GOP irate over ruling on mill levy

By Jason Kosena
THE COLORADO STATESMAN

Chalk up another victory for the Colorado Democrats.

By a 6-1 decision Monday, the Colorado Supreme Court ruled in favor of legislation backed by the Democrats that will keep property taxes from decreasing. The court said the 2007 legislation — which froze mill levies at their then-current levels — passed constitutional muster and does not violate the Taxpayers Bill of Rights, which requires a popular vote in order to alter tax policy.

The decision overturns a May 2008 district court ruling that found the law unconstitutional.

The suit — brought by the Mesa County Board of Commissioners — challenged Gov. Bill Ritter and the legislation, arguing that voters never were asked if they did not want their taxes to decrease (a decrease being the net result had the mill-levy freeze not been implemented). Thus, the suit argued, taxpayer rights under TABOR had been violated.

But the court disagreed, saying voters in 174 of the state’s 178 school districts who have voted over the years to disregard the limitations of TABOR (or to “de-Bruce”) did not need to approve the mill-levy freeze.

“Nothing in (TABOR) requires an additional vote,” the court’s opinion said. “Because there was no change in state revenues, a statewide election was not required.”

Basking in the victory, Democrats said the mill-levy freeze — which was signed by Gov. Bill Ritter in 2007 and is expected to raise $100 million each year over the next 10 years — will stabilize the state’s education fund and will avoid deeper cuts to higher education, health care and human services.

“The real winners today are Colorado students,” Ritter said after the ruling. “We can send more students to preschool and more students to full-day kindergarten (because) of it.”

Republicans, however, cried foul, saying the decision is another example of a partisan ruling by the Colorado Supreme Court that reaffirms Democratic attempts in recent years to dismantle TABOR one piece at time.

“There is an attempt to repeal TABOR on an installment plan,” said Senate Minority Leader Josh Penry, R-Grand Junction. “(They are trying) to nickel and dime it away. And if the leadership in this building is so adverse to TABOR — and clearly they are — then they should have the guts to take it to the voters and repeal it.

“I think this ruling will just embolden the interest groups and the leadership in this building to go after TABOR even more,” Penry said.

TABOR amendment author and former Republican Rep. Douglas Bruce agreed, calling the ruling an assault on the state Constitution and on the fiscal restraint voters mandated in 1992 when they approved the amendment.

“We have seen a number of instances where the Legislature has hypocritically, dishonestly and illegally tried to dismantle TABOR,” Bruce told The Colorado Statesman this week.

Bruce said the decision to “raise taxes” by freezing the mill-levy is only one example of the assaults he sees on TABOR. He also pointed to the possible elimination of the Arveschoug-Bird bill — which places a 6 percent spending limit on the General Fund and is considered sacred to TABOR supporters — and to the passage of FASTER, which Bruce equated to a hidden tax increase “in the name of a fee.”

FASTER, signed into law by Ritter earlier this month, is expected to generate $250 million a year for road and bridge repairs by implementing new vehicle registration and car-rental fees.

“I knew that this was going to happen at some point,” Bruce said, referring to legislative efforts to disguise tax increases as fees.

But not all Republicans believed this week’s Supreme Court ruling was wrong, including former Republican lawmaker and one-time Joint Budget Committee member Norma Anderson of Lakewood.

When reached by The Colorado Statesman this week, Anderson said she supported the court ruling.

She said she believes the mill-levy freeze is constitutional because school districts are able to ask voters to lower the mill levy and because voters can defeat future mill-levy increases should districts request them.

“I think it was the right thing to do, and the court decision was absolutely correct,” Anderson said. “It’s not an increase in spending. It’s not an increase in revenue because the mill-levy doesn’t change and there is no doubt involved in that.”

Anderson, a 20-year veteran of the Legislature who served as Majority Leader when Republicans were in control in 2004, unsuccessfully tried to push similar legislation to freeze the mill-levy that year. The measure passed the Senate by a 31-4 vote.

“I only had four votes against it in the Senate, and one of them was (Democrat and current Senate President) Peter Groff,” Anderson said. “And now he is on the other side of the issue.

“Also, (Republican and then-Senate President) John Andrews voted for it in 2004. Then he claimed that he didn’t know what he was doing when he stopped supporting it. I always said that, if you don’t know what you’re doing, then you should figure it out before you represent people.”

Anderson’s mill-levy freeze legislation eventually was killed in the House after then-Rep. Keith King, R-Colorado Springs, convinced fellow Republicans to vote against it, Anderson said.

When asked if she believes there is a full-scale assault on TABOR today at the Capitol, Anderson said, “It’s complicated.”

“TABOR is so difficult to understand that, when we first tried to implement the law, it was the Republicans who were accused of the same thing Democrats are accused of today because we were the ones in control,” Anderson said. “Doug Bruce was saying that we were not interpreting TABOR correctly and that we were not implementing it right.

“I think TABOR needs to be either redone or thrown out and put on the ballot to let people vote on their taxes,” she continued. “You have parts of the Constitution that TABOR overrides, but it can’t override everything. And we can’t have any discussion on TABOR without talking about Amendment 23, which has to go.”

Despite her support of the mill-levy freeze, Anderson said Senate Bill 228 — which would repeal the Arveschoug-Bird 6 percent spending limit on the General Fund — is not constitutional and called its passage an attack on TABOR.

When the Legislature passed the Arveschoug-Bird bill in 1991, the discussion was “purely around setting a spending limit on the General Fund,” Anderson said.

“I was there, and I can tell you that when Democrats today say there is nothing in the law that talks about a spending limit, they are wrong,” Anderson said. “That is exactly what we were trying to implement — and did implement with the passage of the (law).”

But not everyone is as sure as Anderson that SB 228 — which passed the Senate on third reading Tuesday — is an attack on the state Constitution.

Republican Attorney General John Suthers told The Colorado Statesman this week that if SB 228 passes and is challenged, his office will represent the state and defend it in court.

“I believe that the constitutionality of repealing the Arveschoug-Bird statute is a much closer question than the (mill-levy) decision by the court this week, and is probably defensible,” Suthers said.

So, where does that leave Colorado fiscal hawks who believe TABOR and the taxpayers are being steamrolled?

One of the state’s leading conservatives, Independence Institute President Jon Caldara, said one idea is a statewide ballot initiative to allow citizens to petition a mill-levy decrease directly onto a local school district ballot — something that only school districts can place on the ballot today.

“That is something that we will have to look at if the school districts themselves don’t want to ask voters for (a decrease) in the mill-levy,” Caldara said.

Another rumor swirling in the GOP is that the Republican Party will go after the state’s Supreme Court justices when they come up for retention. Although it would be difficult to oust a majority of the Supreme Court justices because most voters historically leave the judge boxes blank on ballots, apparently the idea is being passed around.

“I think it’s clear the Democrats know the Supreme Court is their backstop and will rubber-stamp any change to TABOR that comes out of this body,” Penry said.

“There will be a spirited discussion on anti-retention (campaigns),” he said.

Jason@coloradostatesman.com