Regarding County Commission candidate Rachel Suh’s op-ed about County Attorney Todd Weaver’s representation that there is “case law” which precludes the County Commission from re-allocating road funds if Ballot Issue 1-A is passed. She raises a legitimate question – what “case law”?
First let me tell Ms Suh that. while I endorse her candidacy (for whatever my endorsement is worth), I have a suggestion for her. A reason she did not receive satisfactory answers to her inquiries could be because some people may not take her seriously. Describing herself as having been a “pre-law student” in college can have that effect.
There is a quantum leap in education between being an undergrad, and law school — and Ms. Suh’s conundrum illustrates the difference. County Attorney Weaver can refer to “case law”, leaving Ms. Suh purportedly floundering for answers.
Law school teaches only two actually useful (but very important and necessary) skills:
1) To think like a lawyer – which is akin to contracting an incurable virus that never lets you see the world the same. I won’t bore you with how that’s accomplished, but every current and former law student can relate to the medieval common law Rule Against Perpetuities — which the Florida Supreme Court once said “no one can fully understand!”; and
2) Far more usefully (and directly related to Ms. Suh’s inquiry), it teaches both what to research – and how to find answers in a law library.
Having acquired those skills, I researched Mr Weaver’s assertion that there is case law holding that the County Commission “cannot ‘materially depart’ from the approved uses of voter-approved revenue”.
At the outset, I confess to not having any expertise in county government law — certainly not in Colorado where I’m not licensed to practice. But I have access to the same legal research resources as Mr. Weaver.
I’m unable to find any case “on all fours” (a legal term Mr Weaver should recognize) supporting his assertion. However, I did find the following “case law” suggesting Mr Weaver is mistaken. For his benefit, the case citations are included:
In 1995, the Colorado Supreme Court held that the Colorado Taxpayer Bill of Rights (TABOR) limits the discretion of governmental bodies in three ways, they said
“We interpret Amendment 1 [TABOR] to require voters to approve the collection, retention or expenditure of revenue increases in three situations. The first is where a district proposes any of the forms of revenue increases detailed in section 4(a), such as new taxes, increased tax rates or tax policy changes that result in increased tax revenues. Id. § 20(4)(a). The second is where revenues actually collected exceed the dollar amounts of the spending limits imposed in section 7(b). In this situation, voters may “approve a revenue change as an offset” to the excess revenues. Id. § 20(7)(d). The third circumstance in which voters must approve a revenue change is where the revenues generated by a specific tax increase exceed the estimated maximum dollar amount included in the election notice and ballot title under which voters approved the tax increase. In this situation, the district must refund the excess revenues and decrease the tax rate in proportion to the excess revenues collected, “except by later voter approval.” Id. § 20(3)(c).” City of Aurora v Acosta 892 P.2d 264, 268.
Where does that preclude the Commission from re-allocating Ballot Issue 1A revenues to non-road maintenance purposes without voter approval?
Havens v Board of County Commissioners of Archuleta County 924 P.2d 517 (1996), speaks to the interaction of TABOR with Colorado statute 1-41-103(4)(d) as to limitation on tax revenue “changes”. There is language in this case referring to “[a]pproval of revenue changes”, but it refers to those “changes” delineated in Acosta about increasing or decreasing revenue amounts received, and whether they can be rebated to taxpayers.
But it did not otherwise declare how revenues must be allocated. So it doesn’t support Mr Weaver’s claimed limitation on allocation of the revenues received from Ballot Issue 1A.
The Colorado Supreme Court cited to Havens in Mesa County Board of County Commissioners v State of Colorado 203 P3d 519 (2009), and said about the Mesa County ballot measure, “The straightforward wording of the ballot questions governs our analysis of whether they fulfilled the substantial compliance requirements.”
The language in Ballot Issue 1A does not specify any amount be dedicated to road maintenance.
The Mesa County Board case then held that once the voters approved the revenue measure in that case, there was no requirement for a “second election … directing how revenue received … should be used” (Id, at 529). So I’m skeptical that Havens is the “case law” on which Mr Weaver is basing his assertion that no second vote is required to re-allocate to non-road purposes. If it does, he needs to explain how — and bind the county commission to his interpretation.
Particularly since in 2000, a Colorado Supreme Court decision (in a lawsuit over an Archuleta County sales tax ballot initiative involving a specific allocation to road maintenance) makes no reference to whether the commission could re-allocate revenues from that purpose. In fact, it seems to suggest otherwise. Board of County Commissioners of Archuleta County v County Road Users Association 11 P.3d 432, held that
“This right of [sales tax ballot] initiative extends only to the limits of [the County Sales Tax Act], and therefore, the exercise of that statutory power of initiative must comply with that statute.”
Nothing in the Sales Tax Act (Act) precludes the County Commission from subsequently re-allocating the revenues to non-road purposes.
In 1988, the Colorado Supreme Court addressed the allocation of sales tax revenues generated by a county ballot in Town of Orchard City v. Board of Delta County Com’rs of Delta County 751 P.2d 1003. That holding does not preclude re-allocation of revenues without voter approval.
In fact, I could find no language in TABOR, in the Act, or in “case law” interpreting either, which requires the County Commission to obtain voter approval to re-allocate revenues obtained by the Ballot 1A sales tax from road maintenance. But there is the following which suggest such a re-allocation, without voter approval, is permissible:
The Colorado Attorney General opined that re-allocation of revenues from the general fund to road construction, without voter approval, did NOT violate TABOR. Nothing in that opinion suggest the inverse is not also permissible.
Office of the Attorney General – Formal Opinion #95-3, (1995)
In Barber v Ritter 196 P.3d 238 (2008), the Colorado Supremes said,
“[W]ere we to adopt the position that the transfer of monies from special cash funds to the General Fund results in a net tax revenue gain, it would lead to results contrary to the purpose of Amendment 1 [TABOR]. Transfer of monies from one fund to the other does not increase the overall amount of Amendment 1 revenue available to the state.”
While it’s correct that Barber involved “fees” rather than “taxes”, that language does not limit itself to fees only.
Having cited authority which appears to refute Mr Weaver’s proposition that there is “case law” holding “a future Board of County Commissioners could NOT pass a resolution allocating 0% of the revenue generated from the sales tax increase for road and bridge improvements”, the ball is in his court.
If I’m wrong, and he can cite to the contrary “case law” he refers to, it will be easy to refute me.
I invite him to do so. Because if I am wrong, so much the better for the citizens of Archuleta County.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.