DATE FILED: April 8, 2021 5:00 PM

Colorado Supreme Court FILING ID: 36CEAB7B15007

CASE NUMBER: 2021SA97

2 E 14th Ave.
Denver, CO 80203

Original Proceeding; Interrogatory from the

General Assembly

In re Interrogatory on House Bill 21-1164

Daniel E. Burrows Case Number:

Public Trust Institute 2021SA97
98 Wadsworth Blvd. #127-3071
Lakewood, CO 80226
(720) 588-2008
dburrows@publictrustinstitute.org
Atty. Reg. #40284

ANSWER BRIEF OF CERTAIN IDENTIFIED LEGISLATORS

 I hereby certify that this brief complies with all requirements of
C.A.R. 28 or C.A.R. 28.1, 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 limits set forth in
C.A.R. 28(g) or C.A.R. 28.1(g) and the Court’s briefing order. It contains
9348 words (principal brief does not exceed 9500 words; reply brief does not
exceed 5700 words).

The brief complies with the standard of review requirements set

forth in C.A.R. 28(b), as modified to account for the unique procedural
posture here. For each issue raised, the brief contains under a separate
heading before the discussion of the issue, a concise statement of the
applicable standard of appellate review with citation to authority.
I acknowledge that my brief may be stricken if it fails to comply
with any of the requirements of C.A.R. 28 or 28.1, and C.A.R. 32.

_________________________________
Daniel E. Burrows #40284
Public Trust Institute

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 TABLE OF CONTENTS

ISSUES PRESENTED FOR REVIEW ........................................................ 1

FACTS ......................................................................................................................1

1. FACTUA L A ND P ROCEDU RA L BACK GROU ND ............................... 1

2. T H E PA RTIES S U BMITTING T H IS B RI EF ...................................... 6

SUMMARY OF THE ARGUMENT ............................................................. 6

ARGUMENT .........................................................................................................8

1. T H E C OU RT S HOULD R EJ ECT TH E L EGISLATU RE ’ S P ETITION AS

I MP ROVIDE NTLY G RA NTED. ...................................................................... 8

1.1. Standard of Review.....................................................................................8

1.2. All of the Standard Prudential Considerations Counsel Against

Answering the Legislature’s Interrogatory. ................................................ 8

1.2.1. It is practically impossible for the Court to properly understand and

address in a single, truncated proceeding the myriad circumstances in
which H.B. 21-1164 would apply. .......................................................10

1.2.2. The General Assembly understates the complexity of the issue it has
presented to the Court. ........................................................................16

1.2.3. The legislature has more appropriate avenues for obtaining an answer
to its question. .....................................................................................19

1.2.4. This case threatens to drag the Court into a long-running political
dispute. ................................................................................................20

2. T H E P ROPOSED STATUTE IS U NC ONSTITUTIONA L .............................22

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 2.1. Standard of Review...................................................................................22

2.2. H.B. 21-1164 Raises Taxes Without a Vote of the People and, Therefore, Is
Unconstitutional. .....................................................................................23

2.2.1. The legislature’s schemes for getting around The Taxpayer’s Bill of
Rights are little more than sleight of hand. .........................................23

2.2.2. Despite the factual similarities between this case and Mesa County
Board of County Commissioners v. State, the legal questions are
dissimilar. .............................................................................................28

2.3. The Proposed Bill’s Mandating of a Particular Mill Levy Violates the
Constitution’s Prohibition on Municipal Taxation by the General
Assembly and Coerces School Boards in Violation of the Constitution’s
Local Control Provision. ...........................................................................31

CONCLUSION ..................................................................................................35

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 TABLE OF AUTHORITIES

U.S. Supreme Court Cases

The Emily & the Caroline, 22 U.S. (9 Wheat.) 381 (1824) ....................................11

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ..............................34–35

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) .............................34

South Dakota v. Dole, 483 U.S. 203 (1987) .............................................................34

Colorado Supreme Court Cases

Bd. of Cty. Comm’rs v. Fifty-First Gen. Assembly, 599 P.2d 887 (1979) ..........33–34

Bruce v. City of Colo. Springs, 129 P.3d 988 (Colo. 2006) .....................................28

Clint v. Stolworthy, 357 P.2d 649 (Colo. 1960) ......................................................29

Colo. Common Cause v. Bledsoe, 810 P.2d 201 (Colo. 1991) .................................11

Dep’t of Soc. Servs. v. Bd. of Cty. Comm’rs, 697 P.2d 1 (1985)..........................18, 32

Havens v. Bd. of Cty. Comm’rs, 924 P.2d 517 (Colo. 1996)....................................28

Hunter v. Dist. Court, 193 Colo. 308 (1977) .........................................................14

In re Constitutionality of Senate Bill No. 65, 12 Colo. 466 (1889) ..............8–10, 19

In re House Bill No. 99, 26 Colo. 140 (1899) .........................................................10

In re Interrogatories by the Governor, 245 P.2d 1173 (Colo. 1952) .......................10

In re Interrogatories of the Governor, 97 Colo. 528 (1935)....................................20

In re Interrogatories of the Governor, 111 Colo. 406 (1943)................................8–9

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In re Interrogatories of the House of Representatives, 62 Colo. 188 (1916).....10, 19

In re Interrogatories on House Bill 99-1325, 979 P.2d 549 (Colo. 1999)............... 22

In re Interrogatories Proposed by the Governor Concerning the Moffat Tunnel Bill,

71 Colo. 331 (1922) ...............................................................................................8–9

In re Interrogatories Propounded by McNichols, 350 P.2d 811 (Colo. 1960) .......... 8

In re Interrogatories Propounded by the Senate, 281 P.2d 1013 (Colo. 1955) ......... 9

In re Interrogatories Relating to the Great Outdoors Colo. Trust Fund, 913 P.2d
533 (Colo. 1996) ............................................................................................19

In re Interrogatories Submitted by the Gen. Assembly, 88 P.3d 1196 (2004) ........ 16

In re Interrogatory on House Joint Resolution 20-1006, 2020 CO 23 ................... 17

In re Interrogatory Propounded by Governor Hickenlooper, 2013 CO 62, 312 P.3d

153 ............................................................................................................15–18

In re Penitentiary Comm’rs, 19 Colo. 409 (1894) .................................10, 15, 21–22

In re Phillips, 139 P.3d 639 (Colo. 2006) .................................................................. 9

In re Senate Resolution No. 2, 94 Colo. 101 (1933) .........................................20, 22

In re Senate Resolution No. 9, 190 Colo. 452 (1976) ............................................... 9

Lobato v. State, 2018 P.3d 358 (Colo. 2009) ...........................................................11

Lujan v. State Bd. of Educ., 649 P.2d 1005 (Colo. 1982) ........................................33

Main Elec., Ltd. v. Printz Servs. Corp., 980 P.2d 522 (Colo. 1999) .......................29

Mesa Cty. Bd. of Cty. Comm’rs v. State, 203 P.3d 519 (Colo. 2009) ...............passim

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People ex rel. Sch. Dist. No. 2 v. Cty. Commr’s, 12 Colo. 89 (1888).......................31

Preston v. Dupont, 35 P.3d 433 (Colo. 2001) .........................................................30

Pueblo Junior Coll. Dist. v. Donner, 387 P.2d 727, 729 (1963) ........................32–33

Ryals v. St. Mary-Corwin Reg’l Med. Ctr., 10 P.3d 654 (Colo. 2000) ................... 25

School Dist. No. 98 v. Pomponi, 79 Colo. 658 (1926) ............................................31

Smith-Brooks Printing Co. v. Young, 103 Colo. 199 (1938)...................................25

Stell v. Boulder Cty. Dep’t of Soc. Servs., 92 P.3d 910 (Colo. 2004).......................25

Wilmore v. Annear, 100 Colo. 106 (1937) ........................................................18, 32

Other Colorado Cases

Grossman v. Dean, 80 P.3d 952 (Colo. App. 2003) ................................................. 2

Montezuma Well Serv., Inc. v. Indus. Claim Appeals Office, 928 P.2d 796 (Colo.
App. 1996).....................................................................................................25

Colorado Constitutional Provisions

Colo. Const. art. X, § 3 ..........................................................................................27

Colo. Const. art. X, § 7 ...................................................................................passim

Colo. Const. art. IX, § 15 ...........................................................................18, 31, 33

The Taxpayer’s Bill of Rights, Colo. Const. art. X, § 20 ..............................passim

Statutes and Other Legislative Acts

Act of June 30, 2020, 2020 Colo. Sess. Laws 937 .........................................passim

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Colo. Rev. Stat. § 2-3-501 (2020)............................................................................19

Colo. Rev. Stat. § 24-31-101 (2020)........................................................................19

H.B. 21-1164 .....................................................................................................passim

H.J. Res. 20-1006, 72nd Gen. Assemb., 2d Reg. Sess. (Colo. 2020) ............17, 21

Public School Finance Act of 1994, 1994 Colo. Sess. Laws 776–827........passim

S.J. Res. 04-016, 64th Gen. Assemb., 2d Reg. Sess. (Colo. 2004).......................17

S.J. Res. 21-006, 73d Gen. Assemb., 1st Reg. Sess. (Colo. 2021) ................passim

Other Sources

72 Colo. H. Journal 760 (Mar. 14, 2020) ..............................................................21

72 Colo. S. Journal 551 (Mar. 14, 2020)................................................................21

73 Colo. H. Journal 364 .........................................................................................21

73 Colo. S. Journal 306 (Mar. 19, 2021)................................................................21

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts (2012) ....................................................................................................26

Black’s Law Dictionary (10th ed. 2014) ...............................................................26

Colo. Gen. Assembly, HB21-1164: Total Program Mill Levy Tax Credit,
http://leg.colorado.gov/bills/hb21-1164 ........................................................... 5

Colo. Mun. League, TABOR: A Guide to the Taxpayer’s Bill of Rights

(2018) .........................................................................................................3, 11

Jackson v. Bd. of Election Comm’rs, 975 N.E.2d 583 (Ill. 2012) .............................20

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Letter from John W. Suthers, Att’y Gen., to Bill Ritter, Governor, et al (Apr.
27, 2007) ..................................................................................................19–20

Robert G. Natelson, The Colorado Taxpayer’s Bill of Rights (2016) ....................... 2

Wagschal v. Skoufis, 442 F. Supp. 3d 612 (S.D.N.Y. 2020) ....................................20

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 ISSUES PRESENTED FOR REVIEW

1. The interrogatory here presents complicated legal issues that

would require construing multiple constitutional provisions and then
applying those constructions to the varying circumstances in at least 127

different school districts without the benefit of factual development in a

lower court. It also seeks to have the court settle an issue that has been the
subject of a long-running political dispute for nearly than thirty years.
Should the Court exercise its discretion to decline to answer the legislature’s
question?
2. Does a proposed statute that would require property owners to
pay more property taxes each successive year for the next nineteen years
constitute a year-over-year mill levy increase and therefore require voter
approval under the state constitution?
3. Does a statute that uses ruinous financial consequences to
coerce local school districts to raise their mill levies violate the state
constitution’s requirement of local control over education?

FACTS
1. FACTUA L A ND P ROCEDU RA L BACK GROU ND
Twenty-seven years ago, the General Assembly passed the Public

School Finance Act of 1994, 1994 Colo. Sess. Laws 776–827 (codified as
amended at Colo. Rev. Stat. § 22-54-101–42 (2020)). This was a massive bill

1
that enacted numerous changes in how schools are funded and managed in
Colorado. Among the Act’s provisions was a section that limited the mill

levy in certain districts to “the number of mills that may be levied by the
district under the property tax revenue limitation imposed on the district by
section 20 of article X 1 of the state constitution.” Id. sec. 2, § 22-54-106(2),

1994 Colo. Sess. Laws at 792 (codified at Colo. Rev. Stat. § 22-54-106(2)
(1994)).
This seemingly innocuous provision has led to nearly three decades
worth of administrative wrangling, legislative action, and litigation. 2 It all
started when the bill left the Governor’s desk and went to the Department
of Education for implementation. The Taxpayer’s Bill of Rights sets limits on
the growth of government revenue and spending, but it allows a district to
opt out of those limits with voter approval. This process is commonly
referred to as “de-Brucing,” after TABOR’s primary author, former

representative Douglas Bruce.3

1Article X, section 20 is commonly called “The Taxpayer’s Bill of Rights” or

“TABOR,” and will be referred to as such herein.

2This provision actually has its genesis in a bill from the year prior when
the legislature passed a quick fix to implement the then-new Taxpayer’s Bill
of Rights. However, its effects were apparently first felt in 1994. See Mesa
Cty. Bd. of Cty. Comm’rs v. State, 203 P.3d 519, 524 n.1 (Colo. 2009).

3The term is seen as a pejorative in some quarters. Robert G. Natelson, The

Colorado Taxpayer’s Bill of Rights § 6.4.8 (2016). Nonetheless, it is “commonly

2
 Obviously, the School Finance Act adopted TABOR’s revenue limits as
a statutory matter. The Department of Education, however, interpreted the

statute as adopting the limits, but not the availability of the de-Brucing opt-
out. This had the effect of mandating mill levy reductions in many districts,
even though such reductions may not have been required as a matter of
purely constitutional law. Mesa Cty., 203 P.3d at 525.
Colorado maintains a dual-funding system for public schools, where
both the state and the local district chip in money. The consequence of the

Department’s interpretation of the 1994 Act was that the state share of
education spending began increasing and the local share began decreasing.
At some point, the legislature became dissatisfied with this result.
Therefore, in 2007 it amended the Act to put a halt on the downward drift of
local mill levies. But it did so without increasing any mill levy. Id. at 526.
Rather, it simply froze the mill rate in most jurisdictions. See id. These led to
a lawsuit that resulted in this Court’s decision upholding the act in Mesa
County Board of County Commissioners v. State two years later. See S.J. Res. 21-
006 at 1–3, 73d Gen. Assemb., 1st Reg. Sess. (Colo. 2021) (discussing
situation in more detail); Mesa County, 203 P.3d at 524–26 (same).
This solution prevailed until last year. However, in 2020 the General

used among state and local government officials and the press.” Colo. Mun.
League, TABOR: A Guide to the Taxpayer’s Bill of Rights 23 n.82 (2018).

3
Assembly passed a statute that did two things relevant to this case: First, it
declared that the Department of Education had “wrongly interpreted and

applied” the School Finance Act “for property tax years 1994 through 2006.”
Act of June 30, 2020, 2020 Colo. Sess. Laws 937, 950 (codified at Colo. Rev.
Stat. § 22-54-106(2.1)). Second, the legislation invalidated the 1994–2006 mill
rate reductions and ordered (with some minor caveats) that, beginning with
“the 2020 property tax year,” every jurisdiction that had de-Bruced must
reset its mill rate to what it would have been but for the previous,

Department-ordered reductions. Id. at 951. However, to avoid actually

increasing taxes, the statute also required such districts to “grant . . .
temporary property tax credit[s]” that eliminated any practical effect of the
legislation on taxpayers; although the mill rate was theoretically increased,
no taxpayer would actually pay at the higher rate. Id. at 952.
Which leads us to H.B. 21-1164, the subject of this case. That proposed
bill makes the theoretical higher rate mandated in the 2020 amendments a
practical reality by phasing out the mandatory tax credits over the next
nineteen years.4 H.B. 21-1164, sec. 1, §§ 22-54-106(2.1)(a)(II)–(d)(III).

H.B. 21-1164 was introduced on March 4, 2021—about twenty-seven

4The precise schedule for the phase-out is variable and subject to some
administrative discretion. H.B. 21-1164, sec. 1, § 22-54-106(2.1)(d)(III).
However, the phase-out must be complete “[b]y the 2040 property tax year.”
Id.

4
years after the original 1994 Act, fourteen years after the 2007 amendments,
and a year after the legislature imposed its merely notional higher mill levy

from 2020. Colo. Gen. Assembly, HB21-1164: Total Program Mill Levy Tax
Credit, http://leg.colorado.gov/bills/hb21-1164 (view “All Versions” under
“Bill Text”) (last visited Apr. 8, 2021). The bill passed the House less than

two weeks later. S.J. Res. 21-006 at 4. Somewhere along the line, though,
“[s]ubstantial questions [were] raised about the [bill’s] constitutionality.” Id.
Rather than seeking advice from the Attorney General or the legislature’s
Office of Legislative Legal Services (OLLS) however, the Senate advanced
the bill to just short of final passage and, at the same time, promulgated a
joint resolution to send an interrogatory about the bill to this Court under
article VI, section 3 of the constitution. S.J. Res. 21-006; accord Gardner Aff.
¶¶ 7–9 (attached as Ex. A). That resolution passed both houses.
The interrogatory, as stated by the legislature, is:

Given that most school districts obtained voter approval to retain

all excess property tax revenue but were required, without legal
authority, to subsequently reduce their total program mill levies,
can the General Assembly, having already mandated that those
school districts reset their total program mill levies to the levels
that would have been in effect but for the unauthorized reduc-
tions, now require such school districts to: (a) gradually eliminate
the temporary property tax credits as provided in House Bill 21-
1164; and (b) do so without again obtaining voter approval?

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S.J. Res. 21-006 at 6.5 After the resolution was sent to this Court, it ordered
briefing on the matter.

2. T H E PA RTIES S U BMITTING T H IS B RI EF
This brief is submitted by thirty-six legislators—twenty-three
representatives and thirteen senators. In the interest of space, they are not
listed individually in this brief.6 The group is comprised of: (a) all of the
votes in the House, save one, against submitting the interrogatory (b) all of
the votes in the Senate against submitting the interrogatory, (c) and two
legislators who were excused from attendance that day. Put another way, no
legislator submitting this brief voted in favor of S.J. Res. 21-006.
SUMMARY OF THE ARGUMENT

The Court has the power to refuse to answer the legislature’s

interrogatory for prudential reasons, and it should do so here. This case
involves the intersection of several complex laws and could require the
Court to construe three different articles of the constitution and one

5 This resolution contains some disputed propositions: most obviously (a)

that an administrative interpretation which the legislature acquiesced in for
thirteen years was “without legal authority” and (b) the implication that the
legislatively ordered mill levy increases have already once received voter
approval. These propositions are addressed below.

6Each of the legislators is listed by name in the undersigned’s entry of

appearance, filed April 6, 2021.

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preexisting statute. None of these laws is particularly straightforward. In
fact, in a factually similar case that require this Court to construe some of

the same provisions, the Court stated its analysis was “a difficult task
indeed.” Mesa Cty., 203 P.3d at 526. The issue is no less complicated now. The
underlying circumstances in each district mean not only that H.B. 21-1164
will affect each of Colorado’s school districts a different way, but that its
constitutionality will vary from district to district. Especially given the
partisan valence of this issue, the Court should decline to decide the

legislature’s question on the thin record before it.

If the Court decides to address the question, however, it should find
that H.B. 21-1164 would be unconstitutional. The bill plainly mandates mill
levy increases without prior voter approval in many districts. Therefore, it
violates TABOR. Furthermore, by requiring a particular mill levy in each
district and providing ruinous consequences for failing to comply, the
legislature has unconstitutionally coerced districts in violation of both the
constitution’s local control provision and its the prohibition on state taxation
for local purposes.
ARGUMENT

1. T H E C OU RT S HOULD R EJ ECT TH E L EGISLATU RE ’ S P ETITION AS

I MP ROVIDE NTLY G RA NTED.
1.1. Standard of Review
There is no standard of “review” per se, as this is an original

7
proceeding. Nonetheless, before addressing the question at hand the Court
must be satisfied that the question (a) is a matter that “relate[s] to purely
public rights,”(b) “possess[es] a peculiar or inherent importance not
belonging to all questions of the kind,” and (c) was “propounded upon [a]
solemn occasion[].” In re Constitutionality of Senate Bill No. 65, 12 Colo. 466,
468 (1889). In practice, the final two factors collapse into one, informed
primarily by prudential considerations designed to make sure that resort to
the interrogatory process is exceptionally rare. See In re Interrogatories of the
Governor (1943 Interrogatories), 111 Colo. 406, 411–13 (1943); Senate Bill No.
65, 12 Colo. at 468–72.
Although the Court has already granted the petition submitting the
interrogatory, it can still dismiss it as improvidently granted, see, e.g., In re
Interrogatories Propounded by McNichols, 350 P.2d 811, 812–13 (Colo. 1960).
The legislators submitting this brief urge the Court to do so.

1.2. All of the Standard Prudential Considerations Counsel Against

Answering the Legislature’s Interrogatory.
The General Assembly’s interrogatory plainly presents a matter
concerning public rights. It is on prudential grounds that the legislators
submitting this brief contest the propriety of the Court answering the
question.
“It is impossible to state any absolute rule” for when a Court should
or should not exercise its power to answer a question from the legislature.
See Senate Bill No. 65, 12 Colo. at 468. Nonetheless, the “court’s reluctance to
pass upon constitutional questions in response to interrogatories . . . has
been repeatedly announced,” In re Interrogatories Proposed by the Governor

8
Concerning the Moffat Tunnel Bill, 71 Colo. 331, 331 (1922) (per curiam), and
there are important considerations that counsel against addressing the
interrogatory here.
Some of those considerations attend every time the legislature
requests the Court’s opinion and thus justify a general wariness against
answering such questions. For example, the lack of a true adversarial
proceeding, which marks every such interrogatory, raises not only problems
with the lack of a developed factual record, but also a frightening potential
to prejudice the rights of parties not before the Court. 1943 Interrogatories,
111 Colo. at 412–13; Senate Bill No. 65, 12 Colo. at 469–70, 472. Consequently,
this Court has highlighted the “danger of grave abuses” in the power to
answer interrogatories. Senate Bill No. 65, 12 Colo. at 471. “The utmost
vigilance and caution [must] be exercised . . . . There cannot well be too
much moderation in the premises.” Id. at 471–72. Accordingly, the Court is
“disinclined to adopt a new principle of law in any context other than an
appeal,” In re Phillips, 139 P.3d 639, 643 (Colo. 2006), and will answer the
legislature’s questions “only in such cases [where the answer is] clear and
wherein no possible prejudice to anyone may later result.” In re
Interrogatories Propounded by the Senate, 281 P.2d 1013, 1016 (Colo. 1955).
On top of all this, there are several circumstances that suggest the
court should not answer a proposed question even when the usual concerns
inherent in the nature of the interrogatory power are at their nadir. Where
the question is a difficult one, In re Senate Resolution No. 9, 190 Colo. 452, 453
(1976) (citations omitted); Interrogatories by Senate, 281 P.2d at 1015, or
requires the Court to construe multiple statutes or constitutional

9
provisions, In re House Bill No. 99, 26 Colo. 140, 144 (1899) (per curiam);
accord In re Interrogatories by the Governor, 245 P.2d 1173, 1175 (Colo. 1952), it
is better left to the adversarial process. Also, the Court’s opinion should
generally be sought only as a last resort; ordinarily, the legislature should
turn first to the Attorney General or its own Office of Legislative Legal
Services and only come to the Court if those counselors are stumped or
otherwise diffident. Senate Bill No. 65, 12 Colo. at 472; In re Interrogatories of
the House of Representatives, 62 Colo. 188, 190 (1916). Finally, the Court must
be careful not to involve itself in what are essentially political disputes. To
do so would violate the separation of powers and potentially politicize the
Court. See In re Penitentiary Comm’rs, 19 Colo. 409, 413–14 (1894).
Here, every one of these considerations counsels against answering
the General Assembly’s question.

1.2.1. It is practically impossible for the Court to properly understand

and address in a single, truncated proceeding the myriad
circumstances in which H.B. 21-1164 would apply.
First, by the resolution’s own terms, it seeks to short-circuit the
ordinary process of litigation and apply an all-encompassing answer to the
varied circumstances present in different school districts. See S.J. Res. 21-006
at 4–5. The School Finance Act applies a single standard for determining the
local portion of school funding in every school district where the voters
have waived TABOR’s spending limits. Colo. Rev. Stat. § 22-54-106(2.1)(b)(I)
(2020). H.B. 21-1164 would essentially use this standard to require year-over-
year tax increases in 127 of those districts. S.J. Res. 21-006 at 4. However,
other than the requirement for a vote of the taxpayers, there is no standard

10
procedure for waiving TABOR’s revenue requirements. Each district had its
own ballot language and its own debate on the issue, keyed to the particular
needs and circumstances of that district. Accord Colo. Mun. League, supra,
at 23. Thus, determining whether such tax increases are constitutionally
acceptable would require the Court to examine the language of 127 different
ballot issues. The Court also would potentially need to review the voter
information booklets that accompanied the ballot questions. See, e.g., Lobato
v. State, 2018 P.3d 358, 375–76 (Colo. 2009); Colo. Common Cause v. Bledsoe,
810 P.2d 201, 209 (Colo. 1991); Grossman v. Dean, 80 P.3d 952, 962–63 (Colo.
App. 2003).
The variety of verbiage that voters encounter can be seen in an
affidavit submitted in Mesa County and attached to this brief as Ex. B. That
affidavit and its accompanying exhibits detail the precise ballot language
that was applicable in each of Colorado’s 178 school districts as of 2008.7
The issue now is what those elections had to say about mill levy rates.
And, as one might expect, there are a host of variations. The language in
many ballot questions is clear that a state-mandated increase in the mill

7The legislators submitting this brief don’t know if intervening elections

have altered the rule applicable in each individual district in the years since
Mesa County. At least some of the districts had multiple ballot issues that
were relevant at the time of that case, and others may have had additional
elections since then. Any such changes, though, would be irrelevant to the
point made in this brief: that the circumstances in the 127 potentially
affected districts vary and, consequently, the issue is best dealt with on a
case-by-case basis with the record development that comes from discovery
and a trial.

11
levy would go beyond what the voters approved. For example, in numerous
districts the voters approved a ballot issue that explicitly stated no
“property tax mill levy shall be increased at any time.” Herman Aff., Ex. A
at 5 (Springfield), 9 (Sierra Grande, Crowley County), 11–13 (Kiowa, Elbert,
Calhan, Peyton), 15 (Canon City, Cotopaxi), 20–21 (Trinidad, Hoehne,
Aguilar, Kim, Genoa-Hugo), 23 (De Beque), 27–28 (Rocky Ford, Manzanola,
Fowler, Cheraw, Swink, Ouray, Platte Canyon), 32 (Gilcrest), 37 (Hayden);
accord id. at 12 (Agate), 23 (Plateau), 25 (West End), 35–36 (Platte Valley,
Cripple Creek, Woodland Park, Akron, Lone Star), 38 (Windsor). In Las
Animas and Sargent in particular that language was conspicuously
emphasized. Id. at 5, 32.
Others were ambiguous. In Douglas County, for example, the school
board promised only that it would not “increase tax rates above levels
authorized by law.” Id. at 10. The ballot measure in Primero merely said it
would not “affect[] tax rates.” Id. at 21. Eagle County said it would not
“impos[e] any new taxes or increas[e] tax rates,” but it’s unclear whether that
meant any increase, or just an increase beyond what the rate was when they
voted on that language in 2000. Id. at 10; accord id. at 17 (Jefferson County),
35 (Summit County). The ballot issues in Lewis-Palmer, East Otero,
Silverton, and Platte Valley foreswore “imposing any new taxes or increases
in tax rates.” Id. at 14, 26, 34, 39. Does “new” modify only “taxes”? Or does it
apply to “increases in tax rates” as well? If the latter, does that allow the
school board to float the mill rate as long as it doesn’t exceed the rate at the
time the ballot measure was approved?
Many ballot issues contained an explicit affirmation that they were

12
retaining four specific pieces of TABOR’s requirements, including “voter
approval of all new taxes and tax rate increases” and “the election
requirements contained in 8 Article X, Section 20 of the Colorado
Constitution.” Id. at 1, 7, 11, 14, 17, 20, 22, 25, 28, 30, 34, 36, 38–41. Other
districts—Sheridan, Salida, Academy, Eads, Plainview, Lake County,
Bayfield, Creede, 9 Montezuma, Dolores, Brush, and Pawnee—had nothing
to say about taxes at all. Id. at 3, 6, 13, 18, 19, 24, 26, 41.
The ballot language in Center and some other districts allowed the
collection of “the full revenues authorized under the Colorado Public
School Finance Act of 1994 as amended or under any successor act.” Id. at 9,
33; accord id. at 7–8. That language might authorize the changes proposed in
H.B. 21-1164. Delta and Park County approved similar language. Yet their
ballots also said they would do so “without imposing any new taxes or
increasing tax rates.” Id. at 9, 29; see also id. at 15 (Rifle), 25 (West End).
Should those districts be treated the same as Center? Or differently?
What about the districts with seemingly contradictory language? For
example, in at least seven districts, the ballot language disclaimed
“increasing any tax rates or imposing any new tax” but also said it was
lifting not only TABOR’s spending provisions (the standard purpose of
these ballot measures), but also all “other limitation[s]” in TABOR—

8 Sometimes the ballot measure would use “of” instead of “contained in.”

9Creede’s ballot question didn’t mention taxes in 1995, Herrmann Aff., Ex. A
at 24, but a later ballot measure, in 2001, said it would not “affect[] tax
rates,” id., Ex. B.

13
including its “revenue-raising” ones. Id., Ex. A at 15, 23, 26, 31, 41–42; see
also id., Ex. A at 16, Ex. B (different language regarding tax rates, but the
same TABOR waiver in West Grand and Creede). Which of these seemingly
contradictory terms should prevail? Does the location of the tax rate
disclaimer affect the analysis? (Most districts made it a prefatory statement,
but in Liberty it came immediately after the part about waiving TABOR, id.,
Ex. A at 41.)
Or what about the ballot issues that explicitly conditioned future tax
increases on the approval of that district’s voters. E.g., id. at 4–5, 13–14, 16.
Can voters acting in a single district prohibit increases imposed by the
State?
And then there’s the curious case of Woodlin: the school board there
apparently operates under a 1996 waiver that only mentioned Washington
County itself and said nothing about the school district. Id. at 37. Is that
legal?
To be clear, this is not intended to catalog every variation in the
applicable ballot language. The point is that the potentially material
differences are legion. Given the many different ballot issues that have
passed in Colorado’s 178 school districts, it does not make sense to try to
deal with all of these varied circumstances in a single case—especially a
case that arrives at this Court via interrogatory. Cf. Hunter v. Dist. Court, 193
Colo. 308, 309 (1977) (dismissing C.A.R. 21 petition as improvidently
granted because “[t]he skeleton record . . . prevent[ed] a full consideration
of the issues and reflect[ed] the impropriety of [the Court] intervening”).
The legislature complains that piecemeal litigation “could result in a

14
confusing patchwork of inconsistent district court decisions.” S.J. Res. 21-006
at 5. But insofar as there is a risk that “some school districts” may “reduce
their temporary property tax credits” while others may not, id., that would
just as likely be a result of different facts on the ground as different legal
standards or conflicting interpretations. Furthermore, a “patchwork” is the
system that has prevailed at least since the Public School Finance Act of
1994 was first enacted. See Mesa Cty., 203 P.3d at 525. The legislature never
explains why, nearly thirty years on, such a patchwork has suddenly
become so intolerable that this Court must weigh in immediately instead of
letting the issue percolate up through the lower courts. Cf. Penitentiary
Comm’rs, 19 Colo. at 414 (noting longstanding nature of dispute as reason
not to address it via interrogatory).
The General Assembly is also concerned with delay, wanting an
answer regarding the constitutionality of their proposed changes to the
School Finance Act sooner rather than later. S.J. Res. 21-006 at 5. But, as
Justice Márquez has said before:

That the resolution of important constitutional rights through or-

dinary litigation may result in some delay does not, by itself, war-
rant exercise of [the Court’s] extraordinary jurisdiction under ar-
ticle VI, section 3. “Reasonable time must always be allowed for
the consideration of the rights of the parties in the administration
of justice under a free government. Reasonable delay is the price
we pay in order to secure the protection and vindication of per-
sonal rights under a government like ours.”
In re Interrogatory Propounded by Governor Hickenlooper, 2013 CO 62, ¶ 44,
312 P.3d 153, 164 (Márquez, J., dissenting) (quoting In re Fire & Excise

15
Comm’rs, 36 P. 234, 242 (Colo. 1894)). Again, the root of the issue that H.B.
21-1164 tries to address dates back nearly thirty years. It has been the
subject of two major legislative fixes and a Supreme Court case (which
proceeded through the ordinary channels of litigation). Any delay that
might come from allowing the constitutionality of H.B. 21-1164 to play out
in the lower courts would be comparatively minor.

1.2.2. The General Assembly understates the complexity of the issue it

has presented to the Court.
Second, the questions presented in this case are difficult and complex.
The Mesa County case is instructive. Although Mesa County involved a
different legal issue, it likewise stemmed from the “intersection of . . . the
School Finance Act and article X, section 20.” 203 P.3d at 526. These are “two
complex laws,” and “untangling the various provisions of article X, section
20, especially as its provisions relate to calculation of limits on collection of
revenue, voting requirements, and allocation of revenue among various
school districts consistent with the School Finance Act, presents a difficult
task indeed.” Id. (internal quotes omitted). Consequently, Mesa County
required “a four-day trial” to present an adequate record for decision, id.,
and just the written submissions to the trial court took up more than 3700
pages, Gardner Aff. ¶ 5.
Notably, the resolution presenting the General Assembly’s
interrogatory takes twenty-five “whereas” clauses over seven single-spaced
pages to lay out its factual and legal background. This is nearly twice as
long as H.B. 21-1164 itself. As a comparison, the submissions in In re
Interrogatories Submitted by the General Assembly, 88 P.3d 1196 (2004), and In

16
re Hickenlooper—two of the three most recent interrogatory cases—were
shorter than what the legislature has presented here. In the former, the
resolution addressed two different questions in less space.10 See S.J. Res. 04-
016, 64th Gen. Assemb., 2d Reg. Sess. (Colo. 2004). In the latter, the
Governor’s submission (attached as Ex. C) was shorter even with double
spacing and a fourteen-point font.
The resolution in In re Interrogatory on House Joint Resolution 20-1006,
2020 CO 23—the Court’s most recent interrogatory case—was admittedly
about the same length as the one here, but that case dealt with a relatively
straightforward legal question (whether the 180-day limit on a legislative
session must be measured in consecutive calendar days) and the resolution
arguably included a good deal of immaterial information. See H.J. Res. 20-
1006, 72nd Gen. Assemb., 2d Reg. Sess. (Colo. 2020).
This prior practice cuts two ways, but neither supports addressing the
legislature’s question. On one hand, the resolution is, as a normative matter,
unusually long and complex. And yet, even with this lengthy resolution, the
legislature’s entire petition (including supporting documents) isn’t even
0.4% as long as the Mesa County record, see Gardner Aff. ¶ 5, and fails to
include a good deal of important information, see supra, pt. 1.2.1.
Furthermore, the resolution’s claim that this case would only require
the Court to construe a single constitutional provision is incorrect. The
General Assembly only points to TABOR’s elections provision, Colo. Const.

10The Court still declined to answer one of those questions because the
issue had to “be determined on a case-by-case basis with due consideration
given to all of the relevant circumstances.” 88 P.3d at 1196.

17
art. X, § 20(4). S.J. Res. 20-006 at 4. But in order to properly answer the
legislature’s question, the Court would also need to deal with:
• TABOR’s spending/revenue limits (because the potential application
of H.B. 21-1164 hinges on de-Brucing elections carried out under that
provision);
• TABOR’s provisions dealing with state mandates, Colo. Const. art. X,
§ 20(9); accord Mesa Cty., 203 P.3d at 536–37 (Coats, J., concurring);
• the local-control provisions of article IX, section 15; and
• the prohibition on municipal taxation by the General Assembly, Colo.
Const. art. X, § 7. 11
But despite the complicated issues involved, the briefing schedule
anticipates that the Court will decide the matter on an expedited schedule,
without the ordinary opening-answer-reply briefing rhythm. See Order,
Mar. 25, 2021, at 1. That is not a prudent way to judge these weighty and
difficult issues. See In re Hickenlooper, 2013 CO 62, ¶ 44, 312 P.3d 153, 163
(Márquez, J., dissenting).

11 While Wilmore v. Annear, 100 Colo. 106 (1937), upheld the dual-funding
system against an article X challenge, Wilmore addressed only the
legislature’s authority to appropriate funds for local school systems. Id. at
107–08. It did not address whether the General Assembly may mandate a
particular local taxation level. Likewise, the dual-funding system that was
upheld in Department of Social Services v. Board of County Commissioners, 697
P.2d 1 (1985), differs from the School Finance Act in important ways. See
infra, pt. 2.3.

18
 1.2.3. The legislature has more appropriate avenues for obtaining an
answer to its question.
As noted above, “[t]he attorney-general is the natural as well as the
statutory legal adviser of the executive and legislative departments. His
counsel should be solicited; and only as a dernier ressort . . . should the court
be requested to act” Senate Bill No. 65, 12 Colo. at 472; Interrogatories of the
House, 62 Colo. at 190. Indeed, there is a statute that requires the Attorney
General to give a written legal opinion upon the request of the General
Assembly or either house thereof. Colo. Rev. Stat. § 24-31-101(d) (2020).
The General Assembly also has the OLLS to advise it. Id. § 2-3-501; see
also Interrogatories Submitted by the Gen. Assembly, 88 P.3d at 1198 (noting
legal opinion received from OLLS); Letter from John W. Suthers, Att’y Gen.,
to Bill Ritter, Governor, et al (Apr. 27, 2007) (same) (attached as Ex. D).
Yet it does not appear the General Assembly has obtained an opinion
on the present matter from either of these advisors. Gardner Aff. ¶¶ 7–9.
Competent and accomplished lawyers staff the Attorney General’s office
and the OLLS. There is no obvious reason why the legislature cannot or
should not receive their views on the issue before resorting to an
interrogatory. Cf. Interrogatories Submitted by the Gen. Assembly, 88 P.3d at
1198 (Colo. 2004) (opinions received from Attorney General and OLLS prior
to sending interrogatory); In re Interrogatories Relating to the Great Outdoors
Colo. Trust Fund, 913 P.2d 533, 537 n.4 (Colo. 1996) (Attorney General opinion
informed passage of statute that was later subject of interrogatory); In re
Senate Concurrent Resolution No. 10, 328 P.2d 103, 105 (Colo. 1958) (“[T]he
Attorney General’s opinion has been sought and obtained . . . .” (internal

19
quotes omitted)); In re Interrogatories of the Governor, 97 Colo. 528, 529–31
(1935) (interrogatory propounded after receiving Attorney General’s
opinion); In re Senate Resolution No. 2, 94 Colo. 101, 108 (1933) (resolution
noted Attorney General’s opinion); Suthers, supra (noting opinions from
Attorney General, OLLS, and governor’s legal counsel obtained regarding
legislation that eventually led to Mesa County).
Here again is evidence that the legislature has not given sufficient
consideration to the importance and solemnity of the occasion. If the
General Assembly was truly concerned with getting things right, it would
have gone through the normal channels to obtain the reasoned views of
those that both the citizens of Colorado and the legislature itself have
selected for that task. That it did not do so shows that the General
Assembly is using the interrogatory process improperly. It wants to get a
quick-and-dirty answer so it doesn’t have to deal with the inconveniences of
actually litigating the issue. That is not an appropriate use of article VI,
section 3. The Court should not countenance such an abuse of the
interrogatory process.

1.2.4. This case threatens to drag the Court into a long-running

political dispute.
Finally, the Court should be wary of the political context surrounding
this case. This matter could be construed as an attempt by a one-party
legislature12 to get the Court’s imprimatur on a complex and controversial

12A court may take judicial notice of which party controls the legislature.
See Wagschal v. Skoufis, 442 F. Supp. 3d 612, 617 n.2 (S.D.N.Y. 2020); Jackson v.
Bd. of Election Comm’rs, 975 N.E.2d 583, 589 (Ill. 2012) (citations omitted).

20
bill, thereby preventing, dissuading, or at least influencing future litigation.
In re Penitentiary Commissioners is instructive. In that case, the
Governor submitted an interrogatory regarding a dispute he was having
with other state officers over how a particular statute should be construed.
The Governor invoked the constitution by claiming that the other side’s
interpretation was unconstitutional, but the case was, at its core, a political
quarrel. 19 Colo. at 413. The Court, noting the political valence of the issue
and the long-running nature of the dispute, held that it was improper for
the Court to intervene outside of the ordinary litigation process. Id. at 414.
Similar concerns exist here. Though the General Assembly couches its
question in constitutional terms, the wording of the interrogatory—the
claim (decades after the fact) that the Department of Education’s actions
over more than a decade were “without legal authority,” the implication that
voters in 127 districts have already approved the bill’s tax increases—shows
that the legislature is pushing for a particular result by skewing the Court’s
understanding of the situation.
The nature of the vote on S.J. Res. 21-006 is telling as well. In the
Senate, only two members of the minority party voted to submit the
interrogatory. See 73 Colo. S. Journal 306 (Mar. 19, 2021). In the House, none
did. See 73 Colo. H. Journal 364 (Mar. 22, 2021). By comparison, H.J. Res. 20-
1006 (the legislature’s last interrogatory to the Court) came out of the House
via voice vote, 72 Colo. H. Journal 760 (Mar. 14, 2020). The vote in the Senate
was 26 to 3 in favor. 72 Colo. S. Journal 551 (Mar. 14, 2020). The measure’s
sponsors included the leaders of both party caucuses. Id.
Ultimately, then, this is a policy dispute—and a long-running one at

21
that. The General Assembly has dressed it up in constitutional language,
but that does not change the nature of it all. The legislature wants the Court
to settle, once and for all, a political fight that has been going on for
decades. It’s a fight that, as in In re Penitentiary Commissioners, is not really
about the constitution but is instead about competing interpretations of a
statute—in this case, a statute that doesn’t even exist anymore. That is an
improper use of the interrogatory process.
Given the politically fraught nature of the legislature’s inquiry, then, as
well as the other issues discussed above, the Court should reject the General
Assembly’s petition as improvidently granted.
2. T H E P ROPOSED STATUTE I S U NC O NSTITUTIONA L .
2.1. Standard of Review
There is no standard of “review” in an original proceeding.
Nonetheless, given that this case comes to the Court via interrogatory, it is
important to note that the ordinary presumption of constitutionality and
consequent requirement to prove unconstitutionality beyond a reasonable
doubt do not apply. In re Interrogatories on House Bill 99-1325, 979 P.2d 549,
554 (Colo. 1999). One might even say that the opposite presumption is in
effect since, in submitting the interrogatory, the legislature has admitted it
has grave doubts about the constitutionality of the proposed measure. See
S.J. Res. 21-006 at 4; House Bill 99-1325, 979 P.2d at 554; In re Senate Resolution
No. 2, 94 Colo. 101, 113 (1933).

2.2. H.B. 21-1164 Raises Taxes Without a Vote of the People and, Therefore,
Is Unconstitutional.
If the Court chooses to consider the legislature’s question, the Court

22
should hold that H.B. 21-1164 would be unconstitutional. The bill increases
taxes without a vote of the people. TABOR requires, among other things,
“voter approval in advance for . . . [any] tax rate increase[ or] mill levy above
that for the prior year.” Colo. Const. art. X, § 20(4)(a). Therefore, H.B. 21-
1164 violates TABOR.

2.2.1. The legislature’s schemes for getting around The Taxpayer’s Bill
of Rights are little more than sleight of hand.
To understand how H.B. 21-1164 goes about increasing taxes, one
must remember the history of the School Finance Act. From 1994 to 2006 the
Department of Education interpreted the law to require certain districts to
reduce their mill levies. Mesa Cty., 203 P.3d at 525. This ended up increasing
the state share of education spending and reducing the local share. In 2007,
the legislature it amended the law to put a halt on the downward drift of
local mill levies and freeze the mill rate in most jurisdictions. See id. at 526.
Thirteen years later, the General Assembly passed a statute that (a)
declared that the Department of Education had “wrongly interpreted and
applied” the School Finance Act “for property tax years 1994 through 2006.”
2020 Colo. Sess. Laws at 950, and (b) purported to invalidate the 1994–2006
mill rate reductions while also providing tax credits to make up the
difference (the end result being no one actually paid a higher levy in 2020),
id. at 951–52.
And now comes H.B. 21-1164, which makes last year’s theoretical rate
a reality by phasing it in over the next nineteen years. Sec. 1, §§ 22-54-
106(2.1)(a)(II)–(d)(III).
This is a relatively straightforward violation of TABOR. In 2020,

23
property owners will pay one mill levy, and in 2021 and subsequent years
they will pay progressively higher levies. Without voter approval, that
arrangement is unconstitutional.13 Colo. Const. art. X, § 20(4).
Nonetheless, the statutory legerdemain is impressive. The legislature
has employed two tricky moves in an attempt to insulate the School Finance
Act from constitutional challenge and transmogrify, via lawyerly magic, a
tax increase into maintenance of the status quo.
First, in declaring that the Department of Education wrongly
interpreted and applied the School Finance Act decades ago, the legislature
has given itself grounds to argue that the “true” tax rate has been the same
all along so they’re not increasing anything. Second, by mandating the new
mill rate in 2020 but not making anyone pay it until 2021, they’ve left an
opening to argue that the mill levy was not actually above that for the prior
year.
The first of these is the easiest to deal with because the General
Assembly is engaged in motivated reasoning. The truth of the matter is that
the Department employed a reasonable interpretation of an ambiguous

13Whether it would be a violation when applied to a particular district is a

more complicated question, and the potentially variable effect of the bill is
one of the reasons this brief urges the Court not to address H.B. 21-1164 at
all. Nonetheless, the General Assembly admits that the bill would effect a
year-over-year mill levy increase in “127 school districts.” S.J. Res. 21-006 at 4;
accord Legislative Counsel Staff, Revised Fiscal Note, app. B (attached as Ex.
E). Thus, it is fair to say that, in a good number of its applications, H.B. 21-
1164 would violate TABOR (especially given the many ballot issues in the
Mesa County record that foreswore tax increases, see Herrmann Aff., Ex. A).

24
statute.14 The legislature acquiesced in that interpretation for thirteen years
and then, only when the cumulative effects became undesirable, decided to
amend the law. Even when the legislature decided to put an end to the
Department’s interpretation in 2007, though, it did not declare that the
Department had been wrong. That declaration did not come until another
thirteen years later when a different General Assembly—containing only a
handful of legislators who had been around in 2007,15 Gardner Aff. ¶¶ 10–
11, and no one who had voted on the original 1994 Act—decided they could
dodge responsibility for a tax increase by blaming it on the executive
branch. In general, but especially given these circumstances, the Court
should “not consider [itself] bound by a subsequent legislature’s
pronouncement of legislative intent.” Montezuma Well Serv., Inc. v. Indus.
Claim Appeals Office, 928 P.2d 796, 799 (Colo. App. 1996) (citing Regents of the
Univ. of Colo. v. Meyer, 899 P.2d 316 (Colo. App. 1995); BQP Enterprises v.

14While the legislature later concluded that the results of this interpretation
were undesirable, it is hard to say that the Department’s position was
completely unreasonable. See generally Stell v. Boulder Cty. Dep’t of Soc. Servs.,
92 P.3d 910, 915 (Colo. 2004) (“If it has a reasonable basis in law . . . a court
will generally accept an agency’s interpretation of [a] statute . . . .” (citation
omitted)); Ryals v. St. Mary-Corwin Reg’l Med. Ctr., 10 P.3d 654, 660 (Colo.
2000) (“We normally will defer to an agency’s own interpretation of its
statutory mandate.” (citation omitted)); Smith-Brooks Printing Co. v. Young,
103 Colo. 199, 209 (1938) (“The courts do not sit in judgment upon
questions of . . . administrative discretion.” (internal quotes omitted)).

Three-fourths of those legislators are among those submitting this brief.

15

Gardner Aff. ¶¶ 10–11.

25
State Bd. of Equalization, 694 P.2d 337 (Colo. App. 1984)).
Furthermore, if the legislature could avoid TABOR merely by deciding
via simple majority vote that some past mill levy had been wrong and the
true, correct rate was actually much higher, the constitutional requirement
of voter approval for tax increases would be meaningless. See generally The
Emily & the Caroline, 22 U.S. (9 Wheat.) 381, 390 (1824) (rejecting
interpretation that would make “evasion of the law . . . almost certain”);
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 63 (2012) (“A textually permissible interpretation that furthers rather
than obstructs the document’s purpose should be favored.”). Indeed,
TABOR’s measure of a mill levy increase—whether the levy is “above that
for the prior year,” art. X, § 4(a)—seems designed to thwart this sort of
trickery.
Getting past the General Assembly’s second gimmick takes a bit more
explanation. In short, the ploy of raising the mill rate one year but not
taxing anyone at that rate until a year later only works if one conflates the
statutory mill rate with the mill levy. A “mill rate” is “[a] tax applied to real
property whereby each mill represents $1 of tax assessment per $1,000 of
the property’s assessed value.” Mill Rate, Black’s Law Dictionary (10th ed.
2014). The levy however, is not just the notional tax rate but the actual
amount that is imposed and extracted from the property owner. See Levy,
Black’s Law Dictionary (10th ed. 2014). 16

16Even the definitions of “levy” that don’t relate to taxes still have a sense
that something is actually taken or received by the government. For
example, Black’s includes among the additional definitions of “levy” “[t]he

26
 In most circumstances, the rate and the levy are the same. (especially
because the constitutional requirement of uniform property taxation
generally prohibits the sort of carve-outs and tax credit schemes that are
common in the taxation of income, Colo. Const. art. X, § 3(1)). It is only in
the odd situation we see here, where the statutory scheme sets the rate at
“x” but prevents anyone from being levied anything beyond a functional
rate of “y,” that the difference between the rate and the levy becomes
material.
TABOR says that the appropriate measure of a property tax increase is
the levy, not the rate. Art. X, § 4(a). Insofar as districts will be collecting
taxes at an effective rate that eclipses the effective rate of the previous year,
that is a mill levy increase. And if the increase hasn’t been approved by the
voters, it is unconstitutional. That is true irrespective of what the legislature
declares the “true” mill levy rate to be. Therefore, insofar as H.R. 21-1164
would require year-over-year increases in the effective rate of taxation—i.e.,
the levy—it would be unconstitutional in any district whose voters have not
approved such increases. That the legislature set some other, notional rate
last year is immaterial.
Even without wrangling over rates versus levies and whether the
Department of Education properly interpreted a statute three decades ago,
however, one can see H.B. 21-1164 would cause mill levy increases simply
by remembering that, in interpreting a citizen-initiated constitutional

enlistment of soldiers into the military” and “[t]he legally sanctioned

seizure and sale of property.” Id.

27
provision like TABOR, courts do not apply hyper-technical readings or
scrutinize the text the way they would if it were passed by the legislature.
Bruce v. City of Colo. Springs, 129 P.3d 988, 993 (Colo. 2006). Rather, a court’s
task is to determine what the People believed the amendment would do
when they voted it into law. See Havens v. Bd. of Cty. Comm’rs, 924 P.2d 517,
522 (Colo. 1996). So what would an average citizen think about all this?
Well, where he’s charged, say, 23 mills this year and 31 mills next year, he’s
going to call that a tax increase. No amount of tax-policy presto chango is
going to alter that simple truth.

2.2.2. Despite the factual similarities between this case and Mesa
County Board of County Commissioners v. State, the legal
questions are dissimilar.
Nothing in Mesa County affects the arguments above. That case was
dealing with a different issue. So although the resolution cites Mesa County
four different times, see S.J. Res. 21-006 at 2–3, that case is useful mostly for
its background information, not for its legal analysis.
The only common legal thread between Mesa County and the present
case is that they both required the Court to construe article X, section 4. But
the similarities stop there. The question in Mesa County was whether
stopping the mill levy reductions discussed above was a “tax policy change
directly causing a net tax revenue gain,” art. X, § 20(4). 203 P.3d at 528–31.
The question here involves a different phrase: TABOR’s requirement for
voter approval of “tax rate increase[s or] mill lev[ies] above that for the prior
year,” art. X, § 20(4). As the Court made clear in Mesa County, “no mill levy
increased as a result of [the law at issue in that case;] the property tax rate

28
was unaffected.” 203 P.3d at 526. Thus, the Court had no reason to discuss
the constitutional provisions regarding tax increases.
Stray comments in Mesa County such as “if a district conducts a valid
revenue limit waiver, it need not also conduct a tax rate change election,” id.
at 530, must be understood in this context. The Court was discussing a tax
policy change that led to increased revenue but no tax increases. This
statement is obiter dictum. It is “not controlling precedent.” Main Elec., Ltd.
v. Printz Servs. Corp., 980 P.2d 522, 526 n.2 (Colo. 1999).
Nor is this dictum an accurate statement of the law. The Court was
expounding on the statement in article X, section 20(7)(d) that “[v]oter-
approved revenue changes do not require a tax rate change.” There are two
plausible interpretations for this sentence. But neither of them applies a
blanket exemption, in perpetuity, from the voter-approval requirements for
tax increases once a district gets permission to retain excess revenues.
One interpretation merely applies the straightforward meaning of the
sentence—i.e., that voters can approve retaining excess revenue without also
approving a tax rate change.
The other plausible interpretation places the sentence within the
context of the subsection where it appears. See Clint v. Stolworthy, 357 P.2d
649, 651 (Colo. 1960). Article X, section 7 is only tangentially related to
elections. Immediately prior to the quoted sentence, the provision
references two other subsections that require refunds when spending or
revenue limits are exceeded. One of the allowable methods for such refunds
is rate reductions. Colo. Const. art. X, § 20(1). Thus, in this interpretation, all
the sentence is saying is that if voters approve excess spending or revenue,

29
there is no need to reduce the tax rate.
Regardless of which of these two interpretations is the correct one,
however, the interpretation that the Mesa County Court stated (in passing,
while construing an entirely different part of TABOR) is mistaken. For one
thing, that interpretation is not a natural reading of the sentence. See
generally Preston v. Dupont, 35 P.3d 433, 440 (Colo. 2001) (“We will not strain
to give language other than its plain meaning.”). To get to the Mesa County
interpretation, one would need to add words that aren’t there. That would
be contrary to the judicial role. Turbyne v. People, 151 P.3d 563, 567 (Colo.
2007). TABOR says “[v]oter-approved revenue changes do not require a tax
rate change.” To support the Mesa County conclusion, however, the sentence
would need to read “voter-approved revenue changes eliminate any need for
future voter approval of tax increases.” Or, perhaps “voter-approved revenue
changes do not require a later vote on a tax rate change” (though that second
option would still be an awkward way of stating things if one wanted to
enact the Mesa County interpretation). Particularly since TABOR so
famously gave the voters final say on tax increases, it would be odd to hide
a provision taking away that power in ambiguous language in the same
document.
Nor is there much evidence that anyone else has ever interpreted
subsection 7 that way. Nearly every school district in the state has received
permission from its voters to retain revenue in excess of the TABOR limits.
See Herrmann Aff. ¶ 5. If those votes also allowed the district to set tax rates
willy nilly, one would expect a reported case about it somewhere (given the
frequency and high profile of TABOR suits). Or some sort of public or

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legislative outcry over such fluctuations. Or at least a legislative awareness
thereof. Indeed, if nearly every district could set its mill levy at whatever it
wished, the smoke and mirrors in the 2020 amendments and H.B. 21-1164
would be unnecessary.
Ultimately, then, Mesa County does not control this case. Its
relationship to the situation at hand is a historical matter, not a legal one.
No one’s taxes were increased in Mesa County; the Court did not have to
consider the impact of the numerous de-Brucing measures that specifically
prohibited future tax increases. Therefore, the decision did not settle the
question that is before the Court now.

2.3. The Proposed Bill’s Mandating of a Particular Mill Levy Violates the
Constitution’s Prohibition on Municipal Taxation by the General
Assembly and Coerces School Boards in Violation of the Constitution’s
Local Control Provision.
H.B. 21-1164 would also violate article IX, section 15 and article X,
section 7 of the Colorado Constitution. Respectively, those provisions (a)
grant local school boards control over schools within their districts and (b)
prohibit the General Assembly from “impos[ing] taxes for the purposes of
any county, city, town or other municipal corporation.” 17 Id. By mandating a
particular level of taxation in a district, the General Assembly has
unconstitutionally made itself, rather than the school district, the taxation

17“A school district is not strictly a municipal corporation. It is a quasi

municipal corporation . . . .” School Dist. No. 98 v. Pomponi, 79 Colo. 658, 660
(1926). Nonetheless, it has generally been treated as a municipal
corporation for the purposes of article X, section 7. See People ex rel. Sch.
Dist. No. 2 v. Cty. Commr’s, 12 Colo. 89, 92–93 (1888).

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authority for the local portion of school funding.
Colorado’s dual funding system for schools—where both the state and
local districts chip in—is constitutional in broad strokes. Mesa County, 203
P.3d at 528; Wilmore, 100 Colo. 106, passim. There is both a state and a local
purpose in funding schools. See generally Dep’t of Soc. Servs., 697 P.2d at 13
(“When . . . the effects of state-wide programs directly benefit residents of
specific localities, we must conclude that such programs serve the
‘purposes’ of the local governmental units which receive those services as
well as cognizable interests of the state.”) The legislature’s duty to “provide
for . . . a thorough and uniform system of free public schools,” Colo. Const.
art. IX, § 2, authorizes it to exert some level of control over school districts
despite the general preference for local control, id., § 15. Within these
bounds, the legislature has considerable authority: for example, it may
mandate a certain level of funding and may also put a cap on a district’s mill
levy. See Dep’t of Soc. Servs., 697 P.2d at 5–8.
Nonetheless, in order for a tax contributing to a jointly funded service
to maintain its locally imposed character, the local taxing authority must
maintain some discretion, including “discretion as to the amount of the
levy.” Pueblo Junior Coll. Dist. v. Donner, 387 P.2d 727, 729 (1963); accord Dep’t
of Soc. Servs., 697 P.2d at 13 (noting local authority maintained “budgetary
authority to establish the total proposed public expenditures in [its]
county”).
Here, however, H.B. 21-1164 will mandate a particular mill levy for at
least 127 school districts. See S.J. Res. 21-006 at 4. Despite the local use of the
funds, the local taxation authority will be limited to the ministerial act of

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certifying the mill levy that the General Assembly has dictated it will certify.
Accord Pueblo Junior Coll., 387 P.2d at 30.
While the school districts here will be spending money on a local
purpose, the lack of any discretion over the amount of the levy has
transferred taxation power from the district to the General Assembly.
Therefore, the proposal in H.B. 21-1164 constitutes a violation of article X,
section 7.
This loss of local control is particularly problematic in the present
context because of our constitution’s requirement for local control of
education, art. IX, § 15. The “emphasis on local control is party based on the
concern that greater state control over funding will lead to greater state
power of local educational programs and policies.” Lujan v. State Bd. of
Educ., 649 P.2d 1005, 1022 (Colo. 1982). Where the General Assembly
mandates a particular mill levy (and not just a minimum or cap), the state is
in control, not the school board.
It is true that the School Finance Act has an out for districts that don’t
want to go along with the state-mandated mill levy: the Department of
Education will simply reduce the state’s share of funding anyway. Colo. Rev.
Stat. § 22-54-106(6) (2020). But such a measure is so coercive as to violate the
local control clause.
The undersigned is not aware of any Colorado cases that analyze
whether funding conditions are unconstitutionally coercive. That is
probably because, for the most part, municipal and quasi municipal bodies
“are not independent political entities” and therefore “have no standing to
contest the directives given them by the state.” Bd. of Cty. Comm’rs v. Fifty-

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First Gen. Assembly, 599 P.2d 887, 889 (1979).
The local control clause makes things different for school districts,
however, because it grants a school district a power and existence not only
independent of the state but in fact superior to the state within the district’s
realm. As such, the relationship between a school district and the state is
analogous to the dual sovereign relationship between a state and the federal
government. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 50 (1973).
And there is federal caselaw addressing coercion in that analogous
situation.
In the federal realm, the question is whether a particular condition on
funding has become “so coercive as to pass the point at which pressure
turns into compulsion.” South Dakota v. Dole, 483 U.S. 203, 211 (1987)
(internal quotes omitted). Coercion is generally measured by the percentage
of funds that a refuser stands to lose. See Nat’l Fed’n of Indep. Bus. v. Sebelius
(NFIB), 567 U.S. 519, 580–82 (2012); Dole, 483 U.S. at 211.
In NFIB, the U.S. Supreme Court found that a threatened loss of 10%
of a governmental entity’s budget was not just coercive but “a gun to the
head.” 567 U.S. at 581. In some cases, the threat that H.B. 21-1164 embodies
is in the same neighborhood. According to the fiscal note on H.B. 21-1164,
some districts would face devastating reductions in funding if they were to
object to the mandated mill levy. For example, in just the first year Aspen
would lose $2,038,230 (approximately 11% of its entire budget). Summit
County would lose $1,670,213 (about 6% of its budget). Keenesburg would
lose $1,370,621 (about 7% of its budget). See Legislative Counsel Staff, supra,
app. B. The losses would only mount thereafter as additional reductions

34
phase in. As such, the proposed bill is unduly coercive and therefore
violates local control.
CONCLUSION
For the foregoing reasons, the legislators submitting this brief request
that the Court dismiss the interrogatory as improvidently granted. Failing
that, they request that the Court declare that H.B. 21-1164 would be
unconstitutional if enacted.

_________________________________
Daniel E. Burrows #40284
Public Trust Institute

C ERTIFICATE OF S ERVI CE

I certify that the foregoing document was delivered to the Clerk of the
Court on April 8, 2021, via electronic filing. Consistent with C.A.R. 30(e),
service on all other parties who have entered an appearance (the General

Assembly, the Governor, the Attorney General, and Colorado Rising State
Action) will be accomplished by the Court’s E-System.

_________________________________
Daniel E. Burrows
Public Trust Institute

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