This week the lawsuit brought by the TABOR Foundation was heard in Denver District Court.  Judge Michael Martinez heard the testimony.  Attorney Jim Manley from Mountain States Legal Foundation was the principal representative for the Plaintiffs.  The Defendants were the Fund itself and the Colorado Transportation Commission.  The Attorney General’s office is responsible for defending the state government’s scheme, but contracted with attorney Mark Grueskin to handle the defense.

 The lawsuit asks the Colorado court to rule the issuance of debt without prior voter approval unconstitutional, under the Taxpayer’s Bill of Rights (TABOR).  As part of new vehicle charges approved during the Ritter administration, a “bridge safety surcharge” was designated as a fee, not a tax, and never offered as required for voter approval.  The Bridge Enterprise was established as a separate government business to repair bridges.  The scheme declares that because you might  drive over certain bridges you must pay a yearly toll, which is collected when you register your vehicle.  The “tolls” received as income allowed the Bridge Enterprise Fund to issue $300 million in bonds without prior voter approval, also required under TABOR.  Total debt may eventually be over $1 billion. For more information, see from A Citizen’s Budget for 2013 published by the Independence Institute.

 “The critical issue is whether this government can break trust with the citizens of Colorado,” said TABOR Foundation chairman Penn R. Pfiffner.  “Bridges need to be built and maintained, but elected and appointed officials can’t ignore the constitution as they pursue those goals.  Do it the right way.”

 Five witnesses; two heroes.

Two Plaintiff witnesses were Ms. Chris Sammons and Willie Wharton, who both explained that they had to register vehicles and therefore pay the bridge surcharge “fee,” although those specifically identified vehicles never cross a single Bridge Enterprise bridge.  Their testimony was calm, convincing, certain, occasionally humorous, and very credible.  Both traveled from Grand County, leaving very early to get to Denver on time.  Mr. Wharton had to spend one of his vacation days to do so, and the trial managed to fall during the very busiest time of his professional year.  Chris had to put aside the demands of her ranch and small businesses, and miss a school function for one of her two teenagers.

 Also called as witnesses were the chief financial officer of the Colorado Department of Transportation (and “coincidentally” the chief financial officer of the Bridge Enterprise Fund) and the executive director of the Colorado Department of Transportation (and “coincidentally” of the Bridge Enterprise Fund).  They had to answer how the supposedly separate entities operate and coordinate, and supply information about funding issues.

 The last Plaintiff witness was Paul Wingard, who provided expert information about bridge values.  Any TABOR enterprise is limited to taxpayer subsidy of 10 percent of annual income.  The calculated limit in this case is met only because most bridges were transferred from the Department of Transportation to the Bridge Enterprise at a value of zero.  Mr. Wingard is a professional engineer who has consulted in that profession, is a licensed contractor who built bridges, served as a senior administrator for a road and bridge department of a county government in Florida, and has knowledge of arm’s-length transfers of tolled bridges and highway systems.

 Defense witnesses were the contractor who assists the Bridge Enterprise with management and administration; a CDOT project manager who has been assigned to Bridge Enterprise construction projects, and the State Controller (actually just left that post two weeks prior).

 The Defense attorney spent time on minutiae that appeared not to speak to the issues in dispute.  Our attorney rose to object under “Relevance”; the Judge allowed the testimony, but indicted the objection could impact the weight he assigned to that evidence.  Hours were used explaining what goes into a bridge inspection and reviewing one bridge inspection report in excruciating detail.  How was it a relevant line of questioning?  At no point has the TABOR Foundation (or Committee) offered an opinion that bridges don’t deteriorate.  We understand that bridges need maintenance, rehabilitation and eventually replacement.  What is at issue instead is whether the government can break constitutional requirements to accomplish the tasks.

 Judge Martinez directed both parties to file post-trial briefs within 21 days.  From that point, we will have to wait for the Judge’s ruling.  Regarding another case involving a different judge, our lead attorney observed that he is waiting for a ruling a year later.  We don’t know about Judge Martinez’s intentions or workload, so simply have no basis to give you an expected date; just that it probably won’t follow hard on the heels of the final briefs.


May 17, 2013


Bob Foland


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