Aug 27

Aurora asks district judge to dismiss TABOR lawsuit

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Aurora, taxpayers face off in district court over taxing district for hotel project

BRIGHTON – The city of Aurora asked an Adams County District Court judge on Monday to dismiss a lawsuit that claims the city violated TABOR with parts of a multimillion-dollar incentive package for a hotel developer.

“The project has been held up pending the litigation and we are seeking the dismissal of those claims,” said attorney Daniel Lynch with the Denver law firm Kutak Rock.

Lynch said there are no factual allegations in the complaint that was filed against the city and the Aurora Urban Renewal Authority in March. He said the court should be able to make a ruling on the legal interpretation of the Taxpayer’s Bill of Rights and dismiss the case.

Attorney Mark Grueskin, who is representing two taxpayers who filed the lawsuit, said several facts are in dispute and asked that the remaining claims move forward.

At issue is whether the city of Aurora violated TABOR when it allowed a single voter representing a corporate landowner to vote to raise taxes in a special election.

Under a June 2011 incentive agreement approved by the Aurora City Council, the increased tax revenue would go to the developer to pay for construction of a conference center and other infrastructure surrounding the Gaylord Rockies Hotel development in northern Aurora by Denver International Airport.

The city in a single meeting in June 2011 established an ordinance allowing 30 percent of the voters in any geographic area to petition the city for creation of an “enhanced taxing area.”

If the city approved the petition, the new taxing area also could petition for a tax increase.

In the case of the Gaylord Rockies development, the owner of land proposed for the project appointed a representative to vote on a 2 percent increase in lodging tax in the new enhanced taxing area and a 6.25 percent increase in the admissions tax (a tax paid on tickets to events).

Both taxes were approved by a single voter and the revenue from those taxes was guaranteed to the developer in an incentive agreement.

Grueskin said TABOR – a voter-approved constitutional amendment – requires a vote of the entire electorate in Aurora and does not allow for the creation of a special voting district to the exclusion of every other Aurora voter.

“Why is it that this one landowner had some sort of claim to vote?” Grueskin asked. “The point of TABOR is not to protect the middleman, it’s to protect the person paying the tax.”

Lynch said the city complied with TABOR by having an election that included all of the voters in the enhanced taxing area.

Adams County District Court Judge Ted Tow said he might issue a ruling by Friday on the motion to dismiss the remaining claims in the lawsuit.

By Megan Schrader Published: August 26, 2014
Contact Megan Schrader: 286-0644

Twitter @CapitolSchrader

Read more at http://gazette.com/aurora-taxpayers-face-off-in-district-court-over-taxing-district-for-hotel-project/article/1536251#X1b9bVd7kC9hSkj4.99

 

http://gazette.com/aurora-taxpayers-face-off-in-district-court-over-taxing-district-for-hotel-project/article/1536251

Aug 14

CORPORATE WELFARE: Gaylord Hotel Project Benefits from Fishy Tax Scheme

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Aurora politics have been thrust into the spotlight based on reports that a new hotel tax scheme is fostering corporate welfare on a massive scale.

The controversial Gaylord Hotel project in Aurora is benefiting from a special tax district created by the Aurora City Council.  The catch is that only a single voter has approved the tax increases in this special district, and all the future revenue has been awarded to the Gaylord project’s developer.  The whole thing sounds fishy by any measure.

The Colorado Springs Gazette explains further: 

The city of Aurora invented an incentive tool called an enhanced taxing area to levy higher admissions and lodging taxes, imposed a general improvement district with a 40-mill property tax levy, and declared agricultural land blighted to use urban renewal tax incentives.

Critics say the Aurora deal is an unprecedented giveaway of taxpayer money to a private developer over a 30-year period. [Peak emphasis]

Continue reading →

Jul 24

Penn’s take on Kerr order denying rehearing en banc

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TABOR Directors and friends,

We will not see a review by (appeal to) the entire US 10th Circuit Court of Appeals (en banc) in the federal case to overturn the Taxpayer’s Bill of Rights.

The next logical step is for the Defendant to ask the US Supreme Court to hear an appeal that the case should not proceed to the trial phase because the substance of the case does not fall within the judicial branch to decide.  The Solicitor General’s office this morning confirmed in a telephone call with me that such a filing is contemplated.

Luke Wake and his team at NFIB are ready to help out once again.  See his message below.

The dissents from the 10th Circuit Court are telling and a very important development in proceeding to the next step.  They follow the very brief ruling in the attachment.

Our TABOR Foundation is committed to seeing this through as far as we need to, and Board approval is already in place.  I’ll keep you informed as I learn more.

Penn Pfiffner

I’ve been in communication with each of you about the Kerr v. Hickenlooper case, wherein a handful of ideologically motivated litigants are challenging the constitutionality of the Colorado Taxpayer Bill of Rights (TABOR). TABOR was an initiative approved by Colorado voters in the early 1990s, which gives the citizens a right to vote on new taxes. NFIB was very supportive of the reform then and the NFIB Legal Center is now leading its defense (along with TABOR Foundation).
>
> As you recall, I previously explained that the Tenth Circuit federal court of appeal recently decided to allow a “Guarantee Clause” challenge to proceed against TABOR. And I’ve said before, this would open Pandora’s box for challenges to any constitutional amendment restraining the legislature’s tax and spend powers, or potentially any amendment limiting the state’s police powers.  We were hopeful that the Tenth Circuit would review the decision because it is binding on all Tenth Circuit states, and because it provides persuasive authority that could be invoked by litigants challenging taxpayer protections in other states as well. Unfortunately the Tenth Circuit denied Governor Hickenlooper’s petition for en banc review; however, there were three very strong dissenting opinions (see attached). These dissents largely echoed the concerns we raised in our original amicus brief.
>
> Given the force of these three dissents, I should think the State is in as good a position as possible in pursuing a petition for certiorari in the U.S. Supreme Court. When considering whether to take a case the Supreme Court asks two questions: (1) Does this decision create a conflict between federal circuits, or does it expressly conflict with a previous Supreme Court decision? (2) Does the case raise an issue of national concern? Both can be answered in the affirmative.
>
> Early in the 20th Century, the Supreme Court decided that a Guarantee Clause challenge to Oregon’s initiative process was precluded by the political questions doctrine. The Court has since repeatedly affirmed that Guarantee Clause cases are non-justiciable. In a 1992 opinion Justice Ginsberg held out the possibility that there may be some conceivable Guarantee Clause case that might be justiciable [we don’t necessarily disagree that there might be some case in the future], but no Court of Appeal has found one to date–except the Tenth Circuit in this case.
>
> The Tenth Circuit held that a Guarantee Clause challenge should be allowed to move forward despite the fact that the judges were not presently aware of any standard or principled rule for how the case might possibly be decided. This is highly problematic because it encourages litigation without principled rules.  And the case certainly raises an issue of national concern because–as discussed above–it invites challenges to potentially any state constitutional amendment, especially voter initiatives–and most especially taxpayer protections.
>
> We are now planning to file an amicus brief encouraging the Supreme Court to take the case. Each of you has indicated that your organization has tentatively agreed to join with us in this filing. Please let me know if you have any questions. My understanding is that the State will be filing its petition for certiorari sooner than later. So we may be filing as early as September. I will keep you all in the loop.
>
> Very best,
>
> -Luke

Jul 23

Colorado AG loses another round from Court of Appeals on TABOR lawsuit

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By Lynn Bartels

The Denver Post

John Suthers
Colorado Attorney General John Suthers (Kathryn Scott Osler, Denver Post file photo)

Attorney General John Suthers has lost his request to have the entire 10th U.S. Circuit Court of Appeals rehear a decision by a court panel that ruled Coloradans have a right to challenge the constitutionality of the Colorado Taxpayer’s Bill of Rights.

The 6-4 decision by the court marks another milestone in a legal fight over how Colorado conducts its most important functions. One of the court’s 11 judges recused himself.

Colorado voters in 1992 passed the TABOR amendment, which in part limits state spending and bars lawmakers from raising taxes without a vote of the people.

A lawsuit filed against Gov. John Hickenlooper in 2011 argues that by taking away lawmakers’ ability to tax, TABOR violates the U.S. Constitution’s guarantee that every state have a republican form of government.

Suthers questioned whether the plaintiffs had the right to sue, but was rebuffed by a U.S. District Court judge. A panel of Court of Appeals judges in March concurred with the lower court.

In its 49-page decision, the 10th U.S. Circuit panel in March noted the Supreme Court has held that members of a state legislature may have standing to sue in order to vindicate the “plain, direct and adequate interest in maintaining the effectiveness of their votes.”

It did not rule on the merits of the case.

Suthers then asked for the entire court to decide whether plaintiffs had standing and other issues.

The latest decision paves the way for a trial in U.S. District Court unless the attorney general successfully seeks review by the U.S. Supreme Court.

“We are of course gratified with this decision supporting the plaintiffs’ position that the case should be heard on its merits, and we look forward to that hearing in U. S. District Court,” one of the plaintiffs’ attorneys, Mike Feeley said, in a statement.

“Now, with the procedural objections resolved and three rulings all in the plaintiffs’ favor — one in U. S. District Court in 2012 and two this year by the 10th Circuit — we hope the case can proceed without delay and without an expensive additional appeal to the Supreme Court.”

David Blake, deputy attorney general for legal policy said, “We will be discussing the case with our client but we expect to seek Supreme Court review.”

The plaintiffs, who include some current state lawmakers such as Sen. Andy Kerr, D-Lakewood, and House Majority Leader Dickey Lee Hullinghorst, D-Boulder, claims that TABOR deprives them of their ability to perform the “legislative core functions of taxation and appropriation.” Moreover, the plaintiffs say explicitly that TABOR prevents them from doing their jobs.

Lynn Bartels: 303-954-5327, lbartels@denverpost.com or twitter.com/lynn_bartels

http://www.denverpost.com/news/ci_26196416/colorado-ag-loses-another-round-from-court-appeals

Jul 10

TABOR Committee & TABOR Foundation update

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Friends of the Taxpayer’s Bill of Rights,

Your TABOR Committee has a lot of irons in the fire, so I thought to take inventory:

The lawsuit alleging TABOR unconstitutional is Kerr vs. Hickenlooper.  You might recall that a 3-judge appellate panel of the federal 10th Circuit found the trial could proceed.  In a direct and forceful response, the Attorney General’s Office asked for an appellate review by the entire Court (“en banc”).  From the opening salvo:

This case involves questions of exceptional importance: whether three state legislatorsmay enlist the federal judiciary to take sides in their dispute with the state’s constitution, its governor, and its people over the proper role of direct democracy. A case involving more fundamental issues about the proper role of the federal courts in a system of horizontally and vertically divided power is hard to imagine. If the panel decision stands, this Circuit will be alone in giving federal judges the power to decide that some laws are unconstitutional because they are too democratic.

The panel reached two holdings, each of which is unique among the circuits and conflicts with Supreme Court precedent….. Continue reading →

Jul 10

TABOR vs Colorado Bridge Enterprise lawsuit update

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Friends of the Taxpayer’s Bill of Rights,
Yesterday, July 8, the Colorado Court of Appeals heard arguments by attorneys representing the TABOR Foundation (we are the appellant) and the Colorado Bridge Enterprise. The three-judge panel already had the written arguments (“briefs”) from both sides. This hearing was the last step before the Panel rules. The ruling will be issued “in due course” according to the Court, which means perhaps one to two months, although such timing can vary greatly. We are praying for the Appeals Court to overturn the trial court decision that allows this abomination to continue; we want the State to have to get prior voter approval to collect the bridge tax (“surcharge”) and to obtain prior voter approval before putting Colorado citizens $1 billion in debt.

Our attorney, Jim Manley of Mountain States Legal Foundation, once again did stellar work, demonstrating quick thinking and thorough preparation. The arguments were limited by rule to 15 minutes for each side. Here is a direct link to the 30-minute audio file: http://www.courts.state.co.us/Courts/Court_Of_Appeals/Oral_Arguments/Audio_Files/140708-13CA1621.wma