SUPREME COURT, STATE OF COLORADO

DATE FILED: April 8, 2021 5:31 PM

FILING ID: F171B3ACEF90A
2 East 14th Avenue CASE NUMBER: 2021SA97
Denver, CO 80203
Original Proceeding Pursuant to Article VI, Section 3 of the
Constitution of the State of Colorado
In Re: Interrogatory on House Joint Resolution 21-1164 Submitted COURT USE
by the Colorado General Assembly.
ONLY 
Case No.
Attorney: Rebecca R. Sopkin 2021SA97
720 Kipling Street
Lakewood, CO 80215
Phone: 303/232-4184
Email: [email protected]
Attorney Reg. # 20998

MOTION OF AMICUS CURIAE THE TABOR FOUNDATION FOR LEAVE TO FILE

ANSWER BRIEF IN RE: INTERROGATORY ON HJR 21-1164

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 CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of C.A.R. 28 and C.A.R. 32,
including all formatting requirements set forth in these rules.
Specifically, the undersigned certifies that: the brief complies with the applicable word
limit set forth in C.A.R. 29(d).
It contains 1339 words, exclusive of this Certificate of Compliance, the Table of
Contents, the Table of Authorities, and the Certificate of Service.
The amicus brief complies with the content and form requirements set forth in C.A.R.
29(c).
I acknowledge that my brief may be stricken if it fails to comply with any of the
requirements of C.A.R. 29 and C.A.R. 32.
/s/ Rebecca R. Sopkin
Rebecca R. Sopkin

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 TABLE OF CONTENTS
STATEMENT OF OF IDENTITY AND INTEREST 1
I. INTRODUCTION 2

II. COLORADO CONSTITUTIONAL BACKGROUND 2

III. THIS SITUATION DOES NOT FIT WITHIN ANY OF THE EXCEPTIONS
TO THE CLEAR LANGUAGE OF THE
TAXPAYER’S BILL OF RIGHTS 4
IV. AN OPEN-ENDED LICENSE 6

V. CONCLUSION 7
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 CERTIFICATE OF SERVICE

I certify that on the 8th day of April 2021, the foregoing document was filed with

the Court via the Colorado Courts E-Filing System,

https://www.jbits.courts.state.co.us/. True and accurate copies of the same were served

on all other parties who have entered an appearance via the Colorado Courts E-Filing

System.

/s/Rebecca R. Sopkin
Rebecca R. Sopkin

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 TABLE OF AUTHORITIES

CASES
Goggin v. State Tax Assessor, 191 A.3d 341, 345 (Maine 2018) 5

Griswold v. National Federal of Indep. Business, 449 P.3d 373

(Colo. 2019)
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Mesa County Bd. of County Comm’rs v. State, 203 P.3d 519 (2009) 5

TABOR Foundation v. RTD, 416 P.3d 101 (Colo. 2018) 6

CONSTITUTIONAL PROVISIONS
Colo. Const. art. II 3

Colo. Const. art. II, § 1 3

Colo. Const. art. V, § 1(2) 3

Colo. Const. art. X, § 20 1,2, 3

STATUTES
C.R.S. §§ 22-54-101 to 142 2

C.R.S.§ 22-54-106(2)(a)(iii) 6

Proposed C.R.S.§ 22-54-106(2.1)(a)(i) 6

Proposed C.R.S. § 22-54-106(2.1)(a)(ii) 5

Proposed C.R.S. § 22-54-106(2.1)(a)(iii) 6

Proposed C.R.S. § 22-54-106(2.1)(d)(ii) 5

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 COURT PLEADINGS

Interrogatory on HJR 21-1164 6

OTHER AUTHORITIES
Colorado TABOR Amendment Survey Release, Magellan Strategies (August
13, 2019), https://magellanstrategies.com/magellan-strategies-colorado-
tabor-survey/ 4

CONSTITUTIONAL PROVISIONS
Colo. Const. art. II 3

Colo. Const. art. II, § 1 3

Colo. Const. art. V, § 1(2) 3

Colo. Const. art. X, § 20 1,2, 3

Colo. Const. art. X, § 20(4) 3,4

Colo. Const. art. X, § 20(6) 3

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 STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE
The TABOR Foundation is a Colorado non-profit organization which exists in part

to develop and distribute education materials for the citizens of Colorado, documenting

compliance with the Colorado Constitutional provision which is commonly known as the

“Taxpayer’s Bill of Rights” or “TABOR.” Colo. Const. art. X, § 20. The TABOR

Foundation also provides a clearinghouse for information and analysis regarding the

effectiveness, structure and importance of TABOR.

This matter comes before the Court upon the Court’s acceptance of an

interrogatory filed by the Colorado General Assembly through House Joint Resolution

21-1164. The legislature seeks to determine whether proposed House Bill 21-1164 may

constitutionally require school districts across the State of Colorado to “gradually

eliminate the property tax credits” previously provided for and may do so without

obtaining voter approval of this maneuver.

This attempt to by-pass the prior voter approval requirements of TABOR directly

concerns the TABOR Foundation. In addition, this case will determine whether Colorado

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taxpayers will be allowed to opine on the important issues of the appropriate way to fund

public school education and what taxes they will be required to pay for such funding.

This organization has an important perspective regarding the applicability of

TABOR which can assist this Court with its evaluation of this case.

ARGUMENT

I. INTRODUCTION

The origin of the problem which the legislature now seeks to redress is that there

have been differing opinions within the government of the State of Colorado regarding

how to set mill levies in order to comply with both the School Finance Act, C.R.S. §§ 22-

54-101 to 142, and TABOR. Now that this issue has been resolved, the prevailing parties

would prefer that the Court allow them to operate under the fiction that the mill levies,

which were legally lowered in the interim, simply were not lowered. While this would

conveniently solve funding problems, it is not consistent with Colorado law.

II. COLORADO CONSTITUTIONAL BACKGROUND

The Colorado Constitution from its beginning has reflected a strong belief in

democracy and freedom, placing its Bill of Rights at the very beginning of the document.

Colo. Const. art. II (1876). The Bill of Rights itself states a clear preference for

government by the people, declaring that “[a]ll political power is vested in and derived

from the people; all government, of right, originates from the people, is founded upon

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their will only, and is instituted solely for the good of the whole” Colo. Const. art. II, § 1.

This theoretical proposition was then given concrete form in the first section of the article

describing the legislative power which, immediately after authorizing the general

assembly, the Constitution observes that “[t]he first power hereby reserved by the people

is the initiative,” Colo. Const. art. V, § 1(2).

One hundred and eighteen years later, much had changed in Colorado, however,

the desire of the citizens to be active participants in the governing of the State was still

vibrant. Exercising the power of initiative reserved to them by the Colorado Constitution,

the voters enacted the Taxpayer’s Bill of Rights, frequently referred to as TABOR. Colo.

Const. art. X, § 20 (1992). Among other features, this additional bill of rights requires

“voter approval in advance for . . . any new tax, tax rate increase, mill levy above that for

the prior year, valuation for assessment ratio increase for a property class, or extension of

an expiring tax, or a tax policy change directly causing a net tax revenue gain to any

district.” Colo. Const. art. X, § 20(4). There is an explicit exception made for emergency

situations, Colo. Const. art. X, § 20(6), but no such emergency has been asserted here.

As recently as 2019, a survey of likely voters in Colorado found that 62% continue

to support TABOR’s requirements of voter approval for tax increases. Colorado TABOR

Amendment Survey Release, Magellan Strategies (August 13, 2019),

https://magellanstrategies.com/magellan-strategies-colorado-tabor-survey/. The Colorado

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General Assembly, and the Colorado Judiciary, occasionally find working within the

restraints set by the Colorado Constitution difficult, but that does not mean that such

restraints can be legally ignored.

III. THIS SITUATION DOES NOT FIT WITHIN ANY OF THE EXCEPTIONS
TO THE CLEAR LANGUAGE OF THE TAXPAYER’S BILL OF RIGHTS
The Colorado Supreme Court has created a number of exceptions to the plain

language of the Taxpayer’s Bill of Rights, which requires a vote of the people to

authorize any “tax policy change directly causing a net tax revenue gain.” Colo. Const.

art. X, § 20(4). This situation does not fit within any of these judicially created

exceptions.

The Colorado Supreme Court specifically distinguished the situation in Mesa

County Bd. of County Comm’rs v. State, 203 P.3d 519 (2009) by noting that it was

addressing “the removal of a revenue limit,” and not a mill levy increase, 203 P.3d at

533. The Court noted that it would be a different situation if there were “a tax rate

increase at issue.” Ibid. The General Assembly seeks to increase taxes by “gradually

eliminat[ing] the temporary property tax credits as provided in House Bill 21-1164.”

Interrogatory on HJR 21-1164. As tax credits have the recognized effect of reducing a

taxpayer’s tax payments, Goggin v. State Tax Assessor, 191 A.3d 341, 345 (Maine 2018),

revoking such tax credits necessarily increases the taxpayer’s tax payments.

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 Unlike in Mesa County, the tax policy change, causing the net tax revenue gain,

would be directly caused by HB 21-1164, pursuant to a schedule to be adopted by the

Colo. Dept. of Education. Proposed C.R.S. § 22-54-106(2.1)(d)(ii). Contra Mesa, 203

P.3d at 531.

The General Assembly itself has observed that changing the mill levy rate without

issuing property tax credits would be “an unacceptable hardship on district taxpayers,”

Proposed C.R.S. § 22-54-106(2.1)(a)(ii), therefore this is clearly not a case involving

incidental or de minimis revenue amounts as per Griswold v. National Federal of Indep.

Business, 449 P.3d 373, 381 (Colo. 2019), TABOR Foundation v. RTD, 416 P.3d 101,

107 (Colo. 2018).

IV. AN OPEN-ENDED LICENSE

The Colorado Department of Education (“CDE”) mandated that school districts

reduce their mill levies from 1994-2006. This was hardly an inconsequential clerical

error. The General Assembly, in its Interrogatory, refers to this mandate as “without legal

authority.” In HB21-1164 itself the General Assembly backs off of this strong language

and says that the CDE “wrongly interpreted” the law. Proposed C.R.S.§ 22-54-

106(2.1)(a)(i). At the time that the mill levies were required to be reduced C.R.S. § 22-

54-106(2)(a)(iii) required the mill levies to be kept “under the property tax revenue

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limitation imposed on the district by section 20 of article X of the state constitution.” This

was clear legal authority.

The above law stood for 12 years, under administrations of both parties. Three

different CDE State Commissioners enforced it, as did almost two dozen different

members of the State Board of Education, of both parties, including our current governor.

If the General Assembly can now find that this was “without legal authority” and can

now therefore go back in time and impose previous tax rates, how are taxpayers to know

if any tax rate decrease is legitimate, or can the General Assembly revoke any tax rate

decrease and go back to previous higher rates, because the revenue is now sorely needed,

without any taxpayer participation in the process?

V. CONCLUSION

The General Assembly is attempting to put another band-aid on a school financing

scheme that is in dire need of a major overhaul. They are asking this Court to allow them

to further strain the already tortured interpretations of the clear language which requires

them to get voter approval into order to change the law in a manner that increases their

net tax revenue gains. The Court should honor our state Constitution and the Taxpayer’s

Bill of Rights within it and deny this attempt.

DATED this 8th day of April 2021.

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Respectfully submitted,

/s/ Rebecca R. Sopkin

Rebecca R. Sopkin (Atty. Reg. No. 20998)

TABOR FOUNDATION
720 Kipling Street
Lakewood, CO 80215
(303) 232-4184
[email protected]