Jerry Kopel

By Jerry Kopel
Jon Caldara of the Independence Institute has previously promised a lawsuit if Referendum C passed, which it has.  
Referendum C (now referred to as Ref. C) is a statute with two parts. (1) Providing for keeping surplus funds which the Taxpayer Bill of Rights (TABOR) would otherwise require to be returned to the public and (2) additional concepts which expand what constitutes the mathematical decision as to how to determine what is or is not "surplus" or "excess revenues".
TABOR  itself is severable. So is the new statute as provided in the present CRS 2-4-204:
"If  any provision of a statute is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of the statute are valid, unless it appears to the court that the valid provisions of the statute are so essentially and inseperably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court determines that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent."
The term "De-Brucing" is now a recognizable concept in Colorado. TABOR provides that a government entity, either local or state can, through a vote of the electorate, retain the surplus or excess revenues which TABOR would otherwise give back to the public.
Ref. C opens with "Notwithstanding any provision of law to the contrary, for each fiscal year commencing on or after July 1, 2005, but before July 1, 2010, the state shall be authorized to retain and spend all state revenues in excess of the limitation on state fiscal spending."
I believe Caldara would be making a mistake in challenging the five year TABOR recess, since under TABOR "successful plaintiffs are allowed costs and reasonable attorney fees, but a district is not unless a suit against it be ruled frivolous." Challenging the TABOR recess, in my opinion, would be frivolous.
That leaves the ratchet effect of TABOR which, (with the failure of Ref. D) now reads: 
"Excess state revenues cap" for a given fiscal year means " an amount equal to the highest total state revenues for a fiscal year from the period of the 2005-06 fiscal year through the 2009-10 fiscal year, adjusted each subsequent year for inflation, the percentage change in state population, the qualification or disqualification of enterprises, and debt service changes."
TABOR subsection 7 (a) provides: The maximum annual percentage changes in state fiscal spending equals inflation plus the percentage change in state population in the prior calendar year, adjusted for revenue changes approved by voters after 1991. Population shall be determined by annual federal census estimates and such number shall be adjusted every decade to match the federal census." The present statute CRS 24-77-103 states more clearly the language regarding enterprises and debt service changes.
While not exactly the same language as in the constitution, the court would have no trouble indicating they are similar except for "an amount equal to the highest total state revenues for a fiscal year from the period of the 2005-06 fiscal year through the 2009-10 fiscal year".
If Caldara's approach is to challenge the fiscal year 2010-2011 estimate being based on the 2009-10 fiscal year, I think it is easy for a court to determine while TABOR allows for "De-Brucing" which could be for a number of years or forever, there is nothing in TABOR that requires the 2010-11 fiscal year to return to what might have been the revenue numbers if the five year recess had not happened. In my opinion, Caldara would lose on that issue.
If Caldara proceeds on the language allowing the state to pick the highest number of state revenues from the five-year recess, what if the highest total state revenues for a fiscal year is always higher than the previous fiscal year?  The effect is the same as TABOR. Would a court challenge be acceptable as relevant until the legislature actually made an improper choice?
I think a court would hold a lawsuit (or an attempt at an injunction) not relevant until an actual conflict occurs. Of course, this is strictly my opinion. A statute is constitutional until it, or part of it is overturned by the courts.
There will likely be others who will comment on this issue and I, for one, will be very interested in their conclusions.
(Jerry Kopel served 22 years in the Colorado House.)

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