DATE FILED: April 8, 2021 4:58 PM

Colorado Supreme Court FILING ID: 19F3766676478

2 East 14th Avenue CASE NUMBER: 2021SA97
Denver, Colorado 80203

Original Proceeding
Pursuant to Article VI, Section 3 of the Constitution
of the State of Colorado

In Re: Interrogatory on House Joint Resolution 21-

1164 Submitted by the Colorado General Assembly.

Attorney for the Colorado General Assembly:

Mark G. Grueskin, #14621

Recht Kornfeld, P.C.
1600 Stout Street, Suite 1400 Case Number:
Denver, CO 80202 2021SA97
(303) 573-1900
Fax: (303) 446-9400
mark@rklawpc.com

ANSWER BRIEF OF THE COLORADO GENERAL ASSEMBLY

 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. 28(g).
Choose one:
X It contains 8,497 words.
 It does not exceed 30 pages.
The brief complies with C.A.R. 28(k).
X For the party raising the issue:
It contains under a separate heading (1) a concise statement of the applicable
standard of appellate review with citation to authority; and (2) a citation to
the precise location in the record, not to an entire document, where the issue
was raised and ruled on.
 For the party responding to the issue:
It contains, under a separate heading, a statement of whether such party
agrees with the opponent’s statements concerning the standard of review and
preservation for appeal, and if not, why not.
I acknowledge that my brief may be stricken if it fails to comply with any of the
requirements of C.A.R. 28 and C.A.R. 32.

s/ Mark G. Grueskin
Mark G. Grueskin
Attorney for the Colorado General Assembly
 TABLE OF CONTENTS
INTRODUCTION....................................................................................................1
ISSUE PRESENTED FOR REVIEW ....................................................................2
NATURE OF THE CASE, FACTS AND PROCEDURAL HISTORY, AND
ORDERS FOR REVIEW ........................................................................................3
I. Nature of the Case. .........................................................................................3
II. Facts and Procedural History .......................................................................6
A. Overview of Colorado’s School Funding System .....................................6
B. CDE Misapplied the PSFA and TABOR, causing a dramatic change in
the balance of state and local funding for schools. .........................................7
C. The General Assembly corrected CDE’s error by applying voters’
TABOR waivers to allow school districts to keep “all” available school
funding. .............................................................................................................12
III. Orders for Review .....................................................................................16
SUMMARY OF THE ARGUMENT ...................................................................16
LEGAL ARGUMENT ...........................................................................................18
I. HB21-1164 is a constitutional exercise of the General Assembly’s
responsibility to provide for a “thorough and uniform” system of public
education. .............................................................................................................18
A. Standard of Review; Preservation of Issues Presented. .........................18
B. Eliminating the temporary tax credit to restore the balance of state-
local funding for public schools passes the rational basis test and is
constitutional. ...................................................................................................19
II. Reducing the temporary property tax credit as provided in HB21-1164
does not require local or state voter approval. ................................................22
A. Standard of Review; Preservation of Issues Presented. ..........................22
B. School district elections are not required in school districts that
reduced their mill levies due to CDE’s erroneous instructions about
TABOR. ............................................................................................................23
 1. School district voters who approved their district’s use of “all” or “full”
revenue did so based on the then-existing mill levy, not the erroneously
reduced mill levies advised by CDE. .............................................................23
2. Voters specifically intended to maintain their then-existing mill levies. ..25
3. Correcting CDE’s errors in advising school districts about TABOR does
not require voter approval. .............................................................................27
4. Corrections that require mill levy adjustments are consistent with
TABOR and do not require advance voter approval. .....................................31
5. Any gap in time between district voter approval of use of property tax
revenue at then-existing rates and the passage of HB21-1164 does not harm
district voters or change the impact of their vote. ..........................................33
C. No statewide election is required in order to give effect to HB21-1164.
............................................................................................................................35
CONCLUSION.......................................................................................................35
 TABLE OF AUTHORITIES
Cases
Bickel v. City of Boulder, 885 P.2d 215, 229 (Colo. 1994) .............................. 22, 34
Bolt v. Arapahoe County Sch. Dist. No. Six, 898 P.2d 525, 537 (Colo. 1995) 29, 31,
34
Bruce v. Pikes Peak Library Dist., 155 P.3d 630 (Colo. App. 2007) ............... 25, 34
Colorado Dep’t of Revenue v. Woodmen of the World, 919 P.2d 806, 817 (Colo.
1996) .....................................................................................................................30
Common Sense Alliance v. Davidson, 995 P.2d 748, 754 (Colo. 2000)..................26
Havens v. Board of County Comm’rs, 924 P.2d 517, 522 (Colo. 1996) .................29
Huber v. Colo. Mining Ass’n, 264 P.3d 884 (Colo. 2011) ............................... 27, 28
In re Interrogatories Relating to the Great Outdoors Colo. Trust Fund, 913 P.2d
533, 538 (Colo. 1996) ...........................................................................................22
In re Interrogatory Propounded by Gov. Romer, 814 P.2d 875, 880 (Colo. 1991) ..6
Lobato v. State, 304 P.3d 1132, 1140 (Colo. 2013) (“Lobato II”) .................. passim
Lobato, 218 P.3d 358, 363 (Colo. 2009) (“Lobato I”) ..................................... 18, 20
Lujan v. Colo. State Bd. of Educ., 649 P.2d 1005, 1011-12 (Colo. 1982) ... 6, 20, 21
Mesa County Bd. of Comm’rs v. State, 203 P.3d 519 (Colo. 2009) ................ passim
Siewiyumptewa v. State, 2015 CO 58, ¶2, 357 P.3d 185 .................................. 11, 26
Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo. 1996) ....................................22
Statutes
C.R.S. § 22-54-101 ....................................................................................................3
C.R.S. § 22-54-106(2)(a)(III) (2008) ................................................................ 12, 13
C.R.S. § 22-54-106(2)(c) ...........................................................................................3
C.R.S. § 22-54-106(2.1) .......................................................................................7, 15
Other Authorities
C.R.S. § 22-54-106(2) ................................................................................................8
House Bill 21-1164 .......................................................................................... passim
House Bill 20-1418 ................................................................................. 1, 13, 15, 19
https://cosfp.org/wp-content/uploads/2020-21-Updated-Budget-Stabilization-
Factor-Tables.pdf ....................................................................................................5
Legislative Council Staff Memorandum to Members of the General Assembly at 4
(Oct. 7, 2020) https://leg.colorado.gov/sites/default/files/images/lcs/final_fy20-
21_financing_of_public_schools.pdf......................................................................4
Public School Finance Act of 1994 ................................................................. passim
S. J. Res. 21-006, 2021 Reg. Sess. (Colo. 2021) ........................................ 10, 11, 15
Senate Bill 07-199......................................................................................... 1, 12, 13
Constitutional Provisions
Colo. Const. Art. IX, § 2 ............................................................................... 3, 16, 19
Colo. Const. Art. X, § 20 ...........................................................................................8
Colo. Const. Art. X, § 20(3)(c) ................................................................................34
Colo. Const. Art. X, § 20(2)(b) ..................................................................................8
Colo. Const. Art. X, § 20(2)(g) .................................................................................8
Colo. Const., art. X, § 20(7)(c) ..................................................................................1
 INTRODUCTION

House Bill 21-1164 (“HB21-1164”) corrects a mistake by the Colorado

Department of Education (“CDE”) in implementing the "Public School Finance Act

of 1994" (“PSFA”). For years, the CDE instructed school districts to lower their

local property tax mill levies to comply with the property tax revenue limit (inflation

plus growth) in the Taxpayer’s Bill of Rights (“TABOR”), Colo. Const., art. X, §

20(7)(c). The CDE’s instructions were incorrect which is clear from this Court’s

decision in Mesa County Bd. of Comm’rs v. State, 203 P.3d 519 (Colo. 2009) (“Mesa

County”). CDE failed to give effect to the voter approval obtained by nearly every

school district in the state to waive TABOR’s revenue limits. In short, CDE advised

these school districts that they could not honor their voters’ TABOR-authorized

decisions. In fact, those districts did not need to keep lowering their mill levies in

order to generate less education funding through local property taxes.

The General Assembly first addressed CDE’s mistake in 2007 by enacting

Senate Bill 07-199 (SB07-199) to give effect to the voters’ waivers and stop further

improper mill levy reductions. In 2020, the General Assembly corrected the

improper mill levy reductions that had occurred by enacting House Bill 20-1418

(HB20-1418), directing school districts to reset their mill levies to the rates that

would have been in effect but for CDE’s improper TABOR guidance. The General

1
Assembly included a temporary property tax credit to avoid immediate imposition

of these mill levy increases.

HB21-1164, the subject of this Interrogatory, completes the mill levy

corrections by gradually eliminating the temporary property tax credit. The General

Assembly petitioned the Court to review the constitutionality of this resolution of

the accumulated impacts of CDE's error.

ISSUE PRESENTED FOR REVIEW

The Court has accepted the following Interrogatory for review:

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 reductions, now require such school
districts to:

(a) gradually eliminate the temporary property tax credits as provided

in HB21-1164; and

(b) do so without again obtaining voter approval?

Order of Court, Mar. 25, 2021, Case No. 2021SA97.

2
NATURE OF THE CASE, FACTS AND PROCEDURAL HISTORY, AND
ORDERS FOR REVIEW

I. Nature of the Case.

This case concerns the General Assembly’s responsibility to “provide for the

establishment and maintenance of a thorough and uniform system of free public

schools throughout the state[.]” Colo. Const. Art. IX, § 2. The General Assembly

has met that obligation through the "Public School Finance Act of 1994", see C.R.S.

§ 22-54-101 et seq., and its dual-funding system, in which school district property

taxes pay for a portion of school funding and the state pays the remaining portion

with state revenue. See Mesa County, supra, 203 P.3d at 523.

The circumstances giving rise to this case concern CDE’s misinterpretation of

an amendment to the PSFA. After voters adopted TABOR, the General Assembly

required school district mill levies to comply with TABOR’s property tax revenue

limit (growth plus inflation). See C.R.S. § 22-54-106(2)(c) (1994). CDE in turn

directed school districts to apply the “growth-plus-inflation” limit under subsection

7(c) of TABOR. Of course, this limit operates subject to TABOR’s most salient

feature – the right of district voters to decide that their districts will not be bound by

TABOR’s restrictions or otherwise applicable limits.

CDE made a critical error when it instructed school districts to routinely lower

their mill levies: it failed to recognize that, between 1995 and 2006, voters in nearly
3
every school district in the state authorized broad waivers of TABOR’s revenue

limits. See Mesa County, supra, 203 P.3d at 524. School districts that were not

required to reduce their mill levies because of TABOR nonetheless did reduce them

based on CDE’s erroneous direction. These reductions created a substantial

imbalance in the state’s school funding system. As school districts reduced their mill

levy rates and, as a result, the amount of local funding for schools, the state had to

appropriate more and more state money for schools to make up for the loss in local

property tax revenue.

This trend whereby the state makes up for local school districts’ funding

shortfalls has resulted in its own, significant budgetary impact. The state now uses a

“budget stabilization factor,” which operates to “reduce[] the amount of state aid

allocated to school districts based on the available state revenue and other budget

priorities set by the General Assembly.” Legislative Council Staff Memorandum to

Members of the General Assembly at 4 (Oct. 7, 2020).1 Based on updated estimates,

state aid has been reduced over $1 billion during state fiscal year 2021 alone2 and

1
https://leg.colorado.gov/sites/default/files/images/lcs/final_fy20-
21_financing_of_public_schools.pdf at 4 (last viewed April 8, 2021).
2
The impact of the budget stabilization factor is estimated to be $1.052 billion for
the current fiscal year. See Legislative Council Staff, Revised Fiscal Note for SB21-
053 at 4 https://leg.colorado.gov/sites/default/files/images/lcs/final_fy20-
21_financing_of_public_schools.pdf (last viewed on April 8, 2021).
4
by over $9 billion from state fiscal years 2008-09 through 2019-2020.3 Thus, CDE’s

incorrect advice undermined the state’s ability to fully fund the PSFA.

The General Assembly now seeks to correct the CDE’s multi-year, erroneous

TABOR guidance and the resulting unwarranted underfunding of many school

districts due to the reduction in local property tax revenues. The General Assembly

proposes to do this by gradually eliminating the temporary property tax credit that

accompanied its 2020 legislation, directing school districts to reset their mill levies

to the levels that would have been in effect but for the CDE’s erroneous direction.

See HB20-1814, 2020 Reg. Sess. (Colo. 2020). HB21-1164 directs the CDE to adopt

a phased correction schedule, one that limits mill levy increases to no more than one

mill per year so that each school district returns to its lawful mill levy, at the latest,

in 2040.

The General Assembly recognized that the constitutionality of HB21-1164

could be challenged. First, challengers may assert that the General Assembly lacks

the constitutional authority to eliminate the temporary property tax credit. Second,

the General Assembly anticipates that the bill could face a TABOR challenge on the

ground that eliminating the temporary tax credit, and thereby implementing the

3
Reductions in school funding from 2009 to 2020 totaled $9,181,726,602.
https://cosfp.org/wp-content/uploads/2020-21-Updated-Budget-Stabilization-
Factor-Tables.pdf at 8 (last viewed on April 8, 2021).
5
correction in the level of school district mill levies, requires advance voter approval.

Any uncertainty as to the bill's constitutionality and the possible legal challenges to

it would severely strain school districts and school budgeting until the Court resolves

the constitutional questions. Thus, the General Assembly petitioned the Court to

provide an opinion on the constitutionality of HB21-1164 before it is enacted.

The Court granted the General Assembly’s request on March 25, 2021. See

Order of Court, Mar. 25, 2021, Case No. 2021SA97.

II. Facts and Procedural History

A. Overview of Colorado’s School Funding System 4

Since 1935, Colorado has funded its school system through a mixture of local

property taxes and state funding. Mesa County, supra, 203 P.3d at 523. The General

Assembly established the modern school funding system in 1952 through the School

Finance Act, which attempted to create more equity in education spending across

the state. The Act achieved this purpose through a dual-funding system that

combines state and local funding for public school education. See id. at 523-24;

Lujan v. Colo. State Bd. of Educ., 649 P.2d 1005, 1011-12 (Colo. 1982).

4
The Court may take judicial notice of facts that are contained in opinions of the
Court or are otherwise “matters of public record and common knowledge.” In re
Interrogatory Propounded by Gov. Romer, 814 P.2d 875, 880 (Colo. 1991).
6
 In 1994, the General Assembly passed the Public School Finance Act of 1994,

which, as amended, provides the formula to determine state and local funding for

the state’s school districts. See Lobato v. State, 304 P.3d 1132, 1140 (Colo. 2013)

(“Lobato II”). “Total Program” is the amount of money a school district receives for

operating expenses. The PSFA funds the Total Program first through local funding,

and then, if a school district’s “local share” generates insufficient funds to meet the

Total Program, through state funding. Id. Most school districts require some state

funding to reach the Total Program amount.

The local portion of school funding includes revenue from assessed valuation

of the taxable property within a school district’s boundaries and apportioned specific

ownership (vehicle registration) taxes. Id. The PSFA provides parameters within

which school districts must set their “local share” mill levies, including a statewide

cap of 27 mills. See C.R.S. §22-54-106(2.1). The “state share” of the Total Program

“is derived by subtracting the district’s ‘local share’ from the total program,” and the

state funds its share through state revenue sources. Lobato II, 304 P.3d at 1140.

B. CDE Misapplied the PSFA and TABOR, causing a dramatic change

in the balance of state and local funding for schools.

In 1992, Colorado voters adopted TABOR, which amended the Colorado

Constitution to limit the ability of governmental units to impose new taxes or

increase their tax revenue without first obtaining voter approval. See Colo. Const.
7
Art. X, § 20. TABOR’s tax and revenue limitations apply to school districts. See

Mesa County, supra, 203 P.3d at 527-28; see also Colo. Const. Art. X, §§ 20(2)(b)

(defining “district” as “the state or any local government”); 20(2)(g) (defining “local

growth” for a school district as “the percentage change in its student enrollment”).

The General Assembly addressed TABOR’s property tax revenue limit on

school districts in the PSFA through its limit on school districts’ “local share” mill

levies. The Act provided that, “[f]or the 1994 property tax year and property tax

years thereafter,” school districts “shall” impose the lesser of:

(I) The number of mills levied by the district for the immediately
preceding property tax year;

(II) The number of mills that will generate property tax revenue in an
amount equal to the district’s total program for the applicable budget
year minus the district's minimum state aid and minus the amount of
specific ownership tax revenue paid to the district; [or]

(III) 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 of the state constitution.
C.R.S. § 22-54-106(2) (1994) (emphasis added). However, the above-referenced

TABOR limit necessarily incorporates and thus operates in conjunction with

TABOR’s right for school district voters to waive the limit and allow a school district

to spend all of the revenue it collects.

8
 “Between 1995 and 2006, 175 of the 178 school districts in Colorado

conducted successful waiver elections. All but one of these measures contained

broadly worded ballot language.” Mesa County, supra, 203 P.3d at 524. The

language in the waivers approved by voters differed, but “these measures authorized

the school district to retain and expend ‘all revenue’ or ‘full revenue’ from ‘any

source,’ notwithstanding the limitations of article X, section 20.” Id. at 524-25. The

waivers were “effective immediately,” and they authorized school districts to retain

all property tax revenue that exceeds TABOR’s revenue limits. Id. at 535.

CDE plays a key role in implementing the PSFA’s funding system. In the

years after the General Assembly passed the PSFA, incorporating the TABOR

property tax revenue limitation by reference, the CDE advised school districts on the

effects of the property tax revenue limitation on school district funding. CDE made

a serious mistake, however, in the guidance it issued to school districts by failing to

account for the right of voters to waive TABOR’s revenue limit. Instead, CDE

erroneously read the revenue limitation expressed in TABOR and incorporated by

reference into the PSFA as being non-waivable and as permanently applying

TABOR to cap school districts’ property tax revenue. “Rather than recognizing that

all limits had been waived immediately after each successful [revenue waiver]

election, the [CDE] continued to advise school districts to certify mill levies in

9
accordance with the property tax revenue limit of subsection 7(c) [of TABOR], and

to reduce their mill levies when property tax revenues rose faster than the revenue

limits permitted.” Mesa County, supra, 203 P.3d at 535.

The effect of reducing the districts’ mill levies was to reduce the amount of

revenue school districts collected from property taxes, thereby reducing the “local

share” for Total Program. The decrease in funding for the “local share” forced the

state to increase its level of funding to meet the Total Program funding level. Thus,

CDE’s guidance dramatically affected the state-local funding split. “Over time, the

great majority of school districts reduced their mill levies in order to remain within

the growth-plus-inflation limit of subsection (7)(c) [of TABOR], and to receive the

maximum funding possible from the state under the School Finance Act.” Mesa

County, supra, 203 P.3d at 525.

CDE provided this erroneous instruction to “over 100 school districts.” S. J.

Res. 21-006, 2021 Reg. Sess. (Colo. 2021) at 3. From the 1993-1994 fiscal year to

2006-2007, the average school district mill levy dropped from 38 mills to 21. The

statewide average local share of funding for schools dropped from 47% in 1994 to

36% in 2007, and the statewide average for the state’s share of funding increased

from 53% to 64%. Mesa County supra, 203 P.3d at 525. As a result of the CDE’s

10
guidance, school districts lost billions of dollars in funding from property tax

revenue, revenue that the state then had to provide. S. J. Res. 21-006, at 3.

The issue of school funding in Colorado is not a zero-sum game. Due to the

budgetary pressures on the state, when school districts receive a high percentage of

their funding from the "state share", their Total Program is usually reduced. As

addressed above, because of the growth in the percentage of funding paid by the

"state share" and the increasing demands on the state budget, the state established

the budget stabilization factor “to implement a specific percentage reduction in

funding” for schools. Legislative Council Staff Memorandum, supra, at 5; see

Siewiyumptewa v. State, 2015 CO 58, ¶2, 357 P.3d 185 (formerly referred to asId.

“the negative factor,” it “reduc[es] each district’s school funding by a fixed

percentage”).

The budget stabilization factor is applied to reduce the portion of each school

district's Total Program that is paid by the state. As an example, the Greeley school

district’s budget stabilization factor of 14.04% for this fiscal year means it will lose

more than $29 million in Total Program this year. Legislative Council Staff

Memorandum, supra, at 5. Because CDE indicated to many school districts that their

mill levies must be reduced after waiver elections and those school districts followed

that direction, school districts today have less money to spend on educating Colorado

11
school children. This result is the exact opposite of what voters expected when they

approved their TABOR waivers and authorized their school districts to retain all

revenue generated by their then-higher mill levies.

C. The General Assembly corrected CDE’s error by applying voters’

TABOR waivers to allow school districts to keep “all” available school
funding.

In 2007, the General Assembly took the first step toward fixing the funding

system by enacting SB07-199, which explicitly recognized the right of voters to

waive TABOR’s revenue limits for school districts. SB 07-199 explicitly stated that,

in determining school district mill levies, TABOR’s revenue limits applied only if a

school district's voters had not approved a revenue waiver:

[SB07-199] altered . . . the [PSFA] section incorporating article X,

section 20 by reference, to give effect to the local school district waiver
elections. Prior to SB 07-199, section 22-54-106(2)(a)(III) read:

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 of the state constitution . . . .
After SB 07-199 was enacted, the statute read:

For a district that has not obtained voter approval to retain and
spend revenues in excess of the property tax revenue limitation
imposed on the district by section 20 of article X of the state
constitution, 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 of the state constitution.

12
Mesa County, supra, 203 P.3d at 525-26 (quoting C.R.S. § 22-54-106(2)(a)(III)

(2008) (emphasis in original)). SB07-199 also imposed a statewide cap of 27 mills

on school district “local share” mill levies. Id. at 526.

A number of taxpayers challenged SB07-199 under TABOR, arguing that the

legislation was unconstitutional because it impermissibly allowed school districts to

retain increased revenue from local property taxes without voter approval. The

taxpayers prevailed before the district court, and the State appealed to this Court. Id.

at 526. This Court reversed, holding that additional voter approval beyond the prior

school district revenue waiver elections was unnecessary.

SB07-199 “led to the collection at the local school district level of an

additional $117,838,000 for fiscal year 2007-2008 by allowing school districts to

retain revenue attributable to increased property values.” Id. at 526. But SB07-199

was only part of the resolution of CDE’s error. Specifically, the imbalance in the

state and local funding for schools continued.

The General Assembly took the first step toward rebalancing state and local

funding for schools in 2020 by passing HB20-1418. HB20-1418 did two things:

First, it restored mill levies, improperly lowered due to CDE’s erroneous guidance,

in those school districts that had approved TABOR waiver elections:

(2.1) (a) The general assembly finds that, for property tax years 1994
through 2006, subsection (2)(a)(III) of this section, as it existed before
13
May 9, 2007, was wrongly interpreted and applied to reduce several
districts’ property tax mill levies to the number of mills that a district
could levy under the property tax revenue limitation imposed by section
20 of article X of the state constitution, even though the district had
obtained voter approval to retain and spend revenue in excess of that
property tax revenue limitation. The General Assembly finds,
therefore, that the reductions in district mill levies for property tax
years 1994 through 2006 were not authorized by statute and are void
for purposes of determining a district’s correct mill levy pursuant to
this subsection (2.1) for the 2020 property tax year and property tax
years thereafter, and the determination and levy of the correct number
of mills that a district is required to levy pursuant to this subsection
(2.1) does not require action by the district other than to certify the mill
levy.
(b) For the 2020 property tax year, except as otherwise provided in
subsection (2.1)(e) of this section for reorganized districts:
(I) A district that has obtained voter approval to retain and spend
revenue in excess of the property tax revenue limitation imposed on the
district by section 20 of article X of the state constitution shall levy the
lesser of:
(A) Twenty-seven mills;

(B) The number of mills that the district would have been required to
levy under subsection (2)(a) of this section for the 2020 property tax
year if not for the unauthorized reductions in the district’s mill levy
in property tax years following the property tax year in which the
district obtained voter approval to retain and spend revenue in excess
of the property tax revenue limitation imposed on the district by
section 20 of article X of the state constitution, which reductions
resulted from the unauthorized application of subsection (2)(a)(III)
of this section as it existed before May 9, 2007; or
(C) The number of mills that will generate property tax revenue in an
amount equal to the district's total program for the applicable budget
year minus the amount of specific ownership tax revenue paid to the
district. Regardless of the applicability of section 22-54-104 (5)(g), for
14
 the purposes of this subsection (2.1)(b)(I)(C), a district's total program
is the amount calculated pursuant to section 22-54-104 (2).

C.R.S. § 22-54-106(2.1) (emphasis added).

Second, recognizing the impact that restoring mill levies could have on

property taxpayers, the bill created a temporary property tax credit to offset the

increase in property taxes that would have otherwise resulted from restoring the mill

levies:

(d) In a property tax year in which a district, pursuant to this subsection

(2.1), is required to levy a greater number of mills than it levied in the
2019 property tax year, the district board of education by resolution
shall grant a temporary property tax credit equal to the number of mills
levied in the applicable property tax year that exceeds the number of
mills levied in the 2019 property tax year.
C.R.S. § 22-54-106(2.1)(d). HB20-1418 thus reestablished the correct mill levies for

school districts but did not provide the means by which school districts would in fact

return to the proper level of local funding that would result from applying the correct

mill levies.

HB21-1164 effectuates the mill levy correction begun by HB20-1418 by

phasing out the temporary property tax credit from the previous year. HB21-1164

passed the House of Representatives and passed the Senate on second reading. S. J.

Res. 21-006 at 4. Aware of the possible constitutional questions the bill raises, and

to avoid the uncertainty and disruption that school districts and the state would face

15
if the bill were subjected to constitutional challenges after enactment, see id. at 5,

the General Assembly petitioned this Court for an interrogatory proceeding to

address the constitutionality of HB21-1164.

The Court granted the General Assembly’s petition on March 25, 2021. See

Order of Court, Mar. 25, 2021, Case No. 2021SA97.

III. Orders for Review

This is a request for an opinion under Article VI, Section 3 of the Colorado

Constitution. As a matter within the Court’s original jurisdiction, there are no lower

court orders or opinions for review.

SUMMARY OF THE ARGUMENT

The Interrogatory presents two questions: whether the General Assembly has

the authority to pass HB21-1164 and its phaseout of the temporary tax credit and, if

so, whether TABOR requires voter approval to return to the mill levies that were in

effect when the voters waived the TABOR revenue limitation for their school

districts.

The Colorado Constitution commits to the General Assembly the

responsibility and authority to determine the funding system for Colorado’s schools.

Colo. Const. Art. IX, §. 2. The property tax credit phaseout under consideration here

is a necessary step to ensure that the funding system functions as intended because
16
it addresses errors made at the state level that negatively impacted school district

decision-making about the level of local education funding under the PSFA,

significantly altered the balance of the local share and state share in the dual-funded

financing system in Colorado, and reduced the total amount of state and local

funding for many school districts. This Court has upheld that system, and as the

phaseout of the temporary property tax credits is “rationally related” to the

Constitution’s education mandate and does not violate the Constitution’s local

control requirement, it is constitutional.

The legislature is properly exercising its constitutional authority in addressing

the school financing system, and no further voter approval is required to give effect

to the mill levy corrections mandated by HB21-1164. In the affected school districts,

voters waived the TABOR property tax revenue limit based on a key factor – the

then-existing mill levies. No school district conditioned its waiver elections on a

reduction in mill levies, as found by this Court in Mesa County.

In the same vein, this Court has under other circumstances allowed the State

to correct the application of TABOR by increasing tax rates without requiring voter

approval in advance. The purpose of correcting inaccurate advice about TABOR’s

requirements is not the type of discretionary, tax-raising act that TABOR was

adopted to control. And because TABOR sets no time limit on the General

17
Assembly’s authority to address such errors, any passage of time between voter

approvals in prior years and HB21-1164 does not alter the legislature’s ability to act.

This Court has also determined that, because the school district is the taxing

entity at issue in this instance, no statewide voter approval is required in order for

HB21-1164 to become effective.

LEGAL ARGUMENT

I. HB21-1164 is a constitutional exercise of the General Assembly’s

responsibility to provide for a “thorough and uniform” system of
public education.

A. Standard of Review; Preservation of Issues Presented.

An act by the General Assembly to fund public education is constitutional so

long as it is “rationally related to the constitutional mandate that the General

Assembly provide a ‘thorough and uniform’ system of public education.” Lobato,

218 P.3d 358, 363 (Colo. 2009) (“Lobato I”). This test reflects the proper balance of

authority between the judiciary and legislature, and it “satisfies the judiciary’s

obligation to evaluate the constitutionality of the public school system without

unduly infringing on the legislature's policymaking authority.” Id. at 374. The issue

for the Court is not “whether a better financing system could be devised, but rather

to determine whether the system passes constitutional muster.” Id. (internal

quotation marks and citation omitted).

18
 Preservation is not at issue, as this is an original proceeding under Article VI,

Section 3 of the Colorado Constitution.

B. Eliminating the temporary tax credit to restore the balance of

state-local funding for public schools passes the rational basis
test and is constitutional.

Under the Colorado Constitution and this Court’s precedents, the General

Assembly is acting well within its constitutional authority by directing CDE to

establish a correction schedule by which school districts phase out the temporary

property tax credit created in HB20-1418. The General Assembly’s power arises

from the Constitution’s express grant of authority to the General Assembly to

establish public school financing and the nature of the state’s dual-funding system

for financing public schools.

The Constitution mandates that Colorado school-aged children receive free

public education, and it charges the General Assembly with the responsibility to

provide it. The Constitution states that “[t]he general assembly shall . . . provide for

the establishment and maintenance of a thorough and uniform system of free public

schools throughout the state[.]” Colo. Const. Art IX, § 2. The Court has considered

the constitutionality of Colorado’s dual-funding system adopted by the General

Assembly previously, and has held that the system is constitutional. See, e.g., Lobato

II, 304 P.3d at 1144 (holding that “the current public school financing system

19
complies with the Education and Local Control Clauses of the Colorado

Constitution”); Lujan, 649 P.2d at 1025 (holding that the dual-funding financing

system is “constitutionally permissible”). So long as the General Assembly’s

funding choice is “rationally related to the constitutional mandate that the General

Assembly provide a ‘thorough and uniform system of public education’,” it is

constitutional. Lobato II, 304 P.3d at 1139 (quoting Lobato I, 218 P.3d at 363).

HB21-1164 plainly satisfies the “rationally related” test. The bill does not

alter the architecture of the dual-funding system that this Court has previously held

to be constitutional. See, e.g., Id. at 1140-41. The same basic formula of school

districts paying a portion of Total Program with the state backfilling any remaining

portion remains intact under the legislation. HB21-1164 simply modifies the balance

of funding between school districts and the state to correct an imbalance in the

funding caused by the CDE’s erroneous direction about the requirements of PSFA

in light of TABOR.5 As the Court has explained, determining the balance of funding

5
Although HB21-1164’s mandate may lead to different funding outcomes across
school districts—school districts have different mill levies and may require different
levels of correction—this does not present a constitutional problem. The bill requires
the Department to adopt a correction schedule that “must apply in the same manner
to each district.” HB21-1164 at 4. School funding systems need not guarantee the
same financial outcome for each school district to be constitutional. It is sufficient,
from a constitutional perspective, that the legislation “applies uniformly to all of
Colorado's school districts and . . . is consistent across the state.” Lobato II, 304 P.3d
at 1141.
20
“is not only the proper function of the General Assembly, but this function is

expressly mandated by the Colorado Constitution.” Lujan, 649 P.2d at 1025.

The Court has held that these type of funding decisions are within the General

Assembly’s authority on a number of occasions. In Lujan, supra,, for instance,

plaintiffs contended that the dual-funding system established by the General

Assembly in the Public School Finance Act of 1973 was unconstitutional because it

“created varying education opportunities due to revenue differences between the

districts.” 649 P.2d at 1024. The Court rejected the challenge, concluding that

“fashioning of a constitutional system of financing” for schools is a “proper function

of the General Assembly.” Id. at 1025. And in Lobato II, the Court held that the

General Assembly acted within its authority in creating the system, including by

“describing the sources of state and local revenue that make up” school funding. 304

P.3d at 1141. If establishing the overall school funding system is constitutional, then

the General Assembly surely possesses the constitutional authority to correct a

misinterpretation of that system by the implementing agency.

The phase-out of the temporary property tax credit under HB21-1164 is a

component of the “sources of state and local revenue that make up the calculated

amounts” of the “single statutory framework where the state may calculate every

21
district’s total program.” Lobato II, 304 P.3d at 1141. This measure is “rationally

related” to the overall funding system.

The General Assembly thus is authorized to require the reduction of the

temporary property tax credit and the Court should find the phase out of the

temporary tax credits required in HB21-1164 to be constitutional.

II. Reducing the temporary property tax credit as provided in HB21-

1164 does not require local or state voter approval.

A. Standard of Review; Preservation of Issues Presented.

When construing a constitutional amendment, including TABOR, courts seek

to ascertain and give effect to the intent of the electorate adopting the amendment.

Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo. 1996). A court must look to the

measure’s plain language while avoiding an interpretation that produces an unjust,

absurd, or unreasonable result. Bickel v. City of Boulder, 885 P.2d 215, 229 (Colo.

1994) (“Bickel”). TABOR provides that it is to be interpreted to restrain most the

growth of government, but that provision must be balanced against the requirement

that a court should avoid an “unjust, absurd, or unreasonable result” in construing

TABOR. Id. Where possible, courts should adopt a construction of a constitutional

provision in keeping with that given by coordinate branches of government. In re

Interrogatories Relating to the Great Outdoors Colo. Trust Fund, 913 P.2d 533, 538

(Colo. 1996).
22
 Preservation is not at issue, as this is an original proceeding under Article

VI, Section 3 of the Colorado Constitution.

B. School district elections are not required in school districts that

reduced their mill levies due to CDE’s erroneous instructions about
TABOR.

1. School district voters who approved their district’s use of “all” or

“full” revenue did so based on the then-existing mill levy, not the
erroneously reduced mill levies advised by CDE.

In Mesa County, this Court addressed CDE’s incorrect instruction to school

districts that, in order to comply with TABOR, they could not give effect to their

voters’ approval of local ballot measures authorizing the districts to collect and

spend all revenue despite TABOR’s revenue limits. As a result, “the voter-approved

waiver of the revenue limit was not applied, and school districts were required to

reduce their mill levies or face reductions in the state's share of total program

funding.” 203 P.3d at 525.

Even though all of these school districts had complied with TABOR by

holding elections to get voter approval to retain and use all revenue from all available

sources, CDE instructed these districts to disregard their voters and, instead, reduce

district mill levies or absorb cuts in their shares of state public school funding. “Over

time, the great majority of school districts reduced their mill levies in order to remain

within the growth-plus-inflation limit of subsection (7)(c) [of TABOR], and to

23
receive the maximum funding possible from the state under the School Finance Act.”

Id.

Subsequent to these reductions, the General Assembly authorized school

districts that had waived the TABOR revenue limit to give those waivers effect. The

ensuing lawsuit asked whether the correction to CDE’s advice could take effect

without another round of school district elections. That litigation was triggered even

though “no mill levy increased as a result of” the legislation that gave effect to school

district waiver elections. Id. at 526.

In honoring these voter decisions, the Court found there was no cause to treat

property tax revenue as somehow exempt from the waiver elections.

It strains credulity to argue that references to “all revenues” or

“full revenues” did not include property tax revenues when the
ballot measures only applied to school districts and it is common
knowledge that the great majority of local funding for schools comes
from property tax revenues. It seems logical to assume that voters who
waived the limits on all revenues understood it to apply to the
greatest portion of those revenues, property taxes, and not simply
peripheral funding sources.

Id. at 534 (emphasis added). In other words, voters knew they were approving full

use of their property tax mill levies to generate property tax revenue for their local

schools.

Because voters agreed to maximize the revenue generated by all sources

including the property taxes that would be collected based on the then-existing mill
24
levies, HB21-1164’s gradual return to those then-existing mill levies is entirely

consistent with the intent of voters in these school districts. This is not an increase

in the school district mill levy; it is a return to the mill levy rate that was in effect at

the time voters authorized the school district to retain all of the revenue generated

by that mill levy rate.

2. Voters specifically intended to maintain their then-existing mill levies.

School district voters weren’t just aware that property tax revenues were

affected by their waiver votes. They knew that their district’s waiver election was

predicated upon continuation of the mill levy rates that were then in effect.

The mere fact that a school district’s post-waiver election mill levy did not

stay at the pre-waiver election level is not determinative as to TABOR compliance.

In Bruce v. Pikes Peak Library Dist., 155 P.3d 630 (Colo. App. 2007), prior to the

adoption of TABOR, the voters of a district approved a maximum mill levy of two

to four mills. Over the years, that mill levy “increased and decreased several times,”

but it never exceeded four mills. Id. at 632. Because the level never exceeded what

voters had authorized, “the mill levy increases did not violate” TABOR. Id.

In Mesa County, supra, school district voters agreed to maintain their existing

property taxes and had no reason to assume that a waiver of TABOR revenue limits

25
would result in a mill levy decrease. In fact, the point of waiving the TABOR

revenue limits was to ensure that the mill levy would not be required to decrease.

Further, voters are presumed to understand the relevant law in voting on a

ballot measure. As such, district voter approval is neither predicated on nor bound

by an outside agency’s (i.e., CDE’s) misinterpretation of the law. Regardless of

CDE’s error, “voters ‘must be presumed to know the existing law at the time they

amend or clarify that law.’” Siewiyumptewa, supra, 2015 CO 58, ¶19, citing

Common Sense Alliance v. Davidson, 995 P.2d 748, 754 (Colo. 2000). These waiver

elections clarified TABOR’s impact on school districts, and voters are deemed to

know how schools are funded, including by means of property taxes that are

determined in part by the amount of the local mill levy. See Mesa County, supra,

203 P.3d at 534 n.17 (the Legislative Council’s analysis of TABOR when it was

before statewide voters in 1992 clearly addressed school district funding through

local property taxes).

Thus, school district voters not only understood that their local waiver

measure anticipated a continuation of existing mill levy rates, they also knew that

TABOR allowed their district to maintain that rate and collect and use all resulting

property tax revenue. By waiving the TABOR revenue limitation, the voters were

approving the mill levy rate then in effect. The all-encompassing “all” or “full”

26
revenue that could be collected by districts after their waiver elections necessarily

anticipated the then-existing mill levy as a continuing element of what a school

district would generate. Any other result would be unreasonable or absurd.

Ultimately, CDE’s correction schedule will reflect voter expectations before

CDE’s incorrect advice led to erroneous mill levy decreases. CDE can only change

the property tax credit to the extent there is a “restoration of the correct number of

mills” in any school district that incorrectly decreased its mill levy. See Exhibit 1 at

3 (HB21-1164). Thus, neither the General Assembly nor CDE acting pursuant to the

authority granted in HB21-1164 could ever exceed the earlier, approved mill levies

for any affected school district.

3. Correcting CDE’s errors in advising school districts about TABOR does

not require voter approval.

HB21-1164 requires CDE to “adopt a correction schedule” to reduce the

temporary property tax credit that was granted to phase in the impact on property

taxpayers of returning to the school district mill levies in effect at the time of the

waiver elections. See Exhibit 1 at 4. This statutory change is proposed in order to

“correct the unauthorized reductions in mill levies… and thereby give full effect to

the restoration of the correct number of mills.” Id. at 3.

This Court has approved such corrections in the past. In Huber v. Colo. Mining

Ass’n, 264 P.3d 884 (Colo. 2011), the state Department of Revenue had been
27
collecting the statutorily set severance tax for coal since 1988. The tax rate was

originally set at $.36 per ton. Due to the quarterly adjustments required by statute

for changes in the producers price index, that rate grew to $.54 per ton by the time

TABOR was adopted in 1992. After TABOR became effective, the Department

suspended implementation of these quarterly adjustments, believing that TABOR

prevented it from making these changes. The rate was unchanged until 2007 when

the Department, having been made aware of its error by the State Auditor, increased

the applicable tax to $.76 per ton. Id. at 887-88.

Fixing a 15-year, unauthorized, artificially low tax rate was not an event that

required a TABOR election. “[T]he Department failed to enforce its legislative

mandate to apply the formula and collect the tax due. The Department’s correction

of this incorrect practice… does not require the Department to obtain voter

approval each time it adjusts the amount of coal severance tax due applying

(pertinent law) as written.” Id. at 893 (emphasis added). Here, too, the school

districts can resume applying the mill levy rates that voters in essence approved

when they approved retaining all of the revenue generated by those rates and that

were lowered only due to CDE’s incorrect directions about TABOR’s requirements.

TABOR’s “evident purpose… is to limit the discretion of governmental

officials to take certain taxing, revenue and spending actions in the absence of voter

28
approval.” Havens v. Board of County Comm’rs, 924 P.2d 517, 522 (Colo. 1996).

The then-existing mill levies in affected school districts never needed district voter

approval because they were either in effect at the time TABOR passed or were only

reduced under the PSFA. 6 Under HB21-1164, a school district's mill levy will be

restored to its correct level, but it will not exceed the mill levy in effect when voters

approved the waiver of the TABOR revenue limitations. Thus, the General

Assembly’s actions do not alter the local electorate’s acceptance of the school

district mill levy in effect at the time of a successful waiver election.

It was never TABOR’s purpose to require, and the courts will not employ, a

“rigid interpretation of [Amendment 1] which would have the effect of working a

reduction in government services.” Id. at 523, citing Bolt v. Arapahoe County Sch.

Dist. No. Six, 898 P.2d 525, 537 (Colo. 1995) (“Bolt”). By creating artificial

demands on the state budget that led to the state’s “budget stabilization factor,”

6
The mill levy rates that were in effect when school district voters waived the
TABOR revenue limitation had either been in effect since before TABOR passed or
were lower than the rate that was in effect when TABOR passed. The PSFA in 1993
required school districts to levy the number of mills that had been levied in the
preceding year or a lower number of mills, reduced because the amount of property
tax revenue generated would otherwise exceed the school district's Total Program or
the TABOR revenue limitations. The number of mills levied in the preceding year
had been levied since before TABOR was enacted and therefore did not require voter
approval. The PSFA enacted in 1994 continued these mill levy requirements.

29
school districts’ year-after-year reductions in the local share of school funding, based

on CDE’s incorrect advice in the wake of waiver elections, have materially impaired

school districts’ ability to provide educational services to their students. See Mesa

County, supra, 203 P.3d at 525 (CDE’s instructions had a “‘ratcheting down’ effect”

and “caused the local school district share of total program funding… to decrease”

from 47% to 36%). TABOR is not applied to require such a ratcheting down and

thus severely strain the delivery of government services. HB21-1164 is therefore

constitutional without additional local voter action. This result, too, is unreasonable.

This position in TABOR-related cases is consistent with this Court’s general

findings about governmental errors and the need to correct them. Where the

Department of Revenue misconstrued a taxing statute and withdrew a tax exemption

it had granted for decades, this Court upheld the correction of this error even though

the correction “conflict[ed] with earlier agency interpretations. To hold otherwise

would preclude agencies from correcting mistakes and would perpetuate a thwarting

of the legislature’s will.” Colorado Dep’t of Revenue v. Woodmen of the World, 919

P.2d 806, 817 (Colo. 1996) (citations omitted).

Here, the failure to allow for a correction of such mistakes as to the application

of TABOR would thwart the will of school district voters, as expressed in the

30
electoral determinations that are given effect by HB21-1164. No second round of

voter approval is required under these facts.

4. Corrections that require mill levy adjustments are consistent with

TABOR and do not require advance voter approval.

In Bolt, this Court specifically addressed whether voter approval was required

for corrective mill levy increases and decided that no such ratification was necessary.

At issue in that case was the additional mill levy assessed by Arapahoe County

to address abatements and refunds of property taxes. Abatements and refunds are the

remedy for property taxpayers whose property has been improperly valued or taxed.

Once the assessor’s errors are established and aggregated for the entire county, the

county would “adjust the assessed value of the property to correct for the erroneous

valuation” and “then recalculate[] the amount of tax owed by the property owner

using the corrected valuation.” 898 P.2d at 529. This correction applies to “each year

in which the property owner was subject to the erroneous tax.” Id.

In Bolt, the assessor’s errors resulted in valuation changes and a reduction in

collected property taxes of over $1 million. Id. To account for this loss, the county

added an additional 2.013 mills to the property tax calculation for all affected

properties. Id.

While the additional mill levy was argued to have triggered the prior voter

approval requirement in TABOR, this Court held that it had not. “Even though the
31
abatements and refunds mill levy was technically above that for the prior year, it

operates merely to recoup lost revenue that, but for the assessor’s errors, would have

been collected from the property owners.” Id. at 537. Had the school district known

the assessor would err by overassessing property values in the county, the district

simply “would [have] adjust[ed] the mill levy accordingly to compensate for the

shortfall. The abatements and refunds mill levy simply moves the adjustment to the

following year or years, and does not operate as a tax increase.” Id. As a result,

statutory authority for a mill levy to correct those errors “does not conflict with

[TABOR] and is not unconstitutional.” Id.

The Court specifically noted that TABOR requires the ballot title to state the

full fiscal year dollar increase that results from a mill levy rate increase. Thus, voters

specifically approve collection of an amount of revenue and “are not required by

[TABOR] to approve the mill levy rate used by the school district to collect that

dollar amount.” Id. (emphasis in original)

Similarly, school district voters approved the waiver of the TABOR revenue

limitations, thereby approving retention of the revenue received from all sources,

including from the mill levy rate in existence at the time of the election. Had the

school districts realized that the CDE’s advice concerning the required mill levy rate

was incorrect, they would not have lowered their mill levies and would have

32
continued collecting and retaining all of the revenue authorized by their voters.

Correcting those reductions now by restoring the mill levy rates to the legally

allowed levels merely gives full effect to the voters' approval to retain the revenue

generated by that mill levy rate. Giving effect to voters’ clearly expressed intention

at those elections is part of, and essential to, TABOR’s fabric.

5. Any gap in time between district voter approval of use of property tax
revenue at then-existing rates and the passage of HB21-1164 does not harm
district voters or change the impact of their vote.

That the legislative correction contained in HB21-1164 is later in time than

the waiver elections is of no legal consequence, a point made clear in Mesa County.

“There were no time limits included in the waiver elections that would bar the

General Assembly from acting at a later date…. The delay in implementing the

waiver elections may have caused harm to the state, or to the school districts, but it

caused no harm to property taxpayers like those who brought this suit.” Id. at 535

(emphasis added).

This holding from Mesa County, supra, dealing with revenue levels, applies

with equal force to HB21-1164’s correction of mill levies. This Court has recognized

that TABOR elections and mill levy increases can be separated by years, even if that

number is substantial or unknown at the time voter approval is granted.

33
 In Bickel, supra, the Court approved open-ended ballot question wording to

authorize future mill levy increases – “without limitation as to any rate” – so districts

could obtain “present authorization for future tax increases,” and district bonds

would be paid. Notwithstanding that authority, TABOR still limits school districts

in an important way: “any rate change ultimately implemented by a district pursuant

to this ‘without limitation as to rate’ clause must be consistent with the district's

stated estimate of the final fiscal year dollar amount of the tax increase.” 885 P.2d

at 234, citing Colo. Const. art. X, § 20(3)(c). In other words, that open-ended voter

approval is still capped at the limits stated in the voter-approved ballot question.

In Bolt, supra, the Court found that a pre-TABOR vote to allow mill levy

increases was effective after TABOR was adopted. As in Bickel, the approved mill

levy increase was “an open-ended mechanism” to allow the school district to repay

voter-authorized debt. 898 P.2d at 535-36. Given that, reinstating the school district

mill levy in effect at the time of a waiver election is also permitted. See Bruce v.

Pikes Peak Library Dist., supra, 155 P.3d at 632 (periodic mill levy increases, even

after mill levy decreases, did not need approval by voters who had already approved

a district mill levy of up to 4 mills before TABOR was adopted; Bolt, supra, applies

to mill levy changes, not just voter approval of bonded indebtedness); see also Mesa

34
County, supra, 203 P.3d at 534 (voters approved waivers of applicable TABOR

restrictions that applied “currently or could possibly affect them in the future”).

Therefore, HB21-1164 is a sufficiently timely correction to CDE’s misplaced

advice and school districts’ reliance on that direction.

C. No statewide election is required in order to give effect to HB21-1164.

Mesa County, supra, rejected the argument that a state election is required for

state legislation pertaining to school district compliance with TABOR in light of the

school funding mechanism in the PSFA.. That decision is dispositive here.

Although under the School Finance Act the state dictates the overall
scheme of school funding and the county performs the ministerial
function of collecting taxes levied by the school district, the school
district remains the relevant taxing authority. As such, the school
district is the only "district" with the authority to change tax policy
within the meaning of article X, section 20. The state cannot cause a
"tax policy change" at the local district level. Therefore, the language
of subsection (4)(a) does not require an additional vote at the state level.

203 P.3d at 530 (emphasis added). Therefore, a state election is not needed to

approve the reduction in the mill levy tax credit, as mandated in HB21-1164.

CONCLUSION

It would be anomalous indeed if, as the courts have ruled, TABOR allows

unlimited mill levy authorization or increases and decreases in mill levies without

voter approval under certain circumstances but requires voter approval to correct an

35
error even though the same or similar circumstances exist. The act of addressing

such errors is not an instance of government acting, unfettered, to grow and impose

never before anticipated tax burdens on property owners. It is simply a mid-course

correction, one that is entirely consistent with the intent of school district taxpayers

whose mill levies are being returned to the very same levels that they paid in prior

years and at which they approved the retention of all revenue.

It is significant that such voters did not seek to, and certainly did not agree to,

reduce those mill levies in their waiver elections. In fact, they voted to allow all

revenue to be collected and used by their school districts assuming constant mill levy

rates. HB21-1164’s purpose is simply to give full effect to the voter approval that

the electorate in these school districts gave years ago and not thwart the will of those

voters. That voter control is really what TABOR is all about.

The General Assembly therefore respectfully requests that the Court hold that

(1) it has the authority to enact a remedial plan to reduce the temporary property

tax credits set forth in HB21-1164 and (2) HB21-1164 does not require advance

voter approval at either the statewide or local levels.

36
Respectfully submitted,

RECHT KORNFELD, P.C.

s/ Mark G. Grueskin
MARK G. GRUESKIN, #14621
Attorney for the Colorado General Assembly

37
 CERTIFICATE OF SERVICE

I hereby certify that on this 8th day of April, 2021, a true and correct copy of
the foregoing ANSWER BRIEF OF THE COLORADO GENERAL
ASSEMBLY was served electronically via Colorado Courts E-Filing to:
Terry Gill
Russell D. Johnson
1300 Broadway, 8th Floor
Denver, CO 80203
Attorneys for Jared S. Polis, in his official
capacity as the Governor of the State of Colorado

Natalie Hanlon Leh

Eric Olson
Kurtis Morrison
Noah Patterson
1300 Broadway, 10th Floor
Denver, CO 80203
Attorneys for Philip J. Weiser, in his official
capacity as the Attorney General for the State of Colorado

Daniel E. Burrows
Public Trust Institute
98 Wadsworth Blvd. #127-3071
Lakewood, CO 80226
Attorney for Multiple Individual
Members of the Colo. Gen. Assembly

Suzanne Taheri
George H. Brauchler
Maven Law Group
1600 Broadway, Suite 1600
Denver, CO 80202
Attorneys for Colorado Rising State Action

s/ Erin Holweger
38