COLORADO SUPREME COURT

101 W. Colfax, # 800

Denver, Colorado 80202

Colorado Court of Appeals, 2013CA1621
District Court of Denver County, 2012CV3113

Petitioner: TABOR FOUNDATION, a Colorado
non-profit corporation,

v.

Respondents: COLORADO BRIDGE ENTERPRISE;
COLORADO TRANSPORTATION
COMMISSION; TREY ROGERS, GARY M.
REIFF, HEATHER BARRY, KATHY
GILLILAND, KATHY CONNELL, DOUGLAS
ADEN, STEVE PARKER, LES GRUEN, GILBERT
ORTIZ, EDWARD J. PETERSON, all in their
official capacities as members of the Colorado
Transportation Commission.













COURT USE ONLY
Jeffrey W. McCoy (Atty. Reg. No. 43562)
Steven J. Lechner (Atty. Reg. No. 19853)
MOUNTAIN STATES LEGAL FOUNDATION
2596 S. Lewis Way
Lakewood, Colorado 80227
(303) 292-2021
(303) 292-1980 (facsimile)
jmccoy@mountainstateslegal.com
lechner@mountainstateslegal.com


Case No.:
2014SC766








Reply In Support Of Petition For Writ Of Certiorari

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R. 28
and C.A.R. 32, including all formatting requirements set forth in these rules.
Specifically, the undersigned certifies that:
The brief complies with C.A.R. 53(d). It contains 3,144 words, exclusive of
this Certificate of Compliance, the Table of Contents, the Table of Authorities, the
Certificate of Service, the Supplemental Appendix, and the signature block.


/s/ Jeffrey W. McCoy
Jeffrey W. McCoy


i
TABLE OF CONTENTS

Page

CERTIFICATE OF COMPLIANCE

TABLE OF AUTHORITIES .................................................................. ii

INTRODUCTION .................................................................................. 1
ARGUMENT .......................................................................................... 1
I. RESPONDENTS ATTEMPT TO MISCHARACTERIZE
THIS CASE IS UNAVAILING ................................................... 1

II. THIS COURT SHOULD GRANT THE PETITION TO
ENSURE A MEANINGFUL DISTINCTION BETWEEN A
TAX AND A FEE ........................................................................ 8

III. THIS COURT SHOULD GRANT THE PETITION TO
ENSURE MEANINGFUL LIMITS ON TABOR-EXEMPT
ENTERPRISES ............................................................................ 12

CONCLUSION ....................................................................................... 14

CERTIFICATE OF SERVICE


ii
TABLE OF AUTHORITIES
Page
Cases

Anema v. Transit Const. Authority,
788 P.2d 1261 (Colo. 1990) ............................................................... 11

Barber v. Ritter,
196 P.3d 238 (Colo. 2008) ................................................................. 8, 9

Bickel v. City of Boulder,
885 P.2d 215 (Colo. 1994) ................................................................. 2

Bloom v. Fort Collins,
784 P.2d 304 (Colo. 1989) ................................................................. 10

Board of County Comrs v. Vail Associates, Inc.,
19 P.3d 1263 (Colo. 2001) ................................................................. 34

Cherry Hills Farms, Inc. v. City of Cherry Hills Village,
670 P.2d 779 (Colo. 1983) ................................................................. 4

City and County of Denver v. Gushurst,
210 P.2d 616 (Colo. 1949) ................................................................. 12

City of Greenwood Vill. v. Pet. for Proposed City of Centennial,
3 P.3d 427 (Colo. 2000) ..................................................................... 8

Colorado Common Cause v. Bledsoe,
810 P.2d 201 (Colo. 1991) ................................................................. 4

Federal Power Commn v. New England Power Co.,
415 U.S. 345 (1974) ........................................................................... 9

Gen. Motors Corp. v. City & Cnty. of Denver,
990 P.2d 59 (Colo. 1999) ................................................................... 9


iii
Goldberg v. Sweet,
488 U.S. 252 (1989) ........................................................................... 9

Hinojos-Mendoza v. People,
169 P.3d 662 (Colo. 2007) ................................................................. 7

Lindner Packing & Provision Co. v. Industrial Comm'n,
60 P.2d 924 (Colo. 1936) ................................................................... 12

National Cable Television Assn v. United States,
415 U.S. 336 (1974) ........................................................................... 9

Nicholl v. E-470 Public Highway Authority,
896 P.2d 859 (Colo. 1995) ................................................................. 8, 9, 12, 13

Sanger v. Dennis,
148 P.3d 404 (Colo. App. 2006) ........................................................ 8

Submission of Interrogatories on Senate Bill,
93-74 852 P.2d 1 (Colo. 1993) .......................................................... 7

Constitutional Provisions

Colo. Const. art. X, 20(2)(d) ................................................................ 12

Colo. Const. art. X, 20(4)(a) ................................................................ 3

Statutes

C.R.S. 24-77-101 et seq. ...................................................................... 6

C.R.S. 24-77-101(2)(a) ................................................................... 6

C.R.S. 24-77-102 ................................................................................. 2, 5, 6, 7, 14

C.R.S. 24-77-103 ................................................................................. 7


iv
C.R.S. 43-4-805 .................................................................................. 5

C.R.S. 43-4-805(2)(b)(I) ...................................................................... 2, 3

C.R.S. 43-4-805(2)(b)(II) ..................................................................... 4

C.R.S. 43-4-805(2)(c) .......................................................................... 3, 4, 5

C.R.S. 43-4-805(4) ............................................................................... 5, 13

C.R.S. 43-4-805(5)(g) .......................................................................... 3

Other Authorities

Daniel D. Domenico, The Constitutional Feedback Loop: Why No
State Institution Typically Resolves Whether A Law Is
Constitutional and What, If Anything, Should Be Done About It, 89
Denv. U. L. Rev. 161 (2011) .................................................................. 12

E-470 Public Highway Authority, Paying Tolls, available at
https://www.expresstoll.com/PayingTolls/Pages/Paying-Tolls.aspx
(last visited October 27, 2014) ................................................................ 13

Richard A. Posner, The Rise and Fall of Judicial Self-Restraint,
100 Cal. L. Rev. 519 (2012) ................................................................... 1






1
INTRODUCTION
The TABOR Foundation (Foundation) asks this Court to review the
decision of the Court of Appeals in order to clarify the constitutional limits on
government action. Respondents Colorado Bridge Enterprise (CBE) and
Colorado Transportation Commission (Commission) incorrectly argue that this
Court should deny the Petition. See Opposition Brief to Petition for Writ of
Certiorari (Opp.). As demonstrated in the Petition, and further demonstrated
below, this Court should grant the Petition because the Court of Appeals decision
fails to provide any meaningful limitation on government conduct.
ARGUMENT
I. RESPONDENTS ATTEMPT TO MISCHARACTERIZE THIS CASE
IS UNAVAILING.

Respondents misrepresent the nature of this case and incorrectly argue that,
if this Court grants the Petition, it will have to review the facial constitutionality of
several statutes and determine whether Petitioners proved those statutes were
unconstitutional using a beyond a reasonable doubt standard of review.
1
Opp. at

1
The beyond a reasonable doubt standard is archaic and undefined. Richard A.
Posner, The Rise and Fall of Judicial Self-Restraint, 100 Cal. L. Rev. 519, 522
(2012) (explaining that the beyond a reasonable doubt standard was created by
Professor Thayer in 1893); Daniel D. Domenico, The Constitutional Feedback
Loop: Why No State Institution Typically Resolves Whether A Law Is
Constitutional and What, If Anything, Should Be Done About It, 89 Denv. U. L.

2
47. As the Court of Appeals recognized, this is not an accurate interpretation of
the Foundations Complaint. See COA Op. at 8 (not applying the beyond a
reasonable doubt standard). In this suit, the Foundation alleges that CBE violated
TABOR by levying a tax on vehicle registration and by issuing revenue bonds
without first seeking voter approval. See Complaint 4362.
2
This suit
challenges CBE and the Commissions actions and seeks an injunction preventing
CBE from levying the bridge surcharge and issuing debt unless and until it
acquires voter approval. See Complaint Prayer for Relief 17. Accordingly, the
standard of review, as correctly articulated by the Court of Appeals, is [w]here
multiple interpretations of TABOR 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. COA Op. at 8 (citing Bickel v. City of
Boulder, 885 P.2d 215, 229 (Colo. 1994)).
First, Respondents suggest that the Foundations challenge is a facial
challenge to the section establishing the bridge surcharge. Opp. at 45. Although
C.R.S. 43-4-805(2)(b)(I) grants authority to CBE to levy a bridge surcharge,

Rev. 161, 16768 (2011) (Stating that there is a dispute about the scope of the
beyond a reasonable doubt standard and whether it should be applied at all.).
2
The Complaint is reproduced at Supplemental Appendix O. The Supplemental
Appendix is filed concurrently herewith.

3
nothing in that section requires CBE to levy that surcharge without first seeking
voter approval. The section simply provides that the bridge enterprise may. . .
[i]mpose a bridge safety surcharge as authorized in C.R.S. 43-4-805(5)(g).
C.R.S. 43-4-805(2)(b)(I) (emphasis added).
Therefore, C.R.S. 43-4-805(2)(b)(I) is not self-executing. Instead, CBE
chose to exercise its discretion to levy the surcharge without first seeking voter
approval. It is this action that the Foundation challenged. Complaint 51, 62.
Indeed, if CBE had sought, and received, voter approval before levying the
surcharge (or issuing new debt), then it would not have violated TABOR, and
Petitioner would not have sued. See id. Moreover, if a court grants the
Foundations requested relief, CBE will not be prevented from ever levying the
surcharge, it will only be prevented from levying the surcharge without voter
approval. See Colo. Const. art. X, 20(4)(a). Accordingly, and contrary to
Respondents suggestion, the Foundation is not bringing a facial challenge to the
constitutionality of C.R.S. 43-4-805(2)(b)(I).
Second, Respondents attempt to use the General Assemblys suggestion that
the surcharge is a fee to argue that the Foundation is bringing a facial challenge to
the last sentence of C.R.S. 43-4-805(2)(c). Opp. at 45. The General
Assemblys suggestion, however, is merely advisory. Board of County Comrs v.

4
Vail Associates, Inc., 19 P.3d 1263, 1273 (Colo. 2001) ([T]he legislatures
construction of a statutory or constitutional provision is advisory, not binding.);
see also Cherry Hills Farms, Inc. v. City of Cherry Hills Village, 670 P.2d 779,
782 (Colo. 1983) (The [Service Expansion Fee], regardless of its label, is a tax.);
Colorado Common Cause v. Bledsoe, 810 P.2d 201, 206 (Colo. 1991) (Stating that
it is peculiarly the province of the judiciary to interpret the constitution and say
what the law is. (internal quotations and citations omitted)). This Court should
not give the language in C.R.S. 43-4-805(2)(c) any more weight than non-
binding legislative history.
Third, Respondents incorrectly argue that the Foundation is bringing a facial
challenge to the portion of C.R.S. 43-4-805(2)(c) that provides that CBE is a
TABOR-exempt enterprise. Opp. at 5. This is simply not true. The Foundation is
bringing an as-applied challenge to CBEs actions, which demonstrates that it is
not acting as a TABOR-exempt enterprise and, thus, it cannot issue new debt
without voter approval.
3
Although the General Assembly sought to establish CBE

3
As with the bridge surcharge, the statute does not require CBE to issue bonds.
C.R.S. 43-4-805(2)(b)(II).

5
as an enterprise to avoid TABOR, it is the responsibility of CBE to thereafter act in
accordance with TABOR to ensure that it retains its enterprise status.
4

Assuming, arguendo, that CBE did not lose its enterprise status by levying a
tax, then it lost its enterprise status when it received more than ten percent of its
annual revenue in grants from the state. See Petition at 1316. Nothing in C.R.S.
43-4-805 requires the Commission to transfer any funds to CBE, or requires CBE
to accept the funds. C.R.S. 43-4-805(4) (The commission may transfer moneys
from the state highway fund and [t]he bridge enterprise may accept and expend
any moneys so transferred . . . . (emphasis added)). If CBE wanted to keep its
enterprise status, then, at a minimum, it should not have accepted such large
transfers of money from the Commission. Therefore, Respondents actions, rather
than C.R.S. 43-4-805, are at issue in this case.
Finally, Respondents suggest that the Foundation is facially challenging the
constitutionality of the definition of grant in C.R.S. 24-77-102. Opp. at 56.
The Foundation is not challenging that definition, only that the transfer of funds
and property to CBE required CBE to hold an election before it issued any new

4
The General Assembly expressly recognized that CBE could lose its enterprise
status. C.R.S. 43-4-805(2)(c) (The bridge enterprise shall constitute an
enterprise . . . so long as it retains the authority to issue revenue bonds and receives
less than ten percent of its total revenues in grants from all Colorado state and local
governments combined. (emphasis added)).

6
debt. See Complaint 2123; Petition at 1516. In response to these allegations,
Respondents argued that that definition of grant in C.R.S. 24-77-102 applies
and, under that definition, CBE retained its enterprise status. Therefore, the
Foundation did not bring a facial challenge to the definition of grant in C.R.S.
24-77-102, rather Respondents used that definition in defense of its actions.
Furthermore, if this Court grants the Foundations requested relief, the
definition of grant in C.R.S. 24-77-102 will not be rendered null because of its
applicability to TABORs state fiscal year spending limits. See C.R.S. 24-77-
101 et seq. As a result, the Foundation is not bringing a facial challenge to the
definition of grant in C.R.S. 24-77-102 because it will continue to apply in at
least one context, regardless of the outcome of this case.
In fact, even the as-applied constitutionality of the definition of grant is
not at issue in this case because the definitions in C.R.S. 24-77-102 are only
applicable in the context of the state fiscal year spending limit. C.R.S. 24-77-102
(limiting use of the definitions to this article ). As the words of that statute make
clear, C.R.S. 24-77-102 was enacted to facilitate compliance with the state
fiscal year spending limit contained in TABOR. C.R.S. 24-77-101(2)(a). This
limited purpose is reflected by the substantive provisions of the statute, which only

7
apply to state fiscal year spending limits. See, e.g., C.R.S. 24-77-103 (entitled
Limitation on state fiscal year spending--legislative declaration.).
This Courts language in Submission of Interrogatories on Senate Bill 93-74,
852 P.2d 1, 4-5 (Colo. 1993), did not broaden the scope and applicability of the
definitions in C.R.S. 24-77-102. In that case, this Court analyzed C.R.S. 24-
77-102 in the limited context of state fiscal year spending limits. 852 P.2d 1 at 4-5
(Describing the interrogatory as [a]re any lottery proceeds dedicated pursuant to
the provisions of article XXVII of the state constitution, which was also approved
at the 1992 general election, subject to the limitation on state fiscal year spending
set forth in [TABOR]?). Therefore, this Court did not examine C.R.S. 24-77-
102 outside of the limited context provided for in the statute. Accordingly,
Respondents argument that C.R.S. 24-77-102 has broad applicability has no
support and, thus, the constitutionality of the definition of grant in C.R.S. 24-
77-102 is not at issue in this case.
Respondents attempt to mischaracterize the issues before this Court fails
and the beyond a reasonable doubt standard of review is not applicable in this
case. See Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo. 2007) (Stating
that the beyond a reasonable doubt standard applies when the plaintiff is
challenging the facial constitutionality of a statute . . . . (emphasis added)); see

8
Sanger v. Dennis, 148 P.3d 404, 41011 (Colo. App. 2006) (Discussing the
difference between seeking to render a statute utterly inoperative and other
situations). As this Court has stated, [t]he type of constitutional challenge, the
nature of the challenged statute, and the standing of the parties determine how we
approach judicial review in a particular case . . . . City of Greenwood Vill. v. Pet.
for Proposed City of Centennial, 3 P.3d 427, 440 (Colo. 2000). Accordingly,
Respondents standard of review argument is unavailing and does not provide a
compelling reason to deny the Petition.
II. THIS COURT SHOULD GRANT THE PETITION TO ENSURE A
MEANINGFUL DISTINCTION BETWEEN A TAX AND A FEE.

Respondents attempt to downplay this Courts precedent that a fee must be
assessed in direct relation to services provided . . . . Nicholl v. E-470 Public
Highway Authority, 896 P.2d 859, 869 (Colo. 1995); see also Barber v. Ritter, 196
P.3d 238, 249 (Colo. 2008) (If the [statute] discloses that the primary purpose for
the charge is to finance a particular service utilized by those who must pay the
charge, then the charge is a fee.) (emphasis added). As demonstrated in the
Petition, and further demonstrated below, this Courts rulings in Nicholl and
Barber are significant, and the statements of this Court are not just partial
phrases that the Court of Appeals could choose to ignore. Opp. at 12; Petition at
510.

9
Contrary to this Courts precedent, the Court of Appeals opinion essentially
eliminates the distinction between a tax and a fee. Under the definition proffered
by the Court of Appeals and Respondents, a charge is a fee if the government says
it is a fee and the charge is used to fund some particular program. Opp. at 814.
According to them, if the payer of a charge is reasonably likely to benefit from or
use the service then it does not matter if the payer actually receives a direct
benefit as a result of paying the charge. COA Op. at 18. In fact, under the Court
of Appeals new precedent, a fee may be charged to persons who may not utilize
the services at all. COA Op. at 17.
This definition, however, is no different from the definition of a tax. Taxes
fund services that provide generalized or indirect benefits. Gen. Motors Corp. v.
City & Cnty. of Denver, 990 P.2d 59, 73 (Colo. 1999) (The taxpayer enjoys a
wide range of benefits from the state . . .) (quoting Goldberg v. Sweet, 488 U.S.
252, 266-67 (1989)). Fees, on the other hand, provide specific or direct benefits, as
this Courts precedent makes clear. Nicholl, 896 P.2d at 869; Barber, 196 P.3d at
249; see also National Cable Television Assn v. United States, 415 U.S. 336, 340
41 (1974) (A fee . . . bestows a benefit on the applicant, not shared by other
members of society.); Federal Power Commn v. New England Power Co., 415
U.S. 345, 350 (1974) (A charge will most often be a tax when the identification of

10
the ultimate beneficiary is obscure and the service can be primarily considered as
benefiting broadly the general public.). By ignoring this Courts language, the
Court of Appeals has now removed that distinction.
The Court of Appeals also misinterpreted the pre-TABOR case, Bloom v.
Fort Collins, 784 P.2d 304, 310 (Colo. 1989). COA Op. at 20. In that case, this
Court recognized the need for a direct connection between the charge assessed and
the service provided. In Bloom, the only properties assessed were those that
actually benefited from the service, because they were developed lots adjacent to
the city streets that were to be repaired by the fee collected:
The owners and occupants of developed lots subject to the fee receive
the benefit of a program of city maintenance calculated to provide
effective access to and from residences, buildings, and other areas
within the city.

Bloom, 784 P.2d at 310. Moreover, the fee in Bloom was based on usage, because
it varies with the amount of the lots street frontage and the traffic generation
factor (or estimated street usage) applicable to the lot. Id. at 309. It would have
been impossible for the properties charged in Bloom to avoid benefiting from the
fee, because they were physically adjacent to the roads that were being maintained.
The opposite is true in this case, as many of the vehicles assessed the bridge
surcharge never come within miles of a CBE bridge. See Petition at 910.

11
Similarly, this Courts decision in the pre-TABOR case Anema v. Transit
Const. Authority, 788 P.2d 1261, 1267 (Colo. 1990), also recognized the need for a
direct connection between the charge and the service provided. In that case, the
only fee payers were owners of commercial property within the service area and
employers within the service area. Id. at 126263. The fee payers received a
direct and immediate benefit from the fees they paid because the service
performed was the determination of the feasibility, contours, and cost of rapid rail
transit. Id. at 1267. The Courts reasonably likely language did not apply to
the service provided, i.e. the plan, but rather the extent of the plan. Id. Indeed, the
only benefit the fee payers could possibly receive was the plan itself, since the
entity collecting the charge lacked the authority to actually build the system
envisioned. Id. at 1263. Accordingly, Anema also requires a direct connection
between the fees paid and a benefit that actually accrues to the property assessed
the charge.
As this Courts precedent has made clear, a fee requires a direct connection
between the charge assessed and the service provided. The Court of Appeals failed
to follow that precedent, and now the difference between a tax and a fee is
nonexistent. In order to ensure a meaningful distinction between a tax and a fee,
this Court should grant the Petition.

12
III. THIS COURT SHOULD GRANT THE PETITION TO ENSURE
MEANINGFUL LIMITS ON TABOR-EXEMPT ENTERPRISES.

The Court of Appeals decision also removes any meaningful distinction
between a TABOR-exempt enterprise and a government district. TABOR defines
enterprise as a government-owned business authorized to issue its own revenue
bonds and receiving under 10% of annual revenue in grants from all Colorado state
and local governments combined. Colo. Const. art. X, 20(2)(d). As this Courts
precedent makes clear, a business is independent, self-supporting, and receives
income through market exchanges. See Nicholl, 896 P.2d at 868; Lindner Packing
& Provision Co. v. Industrial Comm'n, 60 P.2d 924, 926 (Colo. 1936); City and
County of Denver v. Gushurst, 210 P.2d 616, 619 (Colo. 1949); see also Op. Atty
Gen. No. 95-07. The Court of Appeals failed to follow this precedent, however,
and failed to articulate a distinction between a government-owned business and
any other government entity.
Respondents argue that Nicholl does not support the conclusion that a
TABOR-exempt business requires a competitive market exchange and incorrectly
state that there was no competitive market exchange in Nicholl. Opp. at 15. That
motorists chose to use E-470 demonstrates that the Authority was engaging in a
competitive market exchange. Nicholl, 896 P.2d at 875 (Erickson, J., concurring
and dissenting) (By allowing access to the highway in exchange for user fees, the

13
Authority is engaging in a business.). Common sense indicates that the Authority
would not set the toll at a rate so high that no one would be willing to pay it. That
is the essence of a competitive market exchange.
5
Op. Atty Gen. No. 95-07
([W]here an enterprise is also providing market driven services to the public, as
here, there is a greater likelihood that the enterprise meets TABOR restrictions.).
Accordingly, because the Court of Appeals misrepresented this Courts opinion in
Nicholl, the Petition should be granted.
The Court of Appeals decision also fails to give any meaning to TABORs
ten percent limit. The purpose of that limit is to distinguish a purported enterprise
from a governmental unit. Nicholl, 896 P.2d at 869. The Court of Appeals
decision does not maintain this distinction, because it allows one government
entity to fund another government entity without limitation.
As demonstrated in the Petition, and further demonstrated above, CBE
would not have received any federal funds without the Commissions independent
decision to transfer those funds. See Petition at 1316; C.R.S. 43-4-805(4).
Although CBE may have applied to the federal government for those funds, it had

5
The fact that the Authority offers discounts for ExpressToll users further
demonstrates that it is engaged in a competitive market exchange. See E-470
Public Highway Authority, Paying Tolls, available at
https://www.expresstoll.com/PayingTolls/Pages/Paying-Tolls.aspx (last visited
October 27, 2014).

14
no right to those funds unless and until the Commission decided to transfer the
funds. Id. Therefore, the Court of Appeals erred when it concluded that the
Commission had no control over the $14.4 million it transferred to CBE. COA Op.
at 2627.
6
Accordingly, this Court should grant the Petition to provide a
meaningful distinction between an enterprise and a government district.
CONCLUSION
This Court should grant the Petition for Writ of Certiorari.
Respectfully submitted this 27th day of October 2014.

E-filed in accordance with C.A.R. 30.



/s/ Jeffrey W. McCoy
Jeffrey W. McCoy
Steven J. Lechner
Mountain States Legal Foundation
2596 South Lewis Way
Lakewood, Colorado 80227
(303) 292-2021
jmccoy@mountainstateslegal.com
lechner@mountainstateslegal.com

Attorneys for Petitioner

6
Furthermore, as demonstrated above, the Court of Appeals mistakenly ruled that
the definition of grant in C.R.S. 24-77-102 applied. COA Op. at 2223.


CERTIFICATE OF SERVICE

I certify that on the 27th day of October 2014, the foregoing document was
filed with the Court and true and accurate copies of same were served on counsel
of record via the Integrated Colorado Courts E-Filing System.
/s/ Jeffrey W. McCoy
Jeffrey W. McCoy

Pursuant to C.A.R. 30(f,) an original copy of the Brief is maintained at the office of
Petitioners counsel.