TABOR Foundation v. Regional Transportation District

COLORADO COURT OF APPEALS 2016COA102
Court of Appeals No. 15CA0582
City and County of Denver District Court No. 13CV854
Honorable A. Bruce Jones, Judge
TABOR Foundation, a Colorado non-profit corporation; and Penn Pfiffner,
Plaintiffs-Appellants,
v.
Regional Transportation District; Bill James, Director of the Regional
Transportation District; Barbara Deadwyler, Director of the Regional
Transportation District; Angie Rivera Malpiede, Director of the Regional
Transportation District; Jeff Walker, Director of the Regional Transportation
District; Claudia Folska, Director of the Regional Transportation District; Tom
Tobiassen, Director of the Regional Transportation District; Gary Lasater,
Director of the Regional Transportation District; Kent Bagley, Director of the
Regional Transportation District; Judy Lubow, Director of the Regional
Transportation District; Larry Hoy, Director of the Regional Transportation
District; Paul Daniel Solano, Director of the Regional Transportation District;
Lorraine Anderson, Director of the Regional Transportation District; Natalie
Menten, Director of the Regional Transportation District; Bruce Daly, Director
of the Regional Transportation District; Charles Sisk, Director of the Regional
Transportation District; Scientific and Cultural Facilities District; Kathryn
Spuhler, Director of the Scientific and Cultural Facilities District; Kathy
Kucsan, Director of the Scientific and Cultural Facilities District; Dan Hopkins,
Director of the Scientific and Cultural Facilities District; Peggy Lehmann,
Director of the Scientific and Cultural Facilities District; Joseph Arcese,
Director of the Scientific and Cultural Facilities District; Damon Barry, Director
of the Scientific and Cultural Facilities District; Robert Grant, Director of the
Scientific and Cultural Facilities District; Rob Johnson, Director of the
Scientific and Cultural Facilities District; Harold Logan, Jr., Director of the
Scientific and Cultural Facilities District; Shepard Nevel, Director of the
Scientific and Cultural Facilities District; Elaine Torres, Director of the
Scientific and Cultural Facilities District; Marjorie Long, Director of the
Scientific and Cultural Facilities District; Colorado Department of Revenue;
and Barbara Brohl, Executive Director of the Colorado Department of Revenue,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE WEBB
Ashby and Harris, JJ., concur
Announced June 30, 2016
Mountain States Legal Foundation, Jeffrey W. McCoy, Steven J. Lechner,
Lakewood, Colorado, for Plaintiffs-Appellants
Marla L. Lien, Mindy Marie Swaney, Denver, Colorado, for Defendant-Appellee
Regional Transportation District
Norton & Smith, P.C., Charles E. Norton, Denver, Colorado, for Defendant-
Appellee Scientific and Cultural Facilities District
Cynthia H. Coffman, Attorney General, Robert H. Dodd, Jr., Senior Assistant
Attorney General, Terence C. Gill, Senior Assistant Attorney General, Alison K.
Blair, Senior Assistant Attorney General, Denver, Colorado, for Defendant-
Appellee Colorado Department of Revenue
¶1 This case arose under the Taxpayer’s Bill of Rights (TABOR),
Colo. Const. art. X, § 20. Plaintiffs, TABOR Foundation and Penn
Pfiffner (the Foundation), appeal the summary judgment, entered
on stipulated facts, in favor of defendants, Regional Transportation
District (RTD), Scientific and Cultural Facilities District (SCFD)
(collectively, the Districts), and the Colorado Department of
Revenue (DOR), holding House Bill (H.B.) 13-1272 constitutional.
¶2 To resolve the case, we must decide whether H.B. 13-1272
violates TABOR by failing to require that the Districts obtain voter
approval before collecting sales tax on items or categories not
previously taxed because those items or categories were subject to
statutory exemptions that H.B. 13-1272 removed. We conclude
that despite lacking an election requirement, because H.B. 13-1272
neither imposes a “new tax” nor constitutes a “tax policy change”
within the meaning of TABOR, it is constitutional. Therefore, we
affirm.
I. Background
A. TABOR
¶3 Colorado voters adopted TABOR in 1992. “TABOR limits the
state’s ability to levy new taxes or create new debts . . . .” Colo.
1
Union of Taxpayers Found. v. City of Aspen, 2015 COA 162, ¶ 11. It
requires advance voter approval before a district may collect “any
new tax, tax rate increase, . . . or a tax policy change directly
causing a net tax revenue gain to any district.” Colo. Const. art. X,
§ 20(4)(a).
B. Inconsistent State and District Taxation
¶4 RTD’s and SCFD’s enabling statutes grant them taxing power
coterminous with that of the state. See Ch. 248, sec. 1,
§ 32-13-105(1)(a)-(c), 1987 Colo. Sess. Laws 1255-56 (SCFD’s
enabling statute); Ch. 285, sec. 2, § 89-20-18(2)(a), 1973 Colo. Sess.
Laws 991-92 (granting RTD authority to tax); Ch. 231, sec. 1,
§ 89-20-18(1)(j), 1969 Colo. Sess. Laws 719 (RTD’s enabling
statute). But over time, as the General Assembly added and
removed tax exemptions, the items or categories subject to taxation
by the state and Districts became disparate.
¶5 As relevant here, the General Assembly removed the state
sales tax exemption for cigarettes most recently in 2009, but the
exemption remained in place for RTD and SCFD. See Ch. 354, sec.
1, § 39-26-706(1), 2009 Colo. Sess. Laws 1846 (temporarily
removing the cigarette exemption); see also Ch. 304, sec. 1,
2
§ 39-26-706(1)(a)-(b), 2013 Colo. Sess. Laws 1615 (permanently
removing the cigarette exemption). Thus, the state could collect
taxes on cigarettes beginning in 2009, but RTD and SCFD could
not.
¶6 Similarly, the General Assembly removed the exemptions for
direct mail advertising materials, candy, soda, and food containers
in 2010. See Ch. 5, sec. 1, § 39-26-102(15)(a)(I), 2010 Colo. Sess.
Laws 38 (direct mail advertising materials); Ch. 7, sec. 2,
§ 39-26-707(2)(d)(I), 2010 Colo. Sess. Laws 46 (candy and soft
drinks); Ch. 10, sec. 1, § 39-26-707(1)-(2), 2010 Colo. Sess. Laws
58-59 (food containers). Again, these exemptions remained in place
for RTD and SCFD.
C. H.B. 13-1272
¶7 To conform the disparate tax exemptions between the state
and the Districts, the General Assembly enacted H.B. 13-1272 in
2013. It granted Districts “the power to levy uniformly throughout
the district a sales tax at any rate that may be approved by the
board, upon every transaction or other incident with respect to
which a sales tax is now levied by the state[.]” § 32-9-119(2)(a),
C.R.S. 2015 (applying to RTD); § 32-13-107(1)(a), C.R.S. 2015
3
(applying to SCFD). Specifically, H.B. 13-1272 removed the
exemptions on candy, soft drinks, cigarettes, direct mail advertising
materials, and food containers for RTD and SCFD. The Districts
began collecting taxes on these categories of items in 2014. The
following table summarizes the effects of H.B. 13-1272:
Item Taxed by Taxed by Taxed by Taxed by
State pre- Districts State post- Districts
H.B. 13- pre-H.B. H.B. 13- post-H.B.
1272? 13-1272? 1272? 13-1272?
Advertising Yes, most No Yes Yes
Materials recently, as
of 2010.
Candy Yes, most No Yes Yes
recently, as
of 2010.
Cigarettes Yes, most No Yes Yes
recently, as
of 2009.
Food Yes, most No Yes Yes
Containers recently, as
of 2010.
Soft Drinks Yes, most No Yes Yes
recently, as
of 2010.
¶8 Neither RTD nor SCFD obtained voter approval after H.B.
13-1272 was enacted and before collecting taxes on these items or
categories of items.
4
D. This Action
¶9 The Foundation brought this action, alleging that the taxes
collected by RTD and SCFD under H.B. 13-1272 are subject to
TABOR’s “voter approval in advance” requirement because they
constitute a “new tax” and a “tax policy change directly causing a
net tax revenue gain to any district.” Colo. Const. art. X, § 20(4)(a).
¶ 10 The trial court disagreed, applied the unconstitutional beyond
a reasonable doubt standard, and granted the Districts’ motions for
summary judgment. It ruled on two grounds.
¶ 11 First, H.B. 13-1272 did not constitute a “new tax” under
TABOR. The court acknowledged that the General Assembly had
granted the Districts the power to collect a sales tax on all items
taxed by the state. Thus, while H.B. 13-1272 permitted the
Districts to collect taxes on items or categories of items that had not
been taxed before its enactment, “a change in the list of items that
are subject to sales tax does not constitute the creation of a new
tax. Rather, it is an adjustment — primarily of an administrative
nature — to an existing tax.”
¶ 12 Second, H.B. 13-1272 was not a “tax policy change.” The
court accorded “policy” its ordinary meaning: “a high level overall
5
plan embracing the general goals and acceptable procedures
especially of a governmental body.” Then it held that “the
administrative simplification contemplated by [H.B. 13-1272], on its
face, is not a change in tax policy since it is not ‘a high level overall
plan.’”
II. Summary Judgment Standard
¶ 13 An appellate court reviews de novo a trial court’s order
granting summary judgment. Colo. Union of Taxpayers Found., ¶ 7.
Summary judgment is appropriate only when the pleadings,
depositions, answers to interrogatories, affidavits, and admissions
on file show there are no “genuine issue[s] as to any material fact
and that the moving party is entitled to a judgment as a matter of
law.” C.R.C.P. 56(c).
III. Whether the Trial Court Applied the Correct Legal Standard
¶ 14 The Foundation first contends that for three reasons, the trial
court should not have applied the “beyond a reasonable doubt”
standard to its claims. After examining each reason, we reject this
contention.
6
A. Law
¶ 15 An appellate court reviews de novo “whether the [trial] court
applied the correct legal standard.” Ledroit Law v. Kim, 2015 COA
114, ¶ 47.
¶ 16 Also, an appellate court examines the constitutionality of a
statute de novo. Dean v. People, 2016 CO 14, ¶ 8. Generally,
unconstitutionality must be proven beyond a reasonable doubt. Id.
B. Application
1. Whether TABOR Provides Its Own Interpretive Rule
¶ 17 The Foundation first argues that TABOR provides its own
interpretive rule, which supplants the beyond a reasonable doubt
standard: “[W]here multiple interpretations of [a TABOR] provision
are equally supported by the text . . . , a court should choose that
interpretation which it concludes would create the greatest restraint
on the growth of government.” Bickel v. City of Boulder, 885 P.2d
215, 229 (Colo. 1994).
¶ 18 Our supreme court has rejected a similar argument:
[T]his tenet of construction is not a refutation
of the beyond-a-reasonable-doubt standard,
but rather an interpretive guideline a reviewing
court may employ when it finds two separately
plausible interpretations of the text of article
7
X, section 20. A challenge to the
constitutionality of a state statute cannot be
resolved by relying on article X, section 20’s
tool of construction.
Mesa Cty. Bd. of Cty. Comm’rs v. State, 203 P.3d 519, 527 (Colo.
2009).
¶ 19 The Foundation does not offer an alternative reading of Mesa
County. Instead, it relies on TABOR Foundation v. Colorado Bridge
Enterprise, 2014 COA 106, ¶¶ 18-20, as supporting a different
approach. This reliance is misplaced.
¶ 20 True, under the “Standard of Review” heading, the division
repeated the above-quoted language of Bickel; it did not address the
beyond a reasonable doubt standard at all. Id. at ¶ 19. However,
because the division chose between two interpretations of TABOR,
see id. at ¶ 17 — rather than analyzing whether a statute was
unconstitutional under TABOR — addressing the beyond a
reasonable doubt standard would have been purposeless. Thus,
Colorado Bridge Enterprise does not carry the weight that the
Foundation places on it. And in any event, because “[w]e are bound
by the decisions of the Colorado Supreme Court[,]” Bernal v.
Lumbermens Mut. Cas. Co., 97 P.3d 197, 203 (Colo. App. 2003), we
8
could not rely on a court of appeals opinion to avoid our supreme
court’s decision in Mesa County.
¶ 21 Therefore, TABOR’s internal rule of construction does not
provide the standard of review for assessing whether a statute is
unconstitutional under TABOR.
2. Whether the Beyond a Reasonable Doubt Standard is
Fundamentally Flawed
¶ 22 The Foundation also invites us to abandon the beyond a
reasonable doubt standard altogether because it is “archaic and
undefined.” The Foundation relies on secondary authority and
decisions in some other jurisdictions.
¶ 23 To be sure, squaring the “heavy burden” to deem a statute
unconstitutional, People v. Vasquez, 84 P.3d 1019, 1022 (Colo.
2004) (citation omitted), with the de novo review applicable to
reviewing the constitutionality of statutes could seem anomalous,
see United Air Lines, Inc. v. City & Cty. of Denver, 973 P.2d 647, 656
(Colo. App. 1998) (Briggs, J., specially concurring) (noting the
standard “subtly mutates the accepted beginning point for a
constitutional analysis, creating an additional and final step which,
even when taken properly, is treacherous”), aff’d, 992 P.2d 41 (Colo.
9
2000), cited with approval in City of Fort Collins v. Colo. Oil & Gas
Ass’n, 2016 CO 28, ¶ 10.1
¶ 24 Even so, our supreme court has consistently applied the
beyond a reasonable doubt standard when determining whether a
statute violates TABOR. See, e.g., Huber v. Colo. Mining Ass’n, 264
P.3d 884, 889 (Colo. 2011); Mesa Cty., 203 P.3d at 527; Barber v.
Ritter, 196 P.3d 238, 247 (Colo. 2008); Zaner v. City of Brighton, 917
P.2d 280, 286 (Colo. 1996). And recently, albeit in a different
context, the court reiterated that a challenger must prove a statute
is unconstitutional beyond a reasonable doubt to prevail. See
Dean, ¶ 8.
1 While courts in every state presume legislation to be
constitutional, “many states find a statute unconstitutional under a
less deferential standard of review than does Colorado.” Laura J.
Gibson, Beyond a Reasonable Doubt: Colorado’s Standard for
Reviewing a Statute’s Constitutionality, 23 Colo. Law. 835, 837 (Apr.
1994). For example, the presumption of constitutionality does not
require Utah courts to accept any conceivable purpose for the
legislation. Id. at 837 & n.39 (citing Malan v. Lewis, 693 P.2d 661,
671 n.14 (Utah 1984)). And in Kansas, once the challenger
presents substantial, competent evidence that the statute is
unconstitutional, the burden shifts to the state to show that the
statute is constitutional. Id. at 837 & n.41 (citing Bingo Catering &
Supplies, Inc. v. Duncan, 699 P.2d 512, 517 (Kan. 1985)).
10
¶ 25 Therefore, we decline the Foundation’s invitation to disavow
the beyond a reasonable doubt standard when assessing whether a
statute is unconstitutional.
3. Whether the Foundation Can Avoid the Beyond a Reasonable
Doubt Standard by Purporting to Challenge Only the Districts’
Implementation of H.B. 13-1272, Not Its Text
¶ 26 Next, the Foundation tries to duck the reasonable doubt
standard entirely by asserting that it is not challenging the
constitutionality of H.B. 13-1272 at all. Instead, the Foundation
characterizes this case as challenging only the Districts’ “decisions
to levy and collect taxes . . . without first seeking voter approval.”
¶ 27 But a closer look at this characterization reveals its
assumption that while H.B. 13-1272 empowers the Districts to
collect taxes, they could defer doing so until — if ever — they
obtained voter approval. Accepting this assumption, the TABOR
violation does not inhere in H.B. 13-1272; it results from the
Districts collecting taxes without prior voter approval. But this
assumption cannot be reconciled with the allegations of the
complaint, the language of H.B. 13-1272, and its legislative history.
¶ 28 The Foundation’s complaint directly challenged the
constitutionality of H.B. 13-1272, alleging that it “unlawfully
11
authorizes RTD and SCFD to levy new sales and use taxes” and that
it “empower[s] [the Districts], without a vote of the people, to levy
taxes.” We reject the Foundation’s revisionist history on appeal.
¶ 29 Even if the Foundation could avoid the thrust of the
complaint, it cannot escape the language of H.B. 13-1272. As
discussed above in more detail, H.B. 13-1272 removes exemptions
for items and makes those items subject to the Districts’ sales tax.
See Ch. 354, secs. 6 & 8, §§ 32-9-119(2)(a), 32-13-107(1)(a), 2009
Colo. Sess. Laws 1847-49. H.B. 13-1272 does not include any
discretionary wording as to taxing these items, it is silent on
whether the Districts must hold an election before collecting taxes
on these items, and it does not mention TABOR at all. See Colo.
State Bd. of Accountancy v. Raisch, 960 P.2d 102, 104, 108 (Colo.
1998) (observing that a statute which, on its face, grants an
“absolute and unqualified . . . power” will not be interpreted to
imply a limitation in the absence of such language from the General
Assembly); contra City of Colo. Springs v. Securcare Self Storage,
Inc., 10 P.3d 1244, 1249 (Colo. 2000) (concluding that statute did
not grant absolute authority to act because it included limiting
language that action was “subject to the requirements of” other
12
statutes) (citation omitted); see also Bedee v. Am. Med. Response of
Colo., 2015 COA 128, ¶ 39 (noting that a court should not read
words into statutes that the General Assembly did not include).
¶ 30 And even overlooking the absence of any reference to
discretion, we would still not read H.B. 13-1272’s expansion of the
Districts’ taxing power as merely discretionary, pending an election,
for two reasons.
¶ 31 First, given the legislative intent to “simplify the
administration and collection” of taxes, Ch. 337, sec. 1, § 1(c), 2013
Colo. Sess. Laws 1964 (legislative declaration), reading in discretion
would frustrate the legislative purpose. This is especially so
because the Districts might seek — but never obtain — voter
approval, perpetuating the very disuniformity that H.B. 13-1272
sought to remove.
¶ 32 Second, the legislative history includes several references to
TABOR elections, see, e.g., Hearings on H.B. 13-1272 before the H.
Fin. Comm., 69th Gen. Assemb., 1st Sess. (Mar. 27, 2013); Hearings
on H.B. 13-1272 before the S. Fin. Comm., 69th Gen. Assemb., 1st
Sess. (Apr. 16, 2013). These references strongly suggest that the
General Assembly’s silence concerning such elections must have
13
been a choice, not mere inadvertence. This suggestion strengthens
because other legislation has conditioned action on holding
elections. See, e.g., Ch. 118, sec. 163, § 32-9-119(2)(a), 1992 Colo.
Sess. Laws 910 (“[T]he district . . . after approval by election . . .
shall have the power to levy uniformly throughout the district a
sales tax . . . .”) (emphasis added); see also Safeco Ins. Co. v.
Westport Ins. Corp., 214 P.3d 1078, 1079 (Colo. App. 2009)
(Because the General Assembly “certainly knew how to deal with
interest in this area . . . we cannot infer that it was through mere
inadvertence that it failed to provide for the interest that [Safeco]
seeks.”) (citation omitted).
¶ 33 Thus, the Foundation’s constitutional claims attack the text of
H.B. 13-1272, not merely the Districts’ implementation of the tax
without voter approval. And because the Foundation directly
attacks H.B. 13-1272, to prevail it must prove unconstitutionality
beyond a reasonable doubt. See, e.g., Mesa Cty., 203 P.3d at
526-28 (assessing whether statutes violated TABOR under the
beyond a reasonable doubt standard).
¶ 34 Having rejected all of the Foundation’s arguments against the
beyond a reasonable doubt standard, we take up its alternative
14
assertion that the trial court misinterpreted and then misapplied
this standard.
IV. Whether the Trial Court Misinterpreted the Beyond a
Reasonable Doubt Standard
¶ 35 The Foundation argues that even if the beyond a reasonable
doubt standard applies, the trial court misinterpreted it by
requiring evidence that “the Legislature drafted a law using
language designed to circumvent the requirements of TABOR, i.e., a
tax policy change disguised as administrative simplification.”
¶ 36 The trial court did not cite any authority for this view of the
beyond a reasonable doubt standard, defendants have not cited
any, and we can find none. This lack of authority dissuades us
from adopting the trial court’s position. But declining to do so
leaves unanswered another question: Just what type of proof do
Colorado courts require before deeming a statute unconstitutional
beyond a reasonable doubt?
¶ 37 To be sure, many Colorado cases only repeat that “[o]ne who
raises a constitutional challenge must prove, beyond a reasonable
doubt, that the statute impairs a right granted by the . . .
Constitution.” People v. Wood, 999 P.2d 227, 229 (Colo. App.
15
2000). But recently, our supreme court explained that a court will
not strike down a statute “unless a ‘clear and unmistakable’ conflict
exists between the statute and a provision of the Colorado
Constitution.” Colo. Ethics Watch v. Indep. Ethics Comm’n, 2016 CO
21, ¶ 14 (quoting Coffman v. Williamson, 2015 CO 35, ¶ 13). In
other words, to hold a statute unconstitutional beyond a reasonable
doubt, the constitutional flaw must be so clear that the court can
act without reservation. See Cantina Grill, JV v. City & Cty. of
Denver Cty. Bd. of Equalization, 2012 COA 154, ¶ 15 (explaining
that the “delicate duty” of declaring a statute unconstitutional
should not be taken “unless the conflict between the law and the
constitution is clear and unmistakable”) (citation omitted), aff’d,
2015 CO 15.
¶ 38 Thus, we conclude that the trial court misinterpreted the law.
Yet, answering this substantive question and identifying the correct
standard still leaves a procedural question unresolved: Should we
remand with direction or apply the standard ourselves? We choose
the latter for reasons rooted in de novo review.
¶ 39 Because we review both the constitutionality of statutes and
summary judgments de novo, and here all parties stipulated to the
16
relevant facts, we do not discern any benefit in remanding for the
trial court to correctly apply the beyond a reasonable doubt
standard to those stipulated facts, subject to our again reviewing its
decision de novo in the event of a second appeal. Cf. Kirkmeyer v.
Dep’t of Local Affairs, 313 P.3d 562, 568 (Colo. App. 2011)
(“[J]udicial economy would not be served by leaving [the statute’s]
interpretation to the Board on remand, subject to our de novo
review in a later appeal, and we decline to do so.”); see also Brown
v. J.B. Hunt Transp. Servs., Inc., 586 F.3d 1079, 1087 n.6 (8th Cir.
2009) (“Because relevant facts are undisputed and complete,
remand to the district court would only further delay the ultimate
disposition of [the party’s] claim . . . .”).
¶ 40 For these reasons, we address the Foundation’s constitutional
claims by asking whether any of the alleged constitutional defects
in H.B. 13-1272 is so clear that we can hold it unconstitutional
without any principled reservation.
V. Whether H.B. 13-1272 Violates TABOR Beyond a Reasonable
Doubt
¶ 41 The Foundation contends that because the trial court
improperly concluded that H.B. 13-1272 does not impose either a
17
“new tax” or a “tax policy change” causing a net revenue increase,
the court erred in holding that TABOR’s voter approval requirement
was not triggered. Colo. Const. art. X, § 20(4)(a). The new tax
contention presents a close question that leads us to look further
and also consider prior voter approval. We conclude that although
H.B. 13-1272 does not impose a new tax, even if it did, the Districts
had received prior voter approval. We further conclude that H.B.
13-1272 does not constitute a tax policy change.
A. “New Tax”
¶ 42 The Foundation asserts that removing exemptions on certain
items or categories of items under H.B. 13-1272 resulted in a new
tax under TABOR because H.B. 13-1272 authorized the Districts to
collect taxes on items or categories of items for the first time. The
Districts counter that because they have long had broad authority
to tax, removing limited exemptions is not akin to imposing new
taxes.
1. H.B. 13-1272 Did Not Create a New Tax
a. Law
¶ 43 TABOR does not define “new tax.” Nor has any Colorado case
done so.
18
¶ 44 Instead, our supreme court has examined the purpose behind
the statute at issue to determine whether it created a tax for TABOR
purposes. See Barber, 196 P.3d at 249 (“[W]hen determining
whether a charge is a fee or a tax, courts must look to the primary
or principal purpose for which the money was raised, not the
manner in which it was ultimately spent.”). In Barber, the court
explained that because the “primary purpose” of the statute there
was “not to raise revenue for general governmental expense, any
production of such revenue can only be ‘incidental,’ and does not,
therefore, constitute a tax.” Id. at 252.2
b. Application
¶ 45 By any fair reading, the primary purpose of H.B. 13-1272 —
as demonstrated by both its structure and its legislative history —
was not to raise revenue.
¶ 46 Beginning with the structure of the bill, in addition to
removing exemptions on some categories of items, it also added tax
exemptions on vending machine food, machinery, machine tools,
low-emitting power vehicles, power sources, and parts used for
2 We do not suggest that a purposive definition of “new tax” would
resolve all possible cases, such as one where the asserted purpose
was not to generate revenue, but that was the obvious effect.
19
converting such power sources. See Ch. 337, sec. 2,
§ 32-9-119(2)(a)(I), 2013 Colo. Sess. Laws 1965 (vending machine
food, machinery, and machinery tools); Ch. 337, sec. 3,
§ 32-13-107(1)(a)(I), (III), 2013 Colo. Sess. Laws 1965 (same); sec. 2,
§ 32-9-119(2)(a)(II), 2013 Colo. Sess. Laws at 1965 (low-emitting
power vehicles, power sources, or parts used for converting such
power sources); sec. 3, § 32-13-107(1)(a)(II), 2013 Colo. Sess. Laws
at 1965 (same). Thus, while H.B. 13-1272 expanded the Districts’
ability to tax certain categories of items, the Districts were also
precluded from taxing other categories of items under H.B.
13-1272.
¶ 47 The legislative declaration accompanying H.B. 13-1272 also
shows that the purpose of the legislation was not to raise revenue.
See sec. 1, § 1(c), 2013 Colo. Sess. Laws at 1964 (“[T]he intended
purpose of the tax expenditures in this act is to simplify the
administration and collection of sales and use tax for [RTD and
SCFD].”). And during the enactment process, legislators reiterated
that the bill was intended only to streamline the Districts’ collection
of taxes, not to generate revenue. See, e.g., Hearings on H.B.
20
13-1272 before the H. Fin. Comm., 69th Gen. Assemb., 1st Sess.
(Mar. 27, 2013).
¶ 48 Yet, the funds transfer at issue in Barber — from special cash
funds to the general fund — did not create any new tax, but only
removed limitations on spending the transferred funds. See Barber,
196 P.3d at 248-52. Indeed, the court also concluded the funds
were not taxes at all, but rather were properly characterized as fees.
See id. And here, everyone would agree — as the Foundation points
out — that the Districts are collecting taxes not previously
assessed. For this reason, we look beyond Barber.
¶ 49 Aside from the structure and legislative purpose of H.B.
13-1272, looming large over every TABOR analysis is the caution
against interpreting TABOR in a way that would “cripple the
government’s ability to function.” Mesa Cty., 203 P.3d at 529; see
also Barber, 196 P.3d at 248 (“[W]e are especially mindful of the
cautious line we have drawn to reasonably interpret [TABOR] and
maintain the government’s ability to function efficiently.”). Applying
that principle here, to hold that removing exemptions requires an
election under TABOR would hamper the General Assembly’s ability
to administer taxation efficiently.
21
¶ 50 Given all this, we conclude that H.B. 13-1272 did not impose a
new tax for TABOR purposes. And because H.B. 13-1272 did not
impose a new tax, the Districts were not required to hold another
election before imposing taxes under it. Yet, recognizing that the
question is close, we also consider whether, if it did impose a new
tax, the Districts had prior voter authorization without holding
another election.
2. Even if H.B. 13-1272 Created a New Tax, the Districts’ Ballot
Measures Granted Them Authority to Collect Taxes on the Items for
Which H.B. 13-1272 Removed Exemptions
¶ 51 A division of this court has held that an election is not
required if voters approved the new tax in advance. See Bruce v.
Pikes Peak Library Dist., 155 P.3d 630, 632 (Colo. App. 2007) (“A
pre-TABOR election can serve as ‘voter approval in advance’ for a
post-TABOR mill levy increase.” (quoting Colo. Const. art. X,
§ 20(4))). In Bruce, voters approved a mill levy ceiling in advance,
and while the mill levy rate increased and decreased several times
after the election, the rate never exceeded the limit approved by the
voters. See id.
¶ 52 We consider Bruce well-reasoned and apply it to decide
whether RTD or SCFD voters provided prior approval to tax the
22
items or categories of items for which H.B. 13-1272 removed
exemptions.
a. RTD
¶ 53 Recall that the General Assembly granted RTD the authority to
tax coterminous with the state. See § 89-20-18(2)(a), 1973 Colo.
Sess. Laws at 991-92. In 1973, RTD voters permitted the district to
collect a sales tax on “every taxable transaction.” But did this grant
of authority also permit RTD to impose a sales tax on “every taxable
transaction, now and in the future”?
¶ 54 Colorado courts have held that ballot measures should be
interpreted like statutes. See, e.g., Huber, 264 P.3d at 889 (“We use
the general rules of statutory construction in construing
citizen-initiated measures.”). And statutes worded in the present
tense are interpreted to express the future tense as well. § 2-4-104,
C.R.S. 2015; see Schwankl v. Davis, 85 P.3d 512, 515 (Colo. 2004)
(noting that “crime being committed” in statute “includes present as
well as future crimes”) (emphasis added).
¶ 55 Interpreting the 1973 ballot like a statute, then, in 1973 the
voters granted RTD authority to collect taxes on “every taxable
transaction, now and in the future.” After 1973, the state removed
23
exemptions on candy, soft drinks, cigarettes, direct mail advertising
materials, and food containers. But because the voters had already
granted RTD the authority to tax taxable transactions in the future
— and because the sale of items in the categories for which H.B.
13-1272 removed exemptions became taxable transactions in the
future by the state — the 1973 ballot provided prior voter approval
to RTD.
¶ 56 True enough, the 1973 RTD ballot set a thirty-year maturity
date for the bonds issued under that measure. But no Colorado
case, and very limited out-of-state authority, addresses whether a
ballot becomes ineffective once the underlying financing has
expired. Because many ballot measures may have temporal
limitations tied to the terms of the financing subject to approval,
“[s]uch a significant expansion of precedent . . . is more properly the
province of our supreme court.” Neher v. Neher, 2015 COA 103,
¶ 66.
¶ 57 In sum, even if H.B. 13-1272 imposed new taxes, because RTD
voters had given their prior approval, another TABOR election was
not constitutionally required.
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b. SCFD
¶ 58 The General Assembly also granted SCFD authority to tax
coterminous with that of the state. See § 32-13-105(1)(a), 1987
Colo. Sess. Laws at 1255. And in 1994, SCFD voters granted SCFD
authority to continue to impose taxes “currently levied and
collected” by SCFD.3
¶ 59 For the reasons explained above with regard to RTD, we also
interpret the 1994 ballot measure as granting SCFD the power to
impose taxes “currently, or in the future, levied and collected.” So
interpreting the 1994 ballot, the SCFD voters granted the district
prior approval to collect taxes under H.B. 13-1272. And as with
RTD, because SCFD voters had granted prior authority to collect
taxes that SCFD would impose in the future, an election was not
required, even if H.B. 13-1272 created a new tax.
¶ 60 In the end, we reiterate the “high burden” to declare a statute
unconstitutional. Huber, 264 P.3d at 889. Although neither the
new tax nor the prior voter approval question is free from doubt,
3 SCFD’s first ballot measure in 1988 did not reference tax
collection. Thus, we do not assess whether this measure granted
SCFD prior voter approval to collect taxes on the categories or items
for which H.B. 13-1272 removed exemptions.
25
this standard requires us to reject constitutional challenges in close
cases. See Bormann v. Bd. of Supervisors, 584 N.W.2d 309, 322
(Iowa 1998) (acknowledging the rule “finding constitutionality in
close cases”).
B. “Tax Policy Change”
¶ 61 The Foundation also asserts that by eliminating exemptions
on certain items or categories of items, H.B. 13-1272 effected a tax
policy change directly causing a net tax revenue gain to the
Districts. In contrast to the new tax question, this question is not
close.
¶ 62 As with “new tax,” TABOR does not define “tax policy change.”
¶ 63 The trial court defined this phrase using a dictionary definition
of “policy”: “a high[ ]level overall plan embracing the general goals
and acceptable procedures especially of a governmental body.”
Merriam-Webster Online Dictionary, https://perma.cc/ZAG7-C37P;
see Roalstad v. City of Lafayette, 2015 COA 146, ¶ 34 (“[W]here, as
here, the statute does not define a term, the word at issue is a term
of common usage, and people of ordinary intelligence need not
guess at its meaning, we may refer to dictionary definitions in
determining the plain and ordinary meaning.”) (citation omitted);
26
see also Colo. Op. Att’y Gen. No. 96-01 (Feb. 27, 1996) (defining
“policy” as “the overall goal or object of government”).
¶ 64 This court primarily uses Webster’s Third New International
Dictionary (2002) (Webster’s 2002). See, e.g., Prospect 34, LLC v.
Gunnison Cty. Bd. of Cty. Comm’rs, 2015 COA 160, ¶ 14. It
contains a similar definition for policy: “a projected program
consisting of desired objectives and the means to achieve them.”
Webster’s 2002 at 1754.
¶ 65 Applying these definitions, the Districts’ “high level overall
plan” could be understood one of two ways: funding their
operations based on a sales tax or imposing a sales tax broadly,
subject to a few exemptions. But under either iteration, H.B.
13-1272 did not change the Districts’ high level overall plan — after
the statute’s enactment, the Districts still impose a broad sales tax,
and this broad sales tax remains subject to a few exemptions. See
sec. 2, § 32-9-119(2)(a)(I)-(II), 2013 Colo. Sess. Laws at 1965
(adding exemptions to some categories of items); sec. 3,
§ 32-13-107(1)(a)(I)-(III), 2013 Colo. Sess. Laws at 1965 (same).
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Thus, the high level overall plan for the Districts has stayed
consistent: taxing a broad range of tangible items.4
¶ 66 For these reasons, we conclude that H.B. 13-1272 did not
constitute a tax policy change under TABOR.
VI. Attorney Fees
¶ 67 Because the Foundation was not a successful plaintiff, it is not
entitled to recover attorney fees under TABOR. See Colo. Const.
art. X, § 20(1); City of Wheat Ridge v. Cerveny, 913 P.2d 1110, 1115
(Colo. 1996).
VII. Conclusion
¶ 68 The summary judgment is affirmed.
JUDGE ASHBY and JUDGE HARRIS concur.
4 The Foundation also asserts that the Districts’ shift to tax parity
with the state constitutes a tax policy change. However, because
the Foundation did not raise this argument until its reply brief, we
need not address it. See Saint John’s Church in the Wilderness v.
Scott, 2012 COA 72, ¶ 9 n.3.
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