The Colorado Supreme Court’s recent ruling to sanction Governor Bill Ritter’s backdoor tax increase on the people of Colorado (the so-called Mill Levy Tax “Freeze”) - overturning both the trial court who had found the tax increase unconstitutional and the will of the people, as previously expressed by rejecting a nearly-identical measure to freeze Colorado’s mill levy tax rates (Amendment 32) - was bad enough, costing Colorado taxpayers over $117 million this year alone.

BUT WAIT, THERE’S MORE: additional language buried deep “in the middle of the 45-page opinion” opens the door to millions more - up to $2 Billion more - in additional taxes, without asking voters for their permission, as required by TABOR.

State Legislature staff lawyer Sharon Eubanks briefed the Joint Budget Committee “with her shocking analysis of [the] recent state Supreme Court decision, which she says gives legislators the right to raise taxes without a vote of the people.” 

John Ziegler, staff director of the Joint Budget Committee, then provided legislators a list of several tax credits that were now “fair game” under the interpretation - totalling almost $2 Billion in potential “new” tax revenue.  (Just for fun - review the list and see how many new taxes YOU might get to pay once the legislature puts them into effect (take the survey and/or post comments below).  I tallied up 6-9 additional taxes I would have to pay, depending on how I spend my week - but I’m not a smoker   (although I DO buy groceries, gas, use the internet, a cellphone, etc.).

Of course, if you are a smoker, it didn’t take long to become the first target for new taxes.  Within a few short hours after hearing the legal analysis,

“the JBC made its first move to take advantage of its possible new power.  Rep. Mark Ferrandino, D-Denver, asked the JBC to sponsor a bill to repeal a cigarette tax exemption, and the panel agreed.

In 1969, the Legislature exempted cigarettes from sales taxes, even though they are still subject to an 84-cent-per-pack state excise tax and a $1.01 per pack federal tax.  The sales-tax exemption is worth $30 million a year.“

Outraged yet?  You’re not alone.  House Minority Leader Mike May, R-Parker, issued a “harshly worded statement” condemning the ruling:

“The Constitution is not a book of suggestions, it is the law.  I’m astounded at the arrogant presumption of authority over an area of the budget long thought to be clearly marked off limits by the Constitution.  Particularly at a time when Colorado taxpayers are tightening their belts, we should be doing the same before we take more of their money.  I believe that much more thought should have been given to this opinion before we embark on going into such uncharted territory.“

Vince Carroll of the Denver Post editorial board weighed in with a scathing essay (Blowing the Lid Off TABOR) slamming the court:

“Maybe it truly didn’t realize how its ruling last month justifying a property tax grab by state officials sets up Coloradans to be nibbled to death by one tax hike after another.“

Forgive them, for they know not what they do?  Not so much.  Sen. Al White, R-Hayden, indicates that the Supremes (particularly ueber-partisan Chief Justice Mullarkey, who wrote the opinion) knew exactly what they were doing:

“I suppose there could be a lawsuit, but a lawsuit on a Supreme Court ruling will end up right back at the Supreme Court.“

Jon Caldara, president of the Independence Institute, expressed similar sentiments:

“The Supreme Court will back the Legislature if it wants to repeal tax credits…

What lawyer would recommend us to go through (with a lawsuit) when you’ve got a Supreme Court that is willing to redefine words to defeat TABOR?

Instead of spending money for lawsuits, it might be better to spend the money on efforts to remake the court.

‘At some point, something’s got to be done to bring the courts back into line with the law.  I’m not sure what it is,’ Caldara said.

Indeed - something’s got to be done. 

Vote NO on retaining the four rogue Supreme Court justices - Mullarkey, Bender, Martinez, and Rice - in 2010.

By Mark Hillman, April 3 2009

Seventeen years ago, Colorado voters frustrated by the excesses of an unresponsive government passed the Taxpayers Bill of Rights (TABOR), a constitutional amendment designed to limit government spending and give voters to final word on tax hikes.

Initially, government officials largely adhered to TABOR’s strictures, ever mindful that the voters had spoken and expected those they elected to play by the rules.

Last month’s Orwellian decision by the Colorado Supreme Court signaled that no longer will the executive, legislative nor judicial branches of state government - all dominated by liberals - abide by a constitutional amendment that crimps their big-spender style.

Governing powers wager than most voters have forgotten why TABOR passed, much less what it was intended to do. That’s a dangerous gamble because TABOR’s primary tenets - subjecting tax increases to a public vote and limiting government spending - still elicit strong public support.

Last year, a constitutional amendment that would have rolled back the requirement that surplus tax revenues be refunded to taxpayers lost 55% to 45%, despite a $2.5 million campaign and only token opposition.

Instead of living within TABOR’s easily-defined guardrails, Democrats have adopted a strategy of making it irrelevant through subversive interpretations and raising unprecedented revenue through “fees” - indistinguishable from taxes to anyone but a lawyer.

Last year, Gov. Bill Ritter first proposed a $100 increase in the annual vehicle registration fee - distinguished from the registration tax only by the quarter-inch that separates the two on your car’s registration papers.

When KOA radio’s Mike Rosen suggested that Ritter was merely side-stepping TABOR because it didn’t apply to fees, the governor explained that this $500 million measure was legitimately a fee because “there really is a direct relationship between highway usage and infrastructure.”

He didn’t bother to explain how that was different from the fuel tax, since there is obviously a “direct relationship” between gasoline and transportation.

This year, Democrat legislators gave Ritter a $250 million vehicle fee increase. Can a fuel “fee” increase be far behind?

Ritter and his Democrat spending machine have also devised a new fee on hospitals, calculated to raise $600 million a year, while claiming to do so without raising costs on consumers. Magically, hospitals and state government rake in more money, but conveniently nobody pays more.  Right.

Which brings us to the courts, unelected because the justices are expected to apply the law regardless of whether doing so is convenient or popular.

When the courts ruled that no “tax policy change” occurred even though Ritter and the legislature amended state law - what is law if not “policy”? - to force school districts to raise more property tax revenues, liberals were emboldened to short-circuit another TABOR provision that puts voters in charge.

The “weakening” clause reserves to voters the ability to ease existing limits on revenue, spending or debt. But Democrats, taking another page from Orwell, declared that the state’s general fund spending limit - that’s what state law calls it - is not a limit but “an allocation strategy.”

“TABOR is silent on allocation strategies,” declares Democrat Sen. John Morse, endorsing yet another slap in the face to taxpayers.

It’s difficult to imagine why Democrats lawmakers would present voters with an outright tax increase ever again, so long as they can find legal lapdogs who will apply weasel words to change tax increases and spending limits into something else.

What tax issues, then, will voters be asked to consider? Mostly local government taxes or state matters in which the legislature or a special interest thinks it can fund a warm-fuzzy government program by taxing an unpopular target.

TABOR’s most significant remaining limit, a cap on total state spending, was modified and temporarily suspended by Referendum C. Under those terms it returns in 2011, whereupon the cult of big government will undoubtedly devise a scheme to render it meaningless, too.

Won’t it be ironic if, by inventing so many loopholes through which taxpayers can be soaked, overreaching Democrats sew the seeds of the next taxpayer revolt?

The author can be reached at mh80807@yahoo.com

(Cross-posted by permission of the author, Mark Hillman)

CompleteColorado.com has learned that Colorado lawmakers are looking at millions of dollars in new tax increases thanks to the recent state Supreme Court “mill levy” ruling on the Taxpayer Bill of Rights (TABOR).

From the analysis section of the Supreme Court ruling:

“it becomes apparent that a ‘tax policy change directly causing a net tax revenue gain to any district’ only requires advance voter approval when the gain exceeds one of the subsection (7) revenue limits.”

Today, in a Joint Budget Committee meeting, Legislative Legal Services lawyer Sharon Eubanks gave a presentation to committee members, arguing that because Referendum C has temporarily suspended “subsection (7),” then many tax credits and exemptions could be repealed without a vote of the people, increasing taxes on multiple items, and increasing revenues by up to $1.9 BILLION.

One example of a tax “credit” that could be lifted is tobacco. Traditionally, Colorado has had a “tax credit” on cigarettes. According to Eubank’s testimony today, that “credit” could be undone because of the Court’s ruling, effectively providing $20 million dollars in new revenues for the state.

Sources say the committee was presented with a list of “tax credits” that could be repealed without a vote of the people, raising between $1-2 billion in new revenue.
AUDIO CLIPS FROM EUBANK’S TESTIMONY -

AUDIO CLIP 1

AUDIO CLIP 2

FULL AUDIO OF EUBANK’S TESTIMONY BEFORE JOINT BUDGET COMMITTEE

(Article cross-posted from Complete Colorado)

The Colorado Supreme Court has trampled our Constitution one too many times…

This is a rogue court, populated with partisan “justices” with no respect for justice or the rule of law. 

This partisan court violated accepted legal practice in ignoring the “findings of fact” of the trial court which heard the case and ruled (correctly) on the unconstitionality of the mill levy tax rate freeze.

The majority on the court is apparently incapable of interpreting the plain language of the Colorado Constitution (including TABOR) which “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.‘”

The court’s majority is also apparently incapable of interpreting the plainly expressed will of the people, who previously “crushed a ballot amendment [32] in 2003 that would have frozen property tax rates.”

It is time to remind the court’s majorityof their responsibility to the rule of law, the state Constitution, and the will of the people.

Click here to take survey:  Given the repeatedly demonstrated extreme partisan nature of Chief Justice Mallarkey and the majority of the Colorado Supreme Court (renowned as the “most partisan state supreme court in the nation“), would you support an initiative to impeach, or failing that to non-retain, those justices voting to uphold the mill levy tax freeze (resulting in a net tax increase) in violation of the clear wording of the state constitution?

(Commentary posted by permission of The Peripatetic Pundit at Peoples Press Collective)

By Vincent Carroll

Voters Blindsided by Court

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

Today, the Supreme Court published its long awaited ruling on the tax freeze.  It had to rewrite the constitution to do it:

“When it issued its declaratory judgment order, the district court did not have the benefit of our recent decision in Barber v. Ritter, 196 P.3d 238 (Colo. 2008), in which we held that a statute challenged under article X, section 20 must be proven to be unconstitutional beyond a reasonable doubt.  The trial court erroneously held that the relevant test of SB 07-199’s constitutionality came from the interpretive guideline included in the text of article X, section 20 to “reasonably restrain most the growth of government.” 

Applying this erroneous standard, the trial court concluded that: (1) SB 07-199 “constitutes a net tax revenue gain to the State of Colorado”; (2) SB 07-199 was not a change in state tax policy requiring a statewide vote; (3) voter approval was required under subsection 7(c) of article X, section 20; and (4) the waiver elections held in the local school districts did not satisfy subsection (7)(c).

“We conclude that the General Assembly was acting within constitutional limits when it amended the School Finance Act. SB 07-199’s treatment of the school districts as the relevant taxing authorities for purposes of waiving the revenue limits is consistent with the constitutional provisions governing dual state/local funding and the constitutional provisions applicable to public education.  Interpreting article X, section 20’s various provisions harmoniously leads to the conclusion that only one election at the school district level was required in and the local school district elections fulfilled that election requirement.  There is ample evidence to find SB 07-199 constitutional and we find the plaintiffs failed to show it violated any constitutional provision of article X, section 20.”

Note that the Supreme Court has substituted a new standard for what is in the plain text of the state constitution and then used that new standard to find a plainly unconstitutional tax freeze constitutional.

The courts are so far out of control that we might as well not have a constitution in this state.

(Originally published in The Colorado Index on 16 March 2009)