Voters Blindsided by Colorado Supreme Court

(This editorial was originally published in the Denver Post on 17 March 2009)

Voters Blindsided by Court

By Vincent Carroll

The English language, they say, is forever evolving. Unfortunately, the Colorado Supreme Court seems to think that it has been anointed to accelerate this process – that it is free to redefine words however it likes.

A few years ago, you may recall, our high court was miffed by the fact that the state constitution reserves the redrawing of congressional districts to the “general assembly.” How could the court get around this inconvenient obstacle to seizing control of redistricting itself? Why, of course: It could redefine “general assembly” to include the judiciary. And that, incredibly, is what the court chose to do – despite the tart observation by a dissenting justice that “The term neither needs nor permits . . . semantic gymnastics.”

Having enjoyed their stint on the trampoline, the justices returned this week to redefine the clear language of the Taxpayer’s Bill of Rights, too.

TABOR, which is also part of our constitution, specifically says voters must approve “any new tax, tax rate increase, mill levy above that for the prior year . . . or a tax policy change directly causing a net tax revenue gain to any district.”

Undeterred, the governor two years ago proposed and the legislature approved a measure freezing school mill levy rates rather than let them decline as they would have under the system then in place. The result: a $117 million windfall for the state in the first year, with larger paydays to come.

TABOR defenders naturally cried foul. Surely the rate freeze amounted to a “tax policy change directly causing a net tax revenue gain” to government. Surely the high court would require a popular election.

Surely not. It turns out that the common understanding of the phrase “tax policy change” is not shared by a majority of our justices. The 2007 legislation, the court declared, was “not a policy change, but an implementation of the waiver election” that all but a few school districts had held.

The audacity of the court’s claim is breathtaking. There is not one voter in this state who consciously approved the freezing of mill levy rates yesterday, today, and some day in the future when residential property values rebound and start to accelerate skyward again – not one who heard that issue debated at a local election. To the contrary, many were explicitly told their votes would have no impact on future taxes.

Voters merely agreed to forgo any surplus collected by their districts under the existing system, which did not foresee frozen rates.

“It is undisputed in this case,” noted Justice Allison Eid in her dissent, “that, prior to [the 2007 measure], state law prevented local school districts from keeping $117 million in excess revenues that they had collected after conducting waiver elections.” (That’s my emphasis.)

Just so. It is also undisputed – although the court majority naturally doesn’t mention it – that Colorado voters crushed a ballot amendment in 2003 that would have frozen property-tax rates. Amendment 32 would have adjusted the law in other ways, too, so the parallel with the current tax-rate freeze isn’t perfect, but the main reason the amendment failed is exactly on point: Voters feared that if they approved it, their taxes could soar as property values rose.

Given that history, it was strange – indeed, disorienting – to see Ritter, in reaction to the court decision, claim that “all we were doing was giving voice and respecting the will of the voters” by freezing property-tax rates.

The governor knows perfectly well that any measure proposing to put taxes on an escalator tied to inflating housing values – and thus squeeze homeowners whose incomes weren’t rising as fast – would stand no chance at the polls.

By all means, governor, exult in your victory before the court. But don’t pretend “that voters knew what they were doing in every one of those elections.”

Were they soothsayers, then, who foresaw Ritter’s victory in 2006 and his eventual plans for the property tax?

Colorado voters are smart, but they’ve been blindsided by this one – even though it will be years before they fully appreciate the consequences.

E-mail Vincent Carroll at vcarroll@denverpost.com

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