COLORADO COURT OF APPEALS                                          2016COA102


Court of Appeals No. 15CA0582
City and County of Denver District Court No. 13CV854
Honorable A. Bruce Jones, Judge


TABOR Foundation, a Colorado non-profit corporation; and Penn Pfiffner,

Plaintiffs-Appellants,

v.

Regional Transportation District; Bill James, Director of the Regional
Transportation District; Barbara Deadwyler, Director of the Regional
Transportation District; Angie Rivera Malpiede, Director of the Regional
Transportation District; Jeff Walker, Director of the Regional Transportation
District; Claudia Folska, Director of the Regional Transportation District; Tom
Tobiassen, Director of the Regional Transportation District; Gary Lasater,
Director of the Regional Transportation District; Kent Bagley, Director of the
Regional Transportation District; Judy Lubow, Director of the Regional
Transportation District; Larry Hoy, Director of the Regional Transportation
District; Paul Daniel Solano, Director of the Regional Transportation District;
Lorraine Anderson, Director of the Regional Transportation District; Natalie
Menten, Director of the Regional Transportation District; Bruce Daly, Director
of the Regional Transportation District; Charles Sisk, Director of the Regional
Transportation District; Scientific and Cultural Facilities District; Kathryn
Spuhler, Director of the Scientific and Cultural Facilities District; Kathy
Kucsan, Director of the Scientific and Cultural Facilities District; Dan Hopkins,
Director of the Scientific and Cultural Facilities District; Peggy Lehmann,
Director of the Scientific and Cultural Facilities District; Joseph Arcese,
Director of the Scientific and Cultural Facilities District; Damon Barry, Director
of the Scientific and Cultural Facilities District; Robert Grant, Director of the
Scientific and Cultural Facilities District; Rob Johnson, Director of the
Scientific and Cultural Facilities District; Harold Logan, Jr., Director of the
Scientific and Cultural Facilities District; Shepard Nevel, Director of the
Scientific and Cultural Facilities District; Elaine Torres, Director of the
Scientific and Cultural Facilities District; Marjorie Long, Director of the
Scientific and Cultural Facilities District; Colorado Department of Revenue;
and Barbara Brohl, Executive Director of the Colorado Department of Revenue,

Defendants-Appellees.
                            JUDGMENT AFFIRMED

                                 Division II
                          Opinion by JUDGE WEBB
                        Ashby and Harris, JJ., concur

                          Announced June 30, 2016


Mountain States Legal Foundation, Jeffrey W. McCoy, Steven J. Lechner,
Lakewood, Colorado, for Plaintiffs-Appellants

Marla L. Lien, Mindy Marie Swaney, Denver, Colorado, for Defendant-Appellee
Regional Transportation District

Norton & Smith, P.C., Charles E. Norton, Denver, Colorado, for Defendant-
Appellee Scientific and Cultural Facilities District

Cynthia H. Coffman, Attorney General, Robert H. Dodd, Jr., Senior Assistant
Attorney General, Terence C. Gill, Senior Assistant Attorney General, Alison K.
Blair, Senior Assistant Attorney General, Denver, Colorado, for Defendant-
Appellee Colorado Department of Revenue
¶1    This case arose under the Taxpayer’s Bill of Rights (TABOR),

 Colo. Const. art. X, § 20. Plaintiffs, TABOR Foundation and Penn

 Pfiffner (the Foundation), appeal the summary judgment, entered

 on stipulated facts, in favor of defendants, Regional Transportation

 District (RTD), Scientific and Cultural Facilities District (SCFD)

 (collectively, the Districts), and the Colorado Department of

 Revenue (DOR), holding House Bill (H.B.) 13-1272 constitutional.

¶2    To resolve the case, we must decide whether H.B. 13-1272

 violates TABOR by failing to require that the Districts obtain voter

 approval before collecting sales tax on items or categories not

 previously taxed because those items or categories were subject to

 statutory exemptions that H.B. 13-1272 removed. We conclude

 that despite lacking an election requirement, because H.B. 13-1272

 neither imposes a “new tax” nor constitutes a “tax policy change”

 within the meaning of TABOR, it is constitutional. Therefore, we

 affirm.

                            I.        Background

                                 A.     TABOR

¶3    Colorado voters adopted TABOR in 1992. “TABOR limits the

 state’s ability to levy new taxes or create new debts . . . .” Colo.


                                        1
 Union of Taxpayers Found. v. City of Aspen, 2015 COA 162, ¶ 11. It

 requires advance voter approval before a district may collect “any

 new tax, tax rate increase, . . . or a tax policy change directly

 causing a net tax revenue gain to any district.” Colo. Const. art. X,

 § 20(4)(a).

               B.   Inconsistent State and District Taxation

¶4    RTD’s and SCFD’s enabling statutes grant them taxing power

 coterminous with that of the state. See Ch. 248, sec. 1,

 § 32-13-105(1)(a)-(c), 1987 Colo. Sess. Laws 1255-56 (SCFD’s

 enabling statute); Ch. 285, sec. 2, § 89-20-18(2)(a), 1973 Colo. Sess.

 Laws 991-92 (granting RTD authority to tax); Ch. 231, sec. 1,

 § 89-20-18(1)(j), 1969 Colo. Sess. Laws 719 (RTD’s enabling

 statute). But over time, as the General Assembly added and

 removed tax exemptions, the items or categories subject to taxation

 by the state and Districts became disparate.

¶5    As relevant here, the General Assembly removed the state

 sales tax exemption for cigarettes most recently in 2009, but the

 exemption remained in place for RTD and SCFD. See Ch. 354, sec.

 1, § 39-26-706(1), 2009 Colo. Sess. Laws 1846 (temporarily

 removing the cigarette exemption); see also Ch. 304, sec. 1,


                                    2
 § 39-26-706(1)(a)-(b), 2013 Colo. Sess. Laws 1615 (permanently

 removing the cigarette exemption). Thus, the state could collect

 taxes on cigarettes beginning in 2009, but RTD and SCFD could

 not.

¶6      Similarly, the General Assembly removed the exemptions for

 direct mail advertising materials, candy, soda, and food containers

 in 2010. See Ch. 5, sec. 1, § 39-26-102(15)(a)(I), 2010 Colo. Sess.

 Laws 38 (direct mail advertising materials); Ch. 7, sec. 2,

 § 39-26-707(2)(d)(I), 2010 Colo. Sess. Laws 46 (candy and soft

 drinks); Ch. 10, sec. 1, § 39-26-707(1)-(2), 2010 Colo. Sess. Laws

 58-59 (food containers). Again, these exemptions remained in place

 for RTD and SCFD.

                          C.    H.B. 13-1272

¶7      To conform the disparate tax exemptions between the state

 and the Districts, the General Assembly enacted H.B. 13-1272 in

 2013. It granted Districts “the power to levy uniformly throughout

 the district a sales tax at any rate that may be approved by the

 board, upon every transaction or other incident with respect to

 which a sales tax is now levied by the state[.]” § 32-9-119(2)(a),

 C.R.S. 2015 (applying to RTD); § 32-13-107(1)(a), C.R.S. 2015


                                   3
 (applying to SCFD). Specifically, H.B. 13-1272 removed the

 exemptions on candy, soft drinks, cigarettes, direct mail advertising

 materials, and food containers for RTD and SCFD. The Districts

 began collecting taxes on these categories of items in 2014. The

 following table summarizes the effects of H.B. 13-1272:

       Item        Taxed by      Taxed by     Taxed by     Taxed by
                   State pre-    Districts   State post-   Districts
                    H.B. 13-      pre-H.B.    H.B. 13-     post-H.B.
                     1272?       13-1272?      1272?       13-1272?
 Advertising       Yes, most         No          Yes          Yes
  Materials       recently, as
                    of 2010.
       Candy       Yes, most        No          Yes           Yes
                  recently, as
                    of 2010.
     Cigarettes    Yes, most        No          Yes           Yes
                  recently, as
                    of 2009.
       Food        Yes, most        No          Yes           Yes
     Containers   recently, as
                    of 2010.
 Soft Drinks       Yes, most        No          Yes           Yes
                  recently, as
                    of 2010.

¶8       Neither RTD nor SCFD obtained voter approval after H.B.

 13-1272 was enacted and before collecting taxes on these items or

 categories of items.




                                     4
                             D.   This Action

¶9     The Foundation brought this action, alleging that the taxes

  collected by RTD and SCFD under H.B. 13-1272 are subject to

  TABOR’s “voter approval in advance” requirement because they

  constitute a “new tax” and a “tax policy change directly causing a

  net tax revenue gain to any district.” Colo. Const. art. X, § 20(4)(a).

¶ 10   The trial court disagreed, applied the unconstitutional beyond

  a reasonable doubt standard, and granted the Districts’ motions for

  summary judgment. It ruled on two grounds.

¶ 11   First, H.B. 13-1272 did not constitute a “new tax” under

  TABOR. The court acknowledged that the General Assembly had

  granted the Districts the power to collect a sales tax on all items

  taxed by the state. Thus, while H.B. 13-1272 permitted the

  Districts to collect taxes on items or categories of items that had not

  been taxed before its enactment, “a change in the list of items that

  are subject to sales tax does not constitute the creation of a new

  tax. Rather, it is an adjustment — primarily of an administrative

  nature — to an existing tax.”

¶ 12   Second, H.B. 13-1272 was not a “tax policy change.” The

  court accorded “policy” its ordinary meaning: “a high level overall


                                     5
  plan embracing the general goals and acceptable procedures

  especially of a governmental body.” Then it held that “the

  administrative simplification contemplated by [H.B. 13-1272], on its

  face, is not a change in tax policy since it is not ‘a high level overall

  plan.’”

                         II.   Summary Judgment Standard

¶ 13          An appellate court reviews de novo a trial court’s order

  granting summary judgment. Colo. Union of Taxpayers Found., ¶ 7.

  Summary judgment is appropriate only when the pleadings,

  depositions, answers to interrogatories, affidavits, and admissions

  on file show there are no “genuine issue[s] as to any material fact

  and that the moving party is entitled to a judgment as a matter of

  law.” C.R.C.P. 56(c).

       III.    Whether the Trial Court Applied the Correct Legal Standard

¶ 14          The Foundation first contends that for three reasons, the trial

  court should not have applied the “beyond a reasonable doubt”

  standard to its claims. After examining each reason, we reject this

  contention.




                                           6
                                   A.       Law

¶ 15   An appellate court reviews de novo “whether the [trial] court

  applied the correct legal standard.” Ledroit Law v. Kim, 2015 COA

  114, ¶ 47.

¶ 16   Also, an appellate court examines the constitutionality of a

  statute de novo. Dean v. People, 2016 CO 14, ¶ 8. Generally,

  unconstitutionality must be proven beyond a reasonable doubt. Id.

                              B.    Application

        1.     Whether TABOR Provides Its Own Interpretive Rule

¶ 17   The Foundation first argues that TABOR provides its own

  interpretive rule, which supplants the beyond a reasonable doubt

  standard: “[W]here multiple interpretations of [a TABOR] provision

  are equally supported by the text . . . , a court should choose that

  interpretation which it concludes would create the greatest restraint

  on the growth of government.” Bickel v. City of Boulder, 885 P.2d

  215, 229 (Colo. 1994).

¶ 18   Our supreme court has rejected a similar argument:

               [T]his tenet of construction is not a refutation
               of the beyond-a-reasonable-doubt standard,
               but rather an interpretive guideline a reviewing
               court may employ when it finds two separately
               plausible interpretations of the text of article


                                        7
            X, section 20. A challenge to the
            constitutionality of a state statute cannot be
            resolved by relying on article X, section 20’s
            tool of construction.

  Mesa Cty. Bd. of Cty. Comm’rs v. State, 203 P.3d 519, 527 (Colo.

  2009).

¶ 19   The Foundation does not offer an alternative reading of Mesa

  County. Instead, it relies on TABOR Foundation v. Colorado Bridge

  Enterprise, 2014 COA 106, ¶¶ 18-20, as supporting a different

  approach. This reliance is misplaced.

¶ 20   True, under the “Standard of Review” heading, the division

  repeated the above-quoted language of Bickel; it did not address the

  beyond a reasonable doubt standard at all. Id. at ¶ 19. However,

  because the division chose between two interpretations of TABOR,

  see id. at ¶ 17 — rather than analyzing whether a statute was

  unconstitutional under TABOR — addressing the beyond a

  reasonable doubt standard would have been purposeless. Thus,

  Colorado Bridge Enterprise does not carry the weight that the

  Foundation places on it. And in any event, because “[w]e are bound

  by the decisions of the Colorado Supreme Court[,]” Bernal v.

  Lumbermens Mut. Cas. Co., 97 P.3d 197, 203 (Colo. App. 2003), we



                                   8
  could not rely on a court of appeals opinion to avoid our supreme

  court’s decision in Mesa County.

¶ 21   Therefore, TABOR’s internal rule of construction does not

  provide the standard of review for assessing whether a statute is

  unconstitutional under TABOR.

       2.   Whether the Beyond a Reasonable Doubt Standard is
                        Fundamentally Flawed

¶ 22   The Foundation also invites us to abandon the beyond a

  reasonable doubt standard altogether because it is “archaic and

  undefined.” The Foundation relies on secondary authority and

  decisions in some other jurisdictions.

¶ 23   To be sure, squaring the “heavy burden” to deem a statute

  unconstitutional, People v. Vasquez, 84 P.3d 1019, 1022 (Colo.

  2004) (citation omitted), with the de novo review applicable to

  reviewing the constitutionality of statutes could seem anomalous,

  see United Air Lines, Inc. v. City & Cty. of Denver, 973 P.2d 647, 656

  (Colo. App. 1998) (Briggs, J., specially concurring) (noting the

  standard “subtly mutates the accepted beginning point for a

  constitutional analysis, creating an additional and final step which,

  even when taken properly, is treacherous”), aff’d, 992 P.2d 41 (Colo.



                                     9
  2000), cited with approval in City of Fort Collins v. Colo. Oil & Gas

  Ass’n, 2016 CO 28, ¶ 10.1

¶ 24   Even so, our supreme court has consistently applied the

  beyond a reasonable doubt standard when determining whether a

  statute violates TABOR. See, e.g., Huber v. Colo. Mining Ass’n, 264

  P.3d 884, 889 (Colo. 2011); Mesa Cty., 203 P.3d at 527; Barber v.

  Ritter, 196 P.3d 238, 247 (Colo. 2008); Zaner v. City of Brighton, 917

  P.2d 280, 286 (Colo. 1996). And recently, albeit in a different

  context, the court reiterated that a challenger must prove a statute

  is unconstitutional beyond a reasonable doubt to prevail. See

  Dean, ¶ 8.




  1 While courts in every state presume legislation to be
  constitutional, “many states find a statute unconstitutional under a
  less deferential standard of review than does Colorado.” Laura J.
  Gibson, Beyond a Reasonable Doubt: Colorado’s Standard for
  Reviewing a Statute’s Constitutionality, 23 Colo. Law. 835, 837 (Apr.
  1994). For example, the presumption of constitutionality does not
  require Utah courts to accept any conceivable purpose for the
  legislation. Id. at 837 & n.39 (citing Malan v. Lewis, 693 P.2d 661,
  671 n.14 (Utah 1984)). And in Kansas, once the challenger
  presents substantial, competent evidence that the statute is
  unconstitutional, the burden shifts to the state to show that the
  statute is constitutional. Id. at 837 & n.41 (citing Bingo Catering &
  Supplies, Inc. v. Duncan, 699 P.2d 512, 517 (Kan. 1985)).

                                     10
¶ 25      Therefore, we decline the Foundation’s invitation to disavow

  the beyond a reasonable doubt standard when assessing whether a

  statute is unconstitutional.

   3.     Whether the Foundation Can Avoid the Beyond a Reasonable
        Doubt Standard by Purporting to Challenge Only the Districts’
               Implementation of H.B. 13-1272, Not Its Text

¶ 26      Next, the Foundation tries to duck the reasonable doubt

  standard entirely by asserting that it is not challenging the

  constitutionality of H.B. 13-1272 at all. Instead, the Foundation

  characterizes this case as challenging only the Districts’ “decisions

  to levy and collect taxes . . . without first seeking voter approval.”

¶ 27      But a closer look at this characterization reveals its

  assumption that while H.B. 13-1272 empowers the Districts to

  collect taxes, they could defer doing so until — if ever — they

  obtained voter approval. Accepting this assumption, the TABOR

  violation does not inhere in H.B. 13-1272; it results from the

  Districts collecting taxes without prior voter approval. But this

  assumption cannot be reconciled with the allegations of the

  complaint, the language of H.B. 13-1272, and its legislative history.

¶ 28      The Foundation’s complaint directly challenged the

  constitutionality of H.B. 13-1272, alleging that it “unlawfully


                                       11
  authorizes RTD and SCFD to levy new sales and use taxes” and that

  it “empower[s] [the Districts], without a vote of the people, to levy

  taxes.” We reject the Foundation’s revisionist history on appeal.

¶ 29   Even if the Foundation could avoid the thrust of the

  complaint, it cannot escape the language of H.B. 13-1272. As

  discussed above in more detail, H.B. 13-1272 removes exemptions

  for items and makes those items subject to the Districts’ sales tax.

  See Ch. 354, secs. 6 & 8, §§ 32-9-119(2)(a), 32-13-107(1)(a), 2009

  Colo. Sess. Laws 1847-49. H.B. 13-1272 does not include any

  discretionary wording as to taxing these items, it is silent on

  whether the Districts must hold an election before collecting taxes

  on these items, and it does not mention TABOR at all. See Colo.

  State Bd. of Accountancy v. Raisch, 960 P.2d 102, 104, 108 (Colo.

  1998) (observing that a statute which, on its face, grants an

  “absolute and unqualified . . . power” will not be interpreted to

  imply a limitation in the absence of such language from the General

  Assembly); contra City of Colo. Springs v. Securcare Self Storage,

  Inc., 10 P.3d 1244, 1249 (Colo. 2000) (concluding that statute did

  not grant absolute authority to act because it included limiting

  language that action was “subject to the requirements of” other


                                     12
  statutes) (citation omitted); see also Bedee v. Am. Med. Response of

  Colo., 2015 COA 128, ¶ 39 (noting that a court should not read

  words into statutes that the General Assembly did not include).

¶ 30   And even overlooking the absence of any reference to

  discretion, we would still not read H.B. 13-1272’s expansion of the

  Districts’ taxing power as merely discretionary, pending an election,

  for two reasons.

¶ 31   First, given the legislative intent to “simplify the

  administration and collection” of taxes, Ch. 337, sec. 1, § 1(c), 2013

  Colo. Sess. Laws 1964 (legislative declaration), reading in discretion

  would frustrate the legislative purpose. This is especially so

  because the Districts might seek — but never obtain — voter

  approval, perpetuating the very disuniformity that H.B. 13-1272

  sought to remove.

¶ 32   Second, the legislative history includes several references to

  TABOR elections, see, e.g., Hearings on H.B. 13-1272 before the H.

  Fin. Comm., 69th Gen. Assemb., 1st Sess. (Mar. 27, 2013); Hearings

  on H.B. 13-1272 before the S. Fin. Comm., 69th Gen. Assemb., 1st

  Sess. (Apr. 16, 2013). These references strongly suggest that the

  General Assembly’s silence concerning such elections must have


                                     13
  been a choice, not mere inadvertence. This suggestion strengthens

  because other legislation has conditioned action on holding

  elections. See, e.g., Ch. 118, sec. 163, § 32-9-119(2)(a), 1992 Colo.

  Sess. Laws 910 (“[T]he district . . . after approval by election . . .

  shall have the power to levy uniformly throughout the district a

  sales tax . . . .”) (emphasis added); see also Safeco Ins. Co. v.

  Westport Ins. Corp., 214 P.3d 1078, 1079 (Colo. App. 2009)

  (Because the General Assembly “certainly knew how to deal with

  interest in this area . . . we cannot infer that it was through mere

  inadvertence that it failed to provide for the interest that [Safeco]

  seeks.”) (citation omitted).

¶ 33   Thus, the Foundation’s constitutional claims attack the text of

  H.B. 13-1272, not merely the Districts’ implementation of the tax

  without voter approval. And because the Foundation directly

  attacks H.B. 13-1272, to prevail it must prove unconstitutionality

  beyond a reasonable doubt. See, e.g., Mesa Cty., 203 P.3d at

  526-28 (assessing whether statutes violated TABOR under the

  beyond a reasonable doubt standard).

¶ 34   Having rejected all of the Foundation’s arguments against the

  beyond a reasonable doubt standard, we take up its alternative


                                      14
  assertion that the trial court misinterpreted and then misapplied

  this standard.

       IV.   Whether the Trial Court Misinterpreted the Beyond a
                      Reasonable Doubt Standard

¶ 35   The Foundation argues that even if the beyond a reasonable

  doubt standard applies, the trial court misinterpreted it by

  requiring evidence that “the Legislature drafted a law using

  language designed to circumvent the requirements of TABOR, i.e., a

  tax policy change disguised as administrative simplification.”

¶ 36   The trial court did not cite any authority for this view of the

  beyond a reasonable doubt standard, defendants have not cited

  any, and we can find none. This lack of authority dissuades us

  from adopting the trial court’s position. But declining to do so

  leaves unanswered another question: Just what type of proof do

  Colorado courts require before deeming a statute unconstitutional

  beyond a reasonable doubt?

¶ 37   To be sure, many Colorado cases only repeat that “[o]ne who

  raises a constitutional challenge must prove, beyond a reasonable

  doubt, that the statute impairs a right granted by the . . .

  Constitution.” People v. Wood, 999 P.2d 227, 229 (Colo. App.



                                    15
  2000). But recently, our supreme court explained that a court will

  not strike down a statute “unless a ‘clear and unmistakable’ conflict

  exists between the statute and a provision of the Colorado

  Constitution.” Colo. Ethics Watch v. Indep. Ethics Comm’n, 2016 CO

  21, ¶ 14 (quoting Coffman v. Williamson, 2015 CO 35, ¶ 13). In

  other words, to hold a statute unconstitutional beyond a reasonable

  doubt, the constitutional flaw must be so clear that the court can

  act without reservation. See Cantina Grill, JV v. City & Cty. of

  Denver Cty. Bd. of Equalization, 2012 COA 154, ¶ 15 (explaining

  that the “delicate duty” of declaring a statute unconstitutional

  should not be taken “unless the conflict between the law and the

  constitution is clear and unmistakable”) (citation omitted), aff’d,

  2015 CO 15.

¶ 38   Thus, we conclude that the trial court misinterpreted the law.

  Yet, answering this substantive question and identifying the correct

  standard still leaves a procedural question unresolved: Should we

  remand with direction or apply the standard ourselves? We choose

  the latter for reasons rooted in de novo review.

¶ 39   Because we review both the constitutionality of statutes and

  summary judgments de novo, and here all parties stipulated to the


                                    16
  relevant facts, we do not discern any benefit in remanding for the

  trial court to correctly apply the beyond a reasonable doubt

  standard to those stipulated facts, subject to our again reviewing its

  decision de novo in the event of a second appeal. Cf. Kirkmeyer v.

  Dep’t of Local Affairs, 313 P.3d 562, 568 (Colo. App. 2011)

  (“[J]udicial economy would not be served by leaving [the statute’s]

  interpretation to the Board on remand, subject to our de novo

  review in a later appeal, and we decline to do so.”); see also Brown

  v. J.B. Hunt Transp. Servs., Inc., 586 F.3d 1079, 1087 n.6 (8th Cir.

  2009) (“Because relevant facts are undisputed and complete,

  remand to the district court would only further delay the ultimate

  disposition of [the party’s] claim . . . .”).

¶ 40    For these reasons, we address the Foundation’s constitutional

  claims by asking whether any of the alleged constitutional defects

  in H.B. 13-1272 is so clear that we can hold it unconstitutional

  without any principled reservation.

   V.    Whether H.B. 13-1272 Violates TABOR Beyond a Reasonable
                               Doubt

¶ 41    The Foundation contends that because the trial court

  improperly concluded that H.B. 13-1272 does not impose either a



                                       17
  “new tax” or a “tax policy change” causing a net revenue increase,

  the court erred in holding that TABOR’s voter approval requirement

  was not triggered. Colo. Const. art. X, § 20(4)(a). The new tax

  contention presents a close question that leads us to look further

  and also consider prior voter approval. We conclude that although

  H.B. 13-1272 does not impose a new tax, even if it did, the Districts

  had received prior voter approval. We further conclude that H.B.

  13-1272 does not constitute a tax policy change.

                             A.        “New Tax”

¶ 42   The Foundation asserts that removing exemptions on certain

  items or categories of items under H.B. 13-1272 resulted in a new

  tax under TABOR because H.B. 13-1272 authorized the Districts to

  collect taxes on items or categories of items for the first time. The

  Districts counter that because they have long had broad authority

  to tax, removing limited exemptions is not akin to imposing new

  taxes.

              1.   H.B. 13-1272 Did Not Create a New Tax

                                  a.     Law

¶ 43   TABOR does not define “new tax.” Nor has any Colorado case

  done so.


                                        18
¶ 44   Instead, our supreme court has examined the purpose behind

  the statute at issue to determine whether it created a tax for TABOR

  purposes. See Barber, 196 P.3d at 249 (“[W]hen determining

  whether a charge is a fee or a tax, courts must look to the primary

  or principal purpose for which the money was raised, not the

  manner in which it was ultimately spent.”). In Barber, the court

  explained that because the “primary purpose” of the statute there

  was “not to raise revenue for general governmental expense, any

  production of such revenue can only be ‘incidental,’ and does not,

  therefore, constitute a tax.” Id. at 252.2

                              b.   Application

¶ 45   By any fair reading, the primary purpose of H.B. 13-1272 —

  as demonstrated by both its structure and its legislative history —

  was not to raise revenue.

¶ 46   Beginning with the structure of the bill, in addition to

  removing exemptions on some categories of items, it also added tax

  exemptions on vending machine food, machinery, machine tools,

  low-emitting power vehicles, power sources, and parts used for

  2 We do not suggest that a purposive definition of “new tax” would
  resolve all possible cases, such as one where the asserted purpose
  was not to generate revenue, but that was the obvious effect.

                                     19
  converting such power sources. See Ch. 337, sec. 2,

  § 32-9-119(2)(a)(I), 2013 Colo. Sess. Laws 1965 (vending machine

  food, machinery, and machinery tools); Ch. 337, sec. 3,

  § 32-13-107(1)(a)(I), (III), 2013 Colo. Sess. Laws 1965 (same); sec. 2,

  § 32-9-119(2)(a)(II), 2013 Colo. Sess. Laws at 1965 (low-emitting

  power vehicles, power sources, or parts used for converting such

  power sources); sec. 3, § 32-13-107(1)(a)(II), 2013 Colo. Sess. Laws

  at 1965 (same). Thus, while H.B. 13-1272 expanded the Districts’

  ability to tax certain categories of items, the Districts were also

  precluded from taxing other categories of items under H.B.

  13-1272.

¶ 47   The legislative declaration accompanying H.B. 13-1272 also

  shows that the purpose of the legislation was not to raise revenue.

  See sec. 1, § 1(c), 2013 Colo. Sess. Laws at 1964 (“[T]he intended

  purpose of the tax expenditures in this act is to simplify the

  administration and collection of sales and use tax for [RTD and

  SCFD].”). And during the enactment process, legislators reiterated

  that the bill was intended only to streamline the Districts’ collection

  of taxes, not to generate revenue. See, e.g., Hearings on H.B.




                                     20
  13-1272 before the H. Fin. Comm., 69th Gen. Assemb., 1st Sess.

  (Mar. 27, 2013).

¶ 48   Yet, the funds transfer at issue in Barber — from special cash

  funds to the general fund — did not create any new tax, but only

  removed limitations on spending the transferred funds. See Barber,

  196 P.3d at 248-52. Indeed, the court also concluded the funds

  were not taxes at all, but rather were properly characterized as fees.

  See id. And here, everyone would agree — as the Foundation points

  out — that the Districts are collecting taxes not previously

  assessed. For this reason, we look beyond Barber.

¶ 49   Aside from the structure and legislative purpose of H.B.

  13-1272, looming large over every TABOR analysis is the caution

  against interpreting TABOR in a way that would “cripple the

  government’s ability to function.” Mesa Cty., 203 P.3d at 529; see

  also Barber, 196 P.3d at 248 (“[W]e are especially mindful of the

  cautious line we have drawn to reasonably interpret [TABOR] and

  maintain the government’s ability to function efficiently.”). Applying

  that principle here, to hold that removing exemptions requires an

  election under TABOR would hamper the General Assembly’s ability

  to administer taxation efficiently.


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¶ 50   Given all this, we conclude that H.B. 13-1272 did not impose a

  new tax for TABOR purposes. And because H.B. 13-1272 did not

  impose a new tax, the Districts were not required to hold another

  election before imposing taxes under it. Yet, recognizing that the

  question is close, we also consider whether, if it did impose a new

  tax, the Districts had prior voter authorization without holding

  another election.

  2.   Even if H.B. 13-1272 Created a New Tax, the Districts’ Ballot
  Measures Granted Them Authority to Collect Taxes on the Items for
              Which H.B. 13-1272 Removed Exemptions

¶ 51   A division of this court has held that an election is not

  required if voters approved the new tax in advance. See Bruce v.

  Pikes Peak Library Dist., 155 P.3d 630, 632 (Colo. App. 2007) (“A

  pre-TABOR election can serve as ‘voter approval in advance’ for a

  post-TABOR mill levy increase.” (quoting Colo. Const. art. X,

  § 20(4))). In Bruce, voters approved a mill levy ceiling in advance,

  and while the mill levy rate increased and decreased several times

  after the election, the rate never exceeded the limit approved by the

  voters. See id.

¶ 52   We consider Bruce well-reasoned and apply it to decide

  whether RTD or SCFD voters provided prior approval to tax the


                                    22
  items or categories of items for which H.B. 13-1272 removed

  exemptions.

                                a.    RTD

¶ 53   Recall that the General Assembly granted RTD the authority to

  tax coterminous with the state. See § 89-20-18(2)(a), 1973 Colo.

  Sess. Laws at 991-92. In 1973, RTD voters permitted the district to

  collect a sales tax on “every taxable transaction.” But did this grant

  of authority also permit RTD to impose a sales tax on “every taxable

  transaction, now and in the future”?

¶ 54   Colorado courts have held that ballot measures should be

  interpreted like statutes. See, e.g., Huber, 264 P.3d at 889 (“We use

  the general rules of statutory construction in construing

  citizen-initiated measures.”). And statutes worded in the present

  tense are interpreted to express the future tense as well. § 2-4-104,

  C.R.S. 2015; see Schwankl v. Davis, 85 P.3d 512, 515 (Colo. 2004)

  (noting that “crime being committed” in statute “includes present as

  well as future crimes”) (emphasis added).

¶ 55   Interpreting the 1973 ballot like a statute, then, in 1973 the

  voters granted RTD authority to collect taxes on “every taxable

  transaction, now and in the future.” After 1973, the state removed


                                     23
  exemptions on candy, soft drinks, cigarettes, direct mail advertising

  materials, and food containers. But because the voters had already

  granted RTD the authority to tax taxable transactions in the future

  — and because the sale of items in the categories for which H.B.

  13-1272 removed exemptions became taxable transactions in the

  future by the state — the 1973 ballot provided prior voter approval

  to RTD.

¶ 56      True enough, the 1973 RTD ballot set a thirty-year maturity

  date for the bonds issued under that measure. But no Colorado

  case, and very limited out-of-state authority, addresses whether a

  ballot becomes ineffective once the underlying financing has

  expired. Because many ballot measures may have temporal

  limitations tied to the terms of the financing subject to approval,

  “[s]uch a significant expansion of precedent . . . is more properly the

  province of our supreme court.” Neher v. Neher, 2015 COA 103,

  ¶ 66.

¶ 57      In sum, even if H.B. 13-1272 imposed new taxes, because RTD

  voters had given their prior approval, another TABOR election was

  not constitutionally required.




                                     24
                               b.    SCFD

¶ 58   The General Assembly also granted SCFD authority to tax

  coterminous with that of the state. See § 32-13-105(1)(a), 1987

  Colo. Sess. Laws at 1255. And in 1994, SCFD voters granted SCFD

  authority to continue to impose taxes “currently levied and

  collected” by SCFD.3

¶ 59   For the reasons explained above with regard to RTD, we also

  interpret the 1994 ballot measure as granting SCFD the power to

  impose taxes “currently, or in the future, levied and collected.” So

  interpreting the 1994 ballot, the SCFD voters granted the district

  prior approval to collect taxes under H.B. 13-1272. And as with

  RTD, because SCFD voters had granted prior authority to collect

  taxes that SCFD would impose in the future, an election was not

  required, even if H.B. 13-1272 created a new tax.

¶ 60   In the end, we reiterate the “high burden” to declare a statute

  unconstitutional. Huber, 264 P.3d at 889. Although neither the

  new tax nor the prior voter approval question is free from doubt,


  3 SCFD’s first ballot measure in 1988 did not reference tax
  collection. Thus, we do not assess whether this measure granted
  SCFD prior voter approval to collect taxes on the categories or items
  for which H.B. 13-1272 removed exemptions.

                                    25
  this standard requires us to reject constitutional challenges in close

  cases. See Bormann v. Bd. of Supervisors, 584 N.W.2d 309, 322

  (Iowa 1998) (acknowledging the rule “finding constitutionality in

  close cases”).

                        B.    “Tax Policy Change”

¶ 61   The Foundation also asserts that by eliminating exemptions

  on certain items or categories of items, H.B. 13-1272 effected a tax

  policy change directly causing a net tax revenue gain to the

  Districts. In contrast to the new tax question, this question is not

  close.

¶ 62   As with “new tax,” TABOR does not define “tax policy change.”

¶ 63   The trial court defined this phrase using a dictionary definition

  of “policy”: “a high[ ]level overall plan embracing the general goals

  and acceptable procedures especially of a governmental body.”

  Merriam-Webster Online Dictionary, https://perma.cc/ZAG7-C37P;

  see Roalstad v. City of Lafayette, 2015 COA 146, ¶ 34 (“[W]here, as

  here, the statute does not define a term, the word at issue is a term

  of common usage, and people of ordinary intelligence need not

  guess at its meaning, we may refer to dictionary definitions in

  determining the plain and ordinary meaning.”) (citation omitted);


                                    26
  see also Colo. Op. Att’y Gen. No. 96-01 (Feb. 27, 1996) (defining

  “policy” as “the overall goal or object of government”).

¶ 64   This court primarily uses Webster’s Third New International

  Dictionary (2002) (Webster’s 2002). See, e.g., Prospect 34, LLC v.

  Gunnison Cty. Bd. of Cty. Comm’rs, 2015 COA 160, ¶ 14. It

  contains a similar definition for policy: “a projected program

  consisting of desired objectives and the means to achieve them.”

  Webster’s 2002 at 1754.

¶ 65   Applying these definitions, the Districts’ “high level overall

  plan” could be understood one of two ways: funding their

  operations based on a sales tax or imposing a sales tax broadly,

  subject to a few exemptions. But under either iteration, H.B.

  13-1272 did not change the Districts’ high level overall plan — after

  the statute’s enactment, the Districts still impose a broad sales tax,

  and this broad sales tax remains subject to a few exemptions. See

  sec. 2, § 32-9-119(2)(a)(I)-(II), 2013 Colo. Sess. Laws at 1965

  (adding exemptions to some categories of items); sec. 3,

  § 32-13-107(1)(a)(I)-(III), 2013 Colo. Sess. Laws at 1965 (same).




                                    27
  Thus, the high level overall plan for the Districts has stayed

  consistent: taxing a broad range of tangible items.4

¶ 66   For these reasons, we conclude that H.B. 13-1272 did not

  constitute a tax policy change under TABOR.

                           VI.   Attorney Fees

¶ 67   Because the Foundation was not a successful plaintiff, it is not

  entitled to recover attorney fees under TABOR. See Colo. Const.

  art. X, § 20(1); City of Wheat Ridge v. Cerveny, 913 P.2d 1110, 1115

  (Colo. 1996).

                            VII. Conclusion

¶ 68   The summary judgment is affirmed.

       JUDGE ASHBY and JUDGE HARRIS concur.




  4 The Foundation also asserts that the Districts’ shift to tax parity
  with the state constitutes a tax policy change. However, because
  the Foundation did not raise this argument until its reply brief, we
  need not address it. See Saint John’s Church in the Wilderness v.
  Scott, 2012 COA 72, ¶ 9 n.3.


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