewood, and former state Rep. Bob Briggs, R-Westminster.

Suthers’ office, which defends the governor’s office, argued that the plaintiffs did not have legal standing to sue, saying a federal court “is not a forum for rehashing political arguments” but the U.S. District Court in August 2012 allowed the lawsuit to move forward. Suthers appealed that decision, which was heard last month by the U.S. Tenth Circuit Court of Appeals in Denver. No decision has been made yet.

The Denver Post
Lynn Bartels

http://blogs.denverpost.com/thespot/2013/10/18/tabor-suthers-skagg/101780/

Sep 30

Colorado fights off challenge to ‘Taxpayer’s Bill of Rights’

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A court is weighing whether Colorado lawmakers should have more power to raise taxes.

A challenge to Colorado’s constitutional limits on spending and taxation was in federal court this week, with plaintiffs arguing the “Taxpayer’s Bill of Rights” encroaches on the legislature’s ability to raise taxes on its own.

The lawsuit, filed in 2011, pits a host of former state lawmakers and high-profile attorneys against a 1992 amendment to the state constitution which limits spending — even requiring refunds to taxpayers in cases of surplus — and also requires public votes on tax increases. It’s the latter requirement that has some lawmakers crying foul that TABOR “arrogates” their power to tax.

“Without the power to tax there is no effective government,” argued plaintiffs’ attorney David Skaggs at a hearing Monday, according to the Associated Press.

While some lawsuits argue nuanced legal theories, TABOR foes go for the constitutional jugular: the U.S. Constitution guarantees states a “republican” form of government, and TABOR’s referendum requirement tips the scale too far toward direct democracy.

“Frustration with the work of legislatures, whether federal or state, may indicate a need for representative institutions to be more effective, but that frustration does not justify or permit resorting to direct democracy,” reads the lawsuit. Continue reading →

Sep 30

Voters must beware the pitfalls of supporting Amendment 66

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Route 66 is a famous highway; Amendment 66 is a fiscal dead end, taking over a billion dollars yearly in new state taxes. Here are three strikes against 66 almost no one knows:

The first is their bogus ballot title. TABOR (the Taxpayer’s Bill of Rights) requires a tax increase ballot title begin, “Shall state taxes be increased ($x) annually…?” When the state title board first met, the fiscal estimate was just under $1.5 billion yearly.

A cost 50 percent above their failed 2011 tax hike would be fatal, so the teachers union sought a rehearing. The state agreed to lower the tax estimate one-third, to just below $1 billion. It declared that reduction corrected an innocent ($500 million) mistake.

Would a private analyst making such a “mistake” keep his job? No. Should those who deceive voters get huge pay raises? No. Are they morally fit to teach your children? No.

The second scam is the ballot title omission. State law requires ballot titles list major features fairly. Tax payers love TABOR; tax spenders despise it. So state employees hid the fact that 66 repeals TABOR’s constitutional guarantee of a uniform income tax (equal protection, the same for everyone). Today’s rate is 4.63 percent of federal taxable income. 66 establishes two tax rates. Continue reading →