SUPREME COURT

DATE FILED: April 8, 2021 4:32 PM

FILING ID: 9409099D32E7F
STATE OF COLORADO CASE NUMBER: 2021SA97

2 East 14th Avenue

Denver, CO 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.
PHILIP J. WEISER, Attorney General
Terry Gill, First Asst. Att’y Gen.*
Russell D. Johnson, Sr. Asst. Att’y Gen.*
Ralph L. Carr Colorado Judicial Center COURT USE ONLY
1300 Broadway, 8th Floor Case No. 2021SA97
Denver, CO 80203
Telephone: 720-508-6351
E-Mail: terry.gill@coag.gov;
russell.johnson@coag.gov;
Registration Nos.: 22398 (Gill);
48482 (Johnson)
*Counsel of Record
GOVERNOR’S INTERROGATORY ANSWER BRIEF
 CERTIFICATE OF COMPLIANCE
I hereby certify that this Governor’s Interrogatory Answer Brief

complies with all requirements of C.A.R. 28 or C.A.R. 28.1, and

C.A.R. 32, as reasonably applicable to a brief submitted in a matter

arising under article VI, section 3, including all formatting

requirements set forth in these rules. Specifically, the undersigned

certifies that:

The brief complies with the word limit set forth in the

Court’s March 25, 2021 Order. It contains 6,674 words (of the 9,500

permitted).

I acknowledge that my brief may be stricken if it fails to

comply with any of the requirements in C.A.R. 28 or C.A.R. 28.1,

and C.A.R. 32.

s/Russell D. Johnson
Signature of attorney or party
 TABLE OF CONTENTS

PAGE

INTERROGATORY PRESENTED................................................................ 1

STATEMENT OF THE CASE AND FACTS ................................................. 1

I. The General Assembly incorporated each school district’s

TABOR property tax revenue limit—and their voters’ ability to
waive that limit—into the public education funding regime
following TABOR’s passage ................................................................... 4

II. Violations of the 1994 Act began after CDE incorrectly directed
school districts to continue applying TABOR’s property tax
revenue limit even if their voters had waived the limit ....................... 8

III. After years of violations of the 1994 Act, the General Assembly
stepped in to prevent further unauthorized decreases in school
district mill levies ................................................................................ 10

IV. The General Assembly passed House Bills 20-1418 and 21-1164
to finally correct the violations of the 1994 Act .................................. 12

A. House Bill 20-1418 required school districts to reset their mill

levies to where they would have been had the 1994 Act been
properly applied but mandated temporary tax credits to fully
offset any immediate impact on taxpayers...................................... 13

B. House Bill 21-1164 requires school districts to roll back the

temporary tax credits gradually, correcting all unauthorized
reductions over a period of almost 20 years .................................... 16

APPLICABLE LEGAL STANDARDS ......................................................... 19

SUMMARY OF THE ARGUMENT ............................................................. 21

ARGUMENT ................................................................................................ 23
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 TABLE OF CONTENTS

PAGE

I. Reducing the temporary tax credits does not require statewide

voter approval because it does not implicate any of the State’s
TABOR obligations .............................................................................. 25

II. TABOR does not require the school districts to seek advance
voter approval to reduce the temporary tax credits and
effectively increase their mill levies .................................................... 26

A. Mill levies set before SB07-199 that ignored valid revenue

limit waiver elections violated the 1994 Act ................................... 27

B. TABOR’s election provisions do not apply to correcting past

statutory violations because TABOR only requires voter
approval for discretionary legislative acts and complying with
the 1994 Act was not discretionary ................................................. 31

C. TABOR’s election provisions demonstrate that the voters who

adopted TABOR did not intend to require advance voter
approval to correct statutory violations .......................................... 34

D. It would be unreasonable to interpret TABOR to require new

voter approval to give effect to the impact of the successful
elections the school districts already conducted ............................. 37

CONCLUSION............................................................................................. 38

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 TABLE OF AUTHORITIES

PAGE

CASES

Barber v. Ritter, 196 P.3d 238 (Colo. 2008) ........................................... 20, 34

Bickel v. City of Boulder, 885 P.2d 215 (Colo. 1994) ................................... 19

Bolt v. Arapahoe Cnty. Sch. Dist. No. Six, 898 P.2d 525 (Colo. 1995) .. 17, 19

City of Ouray v. Olin, 761 P.2d 784 (Colo. 1988) ........................................ 20

City of Westminster v. Dogan Const. Co., 930 P.2d 585 (Colo. 1997) .... 20, 21

Frazier v. People, 90 P.3d 807 (Colo. 2004) ................................................. 20

Gen. Motors. Corp. v. City & County of Denver, 990 P.2d 59 (Colo.
1999) ........................................................................................................ 20

Havens v. Bd. of Cnty. Comm’rs, 924 P.2d 517 (Colo. 1996) ....................... 29

Huber v. Colo. Mining Ass’n, 264 P.3d 884 (Colo. 2011) ........... 31, 32, 33, 35

LaFond v. Sweeney, 343 P.3d 939 (Colo. 2015) ........................................... 21

Lobato v. State, 218 P.3d 358 (Colo. 2009) .................................................... 4

Martin v. People, 27 P.3d 846 (Colo. 2001) .................................................. 20

Mesa Cnty. Bd. of Cnty. Comm'rs v. State, 203 P.3d 519 (Colo. 2009)

......................................................................................................... passim

People v. Hyde, 393 P.3d 962 (Colo. 2017) ................................................... 28

Resolution Tr. Corp. v. Heiserman, 898 P.2d 1049 (Colo. 1995) ................. 20
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 TABLE OF AUTHORITIES

PAGE

Romer v. Bd. of Cnty. Commr’s, 956 P.2d 566 (Colo. 1998) ........................ 18

Ryan Ranch Cmty. Ass’n. v. Kelley, 380 P.3d 137 (Colo. 2016)................... 28

Zaner v. City of Brighton, 917 P.2d 280 (Colo. 1996) .................................. 19

CONSTITUTIONS

COLO. CONST. art. IX, § 2 ................................................................... 4, 18, 33

COLO. CONST. art. X § 2 ................................................................................ 36

COLO. CONST. art. X §16 ............................................................................... 36

COLO. CONST. art. X, § 20(1)......................................................................... 23

COLO. CONST. art. X, § 20(2)(b) .................................................................... 23

COLO. CONST. art. X, § 20(3)(a) .................................................................... 34

COLO. CONST. art. X, § 20(3)(b) .................................................................... 34

COLO. CONST. art. X, § 20(4)......................................................................... 24

COLO. CONST. art. X, § 20(4)(a) .................................................................... 26

COLO. CONST. art. X, § 20(7)(c)............................................................. 5, 6, 29

COLO. CONST. art. X, § 20(9)......................................................................... 28

STATUTES

§ 2-4-203(1), C.R.S. ...................................................................................... 21

§ 22-54-104(1)(a), C.R.S. ................................................................................ 5

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 TABLE OF AUTHORITIES

PAGE

§ 22-54-106(1)(a)(I), C.R.S. ............................................................................ 5

§ 22-54-106(1)(b)(I), C.R.S. ...................................................................... 5, 10

§ 22-54-106(2)(a), C.R.S. ................................................................................ 9

§ 22-54-106(2)(a)(I), C.R.S. ...................................................................... 9, 27

§ 22-54-106(2)(c), C.R.S. (1994) ................................................................... 29

§ 22-54-106(2.1)(c), C.R.S............................................................................. 15

§ 22-54-106(2.1)(d), C.R.S. ........................................................................... 26

§ 22-54-106(6), C.R.S. .................................................................................... 8

Ch. 154, sec. 2, § 22-54-106, 1994 COLO. SESS. LAWS ................................ 6, 7

Ch. 154, sec. 2, § 22-54-108, 1994 COLO. SESS. LAWS .................................... 7

Ch. 196, sec. 4, § 22-53-114, 1993 COLO. SESS. LAWS .................................... 5

Ch. 197, sec 33, § 22-54-106(2.1)(a), 2020 COLO. SESS. LAWS ..................... 14

Ch. 197, sec. 33, § 22-54-106(2.1)(a), 2020 COLO. SESS. LAWS .................... 13

Ch. 197, sec. 33, § 22-54-106(2.1)(b)(I), 2020 COLO. SESS. LAWS................. 14

Ch. 197, sec. 33, § 22-54-106(2.1)(c), 2020 COLO. SESS. LAWS ..................... 14

Ch. 197, sec. 33, § 22-54-106(2.1)(d), 2020 COLO. SESS. LAWS .................... 15

Ch. 197, sec. 33, § 22-54-106(3), 2020 COLO. SESS. LAWS ............................ 15

Ch. 199, sec. 5, § 22-54-106(2)(a), 2007 COLO. SESS. LAWS ......................... 15

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Ch. 199, sec. 5, § 22-54-106(2)(a)(III), 2007 COLO. SESS. LAWS ................... 10

Ch. 199, sec. 5, § 22-54-106(2)(a)(V), 2007 COLO. SESS. LAWS .................... 10

OTHER AUTHORITIES

COLO. DEP’T OF EDUC., FISCAL YEAR 2007-08 MILL LEVY TABLE .................. 11

COLO. DEP’T OF EDUC., FISCAL YEAR 2019-20 MILL LEVY TABLE .................. 11

COLO. DEP’T OF EDUC., FISCAL YEAR 2020-21 MILL LEVY TABLE .................. 16

H.B. 21-1164, 73d Gen. Assem., 1st Reg. Sess. (Colo. 2021) ................ 16, 17

Hearing on H.B. 94-1001 Before the Colo. Sen. on Second Reading,

59th Gen. Assem., 2d Reg. Sess. (Mar. 22, 1994) ........................... 7, 9, 30

LEG. COUNCIL STAFF, HB 21-1164 REVISED FISCAL NOTE, App’x A

(Mar. 16, 2021) ........................................................................................ 17

vi
 Jared S. Polis, in his capacity as the Governor of the State of

Colorado, submits this Answer Brief in response to the interrogatory

from the Colorado General Assembly to the Colorado Supreme Court.

INTERROGATORY PRESENTED

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 for the unauthorized reductions, 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?

STATEMENT OF THE CASE AND FACTS

Colorado has funded its public education system through a

combination of local and State money for almost a century. School

1
districts raise money (the “local share”) through property tax mill levies

required by the State, while the State contributes additional funds (the

“State share”) to each district.

But beginning in 1995—and at the erroneous direction of the

Colorado Department of Education (“CDE”) 1—many school districts

began to set mill levies in violation of the 1994 Public School Finance Act,

§§ 22-54-101 to 22-54-120, C.R.S. (1994) (“1994 Act”). Over time, school

district mill levies decreased, reducing the local share, and the State

share increased—taking a system that was equally funded between the

school district local share and the State share in the mid-1990s to one

1 This brief discusses the historical actions of CDE and local school
districts and how school district mill levies were set between 1995 and
2006. While those mill levies misapplied—and thus, violated—applicable
Colorado law, this brief does not discuss or otherwise address CDE’s
then-decision-making, rationale, or justifications that led to the
misapplication of the law. This proceeding is about whether the General
Assembly’s attempt to correct these statutory violations requires voter
approval.

2
where the State share amounted to nearly two-thirds of the funds by

2007.

In 2007, the General Assembly stepped in and stopped the unlawful

reductions. That action was challenged under the Taxpayer’s Bill of

Rights (“TABOR”) and upheld in Mesa County Board of County

Commissioners v. State, 203 P.3d 519 (Colo. 2009). What the 2007

legislation did not do, however, was correct the prior unauthorized

reductions in school district mill levies that violated the 1994 Act.

The pending legislation at issue, House Bill 21-1164 (“HB21-1164”),

represents the final step on the path to correcting these violations. The

central question here is whether the General Assembly can require school

districts to reset their mill levies to the level at which they would have

otherwise been but for the violations of the 1994 Act without again

obtaining voter approval.

They can. Nothing in TABOR or this Court’s precedent suggests

that voter approval is needed to correct statutory violations. Requiring

voter approval would be absurd, particularly under the circumstances

3
present here where, as discussed below, the initial violation came from

disregarding successful TABOR elections in the first place. HB21-1164,

does not require prior voter approval, and this Court should answer the

interrogatory in the affirmative.

I. The General Assembly incorporated each school

district’s TABOR property tax revenue limit—and their
voters’ ability to waive that limit—into the public
education funding regime following TABOR’s passage.

The General Assembly has a constitutional obligation to provide a

“thorough and uniform system of free public schools.” COLO. CONST.

art. IX, § 2. Colorado’s method for funding its schools must be rationally

related to that mandate. Lobato v. State, 218 P.3d 358, 374 (Colo. 2009).

For almost a century, the State has satisfied this requirement

through a combination of the statutorily required local and State shares.

Mesa County, 203 P.3d at 523 (discussing the history of school finance in

Colorado). To calculate the State and local shares, the State first

determines a district’s “total program,” which represents the amount of

money the State deems necessary to fund a district’s schools consistent

4
with the constitutional requirement for funding uniformity. § 22-54-

104(1)(a), C.R.S.

School districts must then apply a statutory formula to determine

how much of their total program they must raise through their property

tax mill levies—the local share. § 22-54-106(1)(a)(I), C.R.S. The State

share, which the State sends to the districts, is the difference between

each district’s total program and its local share. § 22-54-106(1)(b)(I),

C.R.S.; see also Mesa County, 203 P.3d at 525 (describing the process for

calculating the State and local shares after 1993).

In 1993, following TABOR’s enactment the year before, the General

Assembly modified the then-existing school finance formula to

incorporate some of TABOR’s requirements, including TABOR’s property

tax revenue limit. Compare ch. 196, sec. 4, § 22-53-114, 1993 COLO. SESS.

LAWS 881–82, with COLO. CONST. art. X, § 20(7)(c); see also Mesa County,

203 P.3d at 524 (“After the voters adopted [TABOR], the General

Assembly amended the School Finance Act in 1993 to incorporate by

reference [TABOR’s] property tax revenue limit.”). The TABOR property

5
tax revenue limit restricts the year-over-year increase in property tax

revenue a district can receive to a percentage equal to “inflation in the

prior calendar year plus annual local growth, adjusted for property tax

revenue changes approved by voters after 1991” and certain reductions

not relevant here. COLO. CONST. art. X, § 20(7)(c).

In 1994, the General Assembly overhauled the school finance

system by passing the 1994 Act. But as with the 1993 changes, the 1994

Act again incorporated TABOR’s property tax revenue limit by reference

and that incorporation included “the capacity for adjustments authorized

by waiver election.” Ch. 154, sec. 2, § 22-54-106, 1994 COLO. SESS. LAWS

791; Mesa County, 203 P.3d at 524. The applicable 1994 Act provision

read:

For the 1994 property tax year and property tax

years thereafter, each district shall levy the lesser
of:
(a) The number of mills levied by the district for
the immediately preceding property tax
year;
(b) The number of mills that will generate
property tax revenue in an amount equal to
the district’s total program for the applicable
6
 budget year minus the district’s minimum
state aid and minus the amount of specific
ownership tax revenue paid to the district; or
(c) 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 [(i.e.,
TABOR)]. …

Ch. 154, sec. 2, § 22-54-106, 1994 COLO. SESS. LAWS 791–92.2 This

provision was intended to ensure that school districts funded their total

program to the greatest extent allowed by TABOR. Hearing on H.B. 94-

1001 Before the Colo. Sen. on Second Reading, 59th Gen. Assem., 2d Reg.

Sess. (Mar. 22, 1994) (statement of Sen. Wells, one of the prime sponsors,

agreeing that the purpose of the TABOR-related language in the 1994

Act was to ensure that “counties must levy the highest they can under

2These provisions specify how school districts fund the local share of total
program funding. School districts were also granted separate, limited
authority to raise additional money that is not at issue here. See, e.g.,
ch. 154, sec. 2, § 22-54-108, 1994 COLO. SESS. LAWS 794–96 (authorizing
districts to seek money in excess of their total program funding from their
voters).
7
[TABOR]” and that this was the same as the intent behind the 1993

language) (“Wells Statement”).

II. Violations of the 1994 Act began after CDE incorrectly

directed school districts to continue applying TABOR’s
property tax revenue limit even if their voters had
waived the limit.

Between 1995 and 2006, almost all of Colorado’s 178 school districts

sought and successfully received voter approval to waive TABOR’s

property tax revenue limit. Mesa County, 203 P.3d at 524. As a result,

TABOR’s property tax revenue limit, which the 1994 Act had

incorporated by reference, no longer applied to those districts.

But instead of recognizing the waiver elections, CDE directed

school districts to calculate their mill levies under the 1994 Act as if the

TABOR revenue limit still applied to them and the waiver elections had

never occurred.3 CDE took this approach even though (1) the waiver

elections “were effective immediately”; (2) the school districts could

3The General Assembly charged CDE with ensuring the school districts
complied with the statutory funding formula. See § 22-54-106(6), C.R.S.

8
receive unlimited property tax revenue to fund the local share after their

successful waiver elections; and (3) the General Assembly had intended

for the school districts to fund their total program to the greatest extent

allowed by TABOR. Mesa County, 203 P.3d at 525, 535; Wells Statement.

The result of disregarding the waiver elections was a steady

decrease in school district mill levies as property tax revenue increased

beyond what the property tax revenue limit would otherwise have

allowed. Mesa County, 203 P.3d at 525. Over time, this drove down the

local share while increasing the State share due to the 1994 Act’s

requirement that the State make up the difference between the local

share and total program funding. Id. 4 Thus, a public education system

4 The reason for the shift over time is that every time a school district’s
mill levy decreased, that lower mill levy—assuming the reduction was
proper—set the ceiling for the next year’s mill levy. See § 22-54-
106(2)(a)(I), C.R.S. For example, if a district’s property values increased
to the point where the existing mill levy would generate more revenue
than necessary for the district’s total program, the 1994 Act required the
district to reduce its levy to generate only the total program amount. See
§ 22-54-106(2)(a), C.R.S. But that reduced mill levy would set the ceiling
for the next year even if property values dropped and the district
9
that had been almost equally funded by school districts and the State in

the mid-1990s tilted dramatically, resulting in school districts

contributing just 36% of total program funds by 2007, with the remaining

balance backfilled by the State. Id.

III. After years of violations of the 1994 Act, the General

Assembly stepped in to prevent further unauthorized
decreases in school district mill levies.

In 2007, the steady downward trend in the local share ended when

the General Assembly enacted Senate Bill 07-199 (“SB07-199”). SB07-

199 added language to the 1994 Act that: (1) formally rejected the

approach CDE had taken by stating that the 1994 Act’s reference to the

TABOR property tax revenue limit only applied to those districts that

had not held successful waiver elections; and (2) prohibited school

districts from imposing a mill levy greater than 27 mills. See ch. 199,

sec. 5, § 22-54-106(2)(a)(III) & (V), 2007 COLO. SESS. LAWS 736.

generated much less revenue. In that case, the State share would
increase to make up the lost revenue. § 22-54-106(1)(b)(I), C.R.S.

10
 SB07-199’s immediate effect was to freeze the mill levies in 115

districts and reduce the levies in 30 others to the 27-mill limit. The

remaining districts were unaffected. Mesa County, 203 P.3d at 526. Since

SB07-199, school district mill levies in Colorado have generally

stagnated. Compare COLO. DEP’T OF EDUC., FISCAL YEAR 2007-08 MILL

LEVY TABLE, with COLO. DEP’T OF EDUC., FISCAL YEAR 2019-20 MILL LEVY

TABLE. 5

SB07-199 was challenged as violating TABOR in the Mesa County

litigation. Mesa County, 203 P.3d at 526. Rejecting that challenge, this

Court upheld SB07-199, finding that the original 1994 Act incorporated

TABOR’s property tax revenue limits by reference, including TABOR’s

express allowance for waiver elections. Id. at 524. The Court held that

SB07-199 did nothing more than require CDE and school districts to give

effect to the voters’ pre-existing waivers of the property tax revenue limit,

5 Available at https://www.cde.state.co.us/cdefinance/sfmilllevy
(containing links to both tables) (last visited Apr. 8, 2021).

11
which were effective immediately after the successful waiver elections.

Id. at 535. There was no need for additional voter approval before SB07-

199 could be implemented, and none of TABOR’s provisions were violated

by failing to seek additional advance voter approval. Id. If anything, the

Court stated, CDE’s guidance “may have caused harm to the state, or to

the school districts” while benefiting local property taxpayers at the

expense of State taxpayers. Id.

IV. The General Assembly passed House Bills 20-1418 and

21-1164 to finally correct the violations of the 1994 Act.

Although SB07-199 stopped any further erosion of the mill levies,

it did not address how to correct the fact that, for over a decade, the mill

levies were set in violation of the 1994 Act. It is only recently that the

General Assembly sought to correct these violations through the

combined effect of House Bill 20-1418 and House Bill 21-1164.

12
 A. House Bill 20-1418 required school districts to
reset their mill levies to where they would have
been had the 1994 Act been properly applied but
mandated temporary tax credits to fully offset any
immediate impact on taxpayers.

In 2020, the General Assembly took the first step to correct the

unauthorized mill levy reductions with the passage of House Bill 20-1418

(“HB20-1418”). HB20-1418 specifically recognized that the mill levy

reductions that occurred between 1994 and 2006 as a result of

disregarding school district waiver elections violated the 1994 Act.

Ch. 197, sec. 33, § 22-54-106(2.1)(a), 2020 COLO. SESS. LAWS 950. Because

those reductions violated the 1994 Act, HB20-1418 declared them void

when determining a district’s correct mill levy for future years. Id.

For property tax year 2020, HB20-1418 then enacted a one-time

solution that reset the mill levies in school districts that had waived their

revenue limits by requiring those districts to adopt a mill levy equal to

the lesser of:

• “The number of mills that the district would have been required to
levy under [the prior funding formula] 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
13
 district [waived its property tax revenue limit], which reductions
resulted from the unauthorized application of [the property tax
revenue limit in the 1994 Act] as it existed before May 9, 2007”;

• The number of mills necessary to equal the district’s total program

funding minus certain other tax revenue the district received; or

• 27 mills.6

Ch. 197, sec. 33, § 22-54-106(2.1)(b)(I), 2020 COLO. SESS. LAWS 951.

HB20-1418 did not retroactively change the mill levies for any property

tax years before 2020; it was prospective in application only. The General

Assembly further noted that the only action required of a school district

to implement this provision was to certify the correct mill levy under the

statute. No TABOR vote was needed. Id., § 22-54-106(2.1)(a), 2020 COLO.

SESS. LAWS 950–51.

For property tax year 2021 and beyond, HB20-1418 returns to the

formula that has been in effect since SB07-199’s enactment in 2007.

Compare id., § 22-54-106(2.1)(c), 2020 COLO. SESS. LAWS 951–52 with

6The 27-mill limit in HB20-1418 is a continuation of the limit the

General Assembly enacted in SB07-199.

14
ch. 199, sec. 5, § 22-54-106(2)(a), 2007 COLO. SESS. LAWS 736. Thus, going

forward, all school districts must levy the lesser of

• The number of mills necessary to equal the district’s total program

funding minus certain other tax revenue the district receives;

• For districts that have not waived their property tax revenue limit,
the number of mills that will generate revenue that does not exceed
the limit;

• The number of mills levied in the prior tax year; or

• 27 mills.

§ 22-54-106(2.1)(c), C.R.S.

Despite the one-time correction in property tax year 2020, school

districts did not experience an increase in their effective mill levies

because HB20-1418 also required school districts to enact temporary

property tax credits. Ch. 197, sec. 33, § 22-54-106(2.1)(d), 2020 COLO.

SESS. LAWS 952. The temporary credits fully offset any property tax

increase from the mill levies that HB20-1418 otherwise required. Id.

Instead, HB20-1418 effectively required the State to include the amount

of property tax revenue the districts lost from the temporary credits in

the State’s share of total program funding. See id., § 22-54-106(3), 2020

15
COLO. SESS. LAWS 952. 7 Consequently, local property owners experienced

no change in their property tax liability.

B. House Bill 21-1164 requires school districts to roll

back the temporary tax credits gradually,
correcting all unauthorized reductions over a
period of almost 20 years.

Although the General Assembly stated that the tax credits provided

in HB20-1418 were temporary, it did not provide a specific date by which

they would expire. House Bill 21-1164 (“HB21-1164”)—which is pending

before the General Assembly—begins to phase out the credits. H.B. 21-

1164, 73d Gen. Assem., 1st Reg. Sess. (Colo. 2021) (adding § 22-54-

106(2.1)(d)(II) & (III), C.R.S., to the statute).

Under HB21-1164, CDE must create—and each impacted school

district must follow—a correction plan for each district that gradually

7CDE has calculated the mill levy for each district under HB20-1418 and
each district’s offsetting temporary tax credit. COLO. DEP’T OF EDUC.,
FISCAL YEAR 2020-21 MILL LEVY TABLE, available at
https://www.cde.state.co.us/cdefinance/sfmilllevy (last visited Apr. 8,
2021).

16
rolls back the district’s temporary tax credits so that the correct mill levy

is effectively restored over time. Id. (adding § 22-54-106(2.1)(d)(III),

C.R.S.). The correction plan must reduce the temporary tax credits at a

rate of no more than 1 mill per year until each district eliminates its

credits. Id.8 In some school districts, fully removing the credits will take

only a few years; in others, it will take over a decade. See LEG. COUNCIL

STAFF, HB 21-1164 REVISED FISCAL NOTE, App’x A (Mar. 16, 2021).9

The question before this Court is whether the General Assembly

has the authority to gradually reduce those temporary tax credits to

effectively restore the correct levy over time and whether reducing the

temporary tax credits requires advance voter approval under TABOR.

8“A ‘mill’ is a unit representing one tenth of a cent, and is used to

express the property tax rate per dollar of the assessed evaluation of
that property. For example, a tax rate of 60 mills means that taxes are
$0.06 per dollar of assessed value of the property.” Bolt v. Arapahoe
Cnty. Sch. Dist. No. Six, 898 P.2d 525, 527 n. 3 (Colo. 1995).
9Available at https://tinyurl.com/sc2ktnu5 (last visited Apr. 8, 2021).
Appendix A lists the amount of each district’s temporary tax credits.

17
The General Assembly does have this authority.10 And, for the reasons

discussed below, advance voter approval is not required at either the

State or school-district levels.

10 The Colorado Constitution charges the General Assembly with

providing for a uniform and thorough system of free public education, and
this Court has approved of the General Assembly’s authority to require a
local government “to pay its statutorily mandated share under a
dual[-]funding formula,” such as this one. COLO. CONST. art. IX, § 2; Mesa
County, 203 P.3d at 528 (discussing Colo. Dep’t of Soc. Servs. v. Bd. of
Cnty. Comm’rs, 697 P.2d 1, 17 (Colo. 1985), superseded by statute on other
grounds as recognized in Romer v. Bd. of Cnty. Commr’s, 956 P.2d 566,
570 (Colo. 1998)). Thus, requiring the credit reductions is within the
General Assembly’s authority. Indeed, there is no material difference
between requiring these reductions and specifying the level at which the
school districts must set their mill levies, as the General Assembly did in
the original 1994 Act and has gone unchallenged for the last 27 years. As
such, the argument in this brief focuses on whether the General
Assembly can require the school districts to reduce the temporary credits
without either the school districts or the General Assembly first seeking
voter approval.

18
 APPLICABLE LEGAL STANDARDS

Two sets of interpretive principles apply here: (1) principles

applicable when interpreting TABOR, and (2) principles of statutory

construction.

Interpretation of TABOR. When interpreting a constitutional

amendment, the Court’s goal is to give effect to the intent of the electorate

that adopted it. Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo. 1996).

To do so, the Court gives TABOR’s terms their “ordinary and popular

meaning.” Bolt, 898 P.2d at 532.

But when interpreting TABOR, the Court also seeks to adopt an

interpretation that “harmonizes different constitutional provisions

rather than an interpretation which would create a conflict between such

provisions.” Id.; see also Zaner, 917 P.2d at 283. Additionally, the Court

avoids interpretations that lead to “an unjust, absurd[,] or unreasonable

result,” Bickel v. City of Boulder, 885 P.2d 215, 229 (Colo. 1994), and has

“consistently rejected readings of [TABOR] that would hinder basic

government functions or cripple the government’s ability to provide

19
services.” Barber v. Ritter, 196 P.3d 238, 248 (Colo. 2008) (citing Havens

v. Bd. of Cnty. Comm’rs, 924 P.2d 517, 521 (Colo. 1996)).

Statutory Interpretation. The purpose of statutory interpretation is

“to give effect to the General Assembly’s purpose or intent in enacting the

statute.” Martin v. People, 27 P.3d 846, 851 (Colo. 2001). To do so, the

Court examines the statute’s language and, if the language is

unambiguous, applies it as written. Resolution Tr. Corp. v. Heiserman,

898 P.2d 1049, 1054 (Colo. 1995).

But again, interpretations that lead to absurd or illogical results

are not followed because “[i]t is presumed that the legislature intends a

just and reasonable result when it enacts a statute.” City of Ouray v. Olin,

761 P.2d 784, 788 (Colo. 1988); City of Westminster v. Dogan Const. Co.,

930 P.2d 585, 590 (Colo. 1997); Frazier v. People, 90 P.3d 807, 811 (Colo.

2004); see also Gen. Motors. Corp. v. City & County of Denver, 990 P.2d

59, 75 (Colo. 1999) (rejecting interpretation of “nonresident” that would

lead to absurd results). Even unambiguous statutes must be interpreted

20
to avoid constructions that lead to absurd results. LaFond v. Sweeney,

343 P.3d 939, 943 (Colo. 2015).

If a statute is subject to more than one reasonable interpretation,

then it is ambiguous. In cases of ambiguity, courts consider “indicia of

legislative intent,” including the legislation’s purpose, the legislative

history, and “the consequences of a particular construction.” Dogan

Const. Co., 930 P.2d at 590 (citing § 2-4-203(1)(a), (c) & (e), C.R.S.). The

ultimate goal of consulting these sources is to identify and give effect to

the legislature’s intent. § 2-4-203(1), C.R.S.

SUMMARY OF THE ARGUMENT

Correcting the mill levies set in violation of the 1994 Act does not

require advance voter approval under TABOR. There are only two types

of TABOR districts implicated here: (1) the State, and (2) the school

districts. TABOR does not require either of them to obtain advance voter

approval to correct a statutory violation, as will happen under HB21-

1164.

21
 No statewide TABOR vote is necessary because requiring school

districts to reduce temporary property tax credits to correct a statutory

violation at the local level does not implicate any of the State’s TABOR

obligations. The State is not the constitutionally relevant taxing

authority.

As for the school districts, no election is necessary because the

credit reductions merely correct the school districts’ prior illegal mill

levies. There is no question that when school districts followed CDE’s

direction and calculated their mill levies under the 1994 Act without

giving effect to their waiver elections, they violated the 1994 Act. Mesa

County makes that clear.

And nothing in TABOR suggests that a vote of the people is

necessary to correct a statutory violation to bring a district back into

compliance with the law. Indeed, such an interpretation would lead to

absurd and illogical results. If anything, TABOR’s language suggests

that the voters who adopted it would not have anticipated voting on

whether to correct a statutory violation.

22
 In this situation, it would be especially unreasonable to require

advance voter approval. At CDE’s direction, the school districts set their

mill levies illegally by disregarding their voters’ waiver elections in the

first place. A vote to reduce the temporary tax credits is essentially a vote

that asks whether a school district can start giving full effect to waivers

the district already received years ago. Requiring a school district to seek

voter approval to give effect to voter approval already received makes no

sense.

Because the removal of the temporary tax credits as required by

HB21-1164 merely corrects the violations of the 1994 Act caused by

ignoring the prior school district waiver elections, it does not require

advance voter approval. The interrogatory should be answered in the

affirmative.

ARGUMENT

TABOR imposes requirements on both the State and local

governments. See, e.g., COLO. CONST. art. X, § 20(1) & (2)(b) (applying

certain provisions to “districts” and defining a “district” as “the state or

23
any local government, excluding enterprises”); Mesa County, 203 P.3d at

527. Among other things, TABOR generally requires the State and local

governments to seek voter approval for certain tax and debt measures.

See, e.g., COLO. CONST. art. X, § 20(4). But because the State and local

government obligations are independent of each other, whether TABOR

requires advance voter approval to reduce the temporary tax credits at

issue requires independently analyzing TABOR’s application to the State

and the school districts. See Mesa County, 203 P.3d at 528.

As discussed below, requiring school districts to effectively increase

their mill levies by gradually reducing the temporary property tax credits

without first seeking voter approval does not violate TABOR at either the

State or school-district levels when, as here, it is necessary to correct a

statutory violation. This Court should answer the interrogatory in the

affirmative.

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I. Reducing the temporary tax credits does not require
statewide voter approval because it does not implicate
any of the State’s TABOR obligations.

While the State has a variety of obligations under TABOR, reducing

the temporary local property tax credits under HB21-1164 to correct a

statutory violation does not implicate any of them. In Colorado’s dual-

funded school finance scheme, the school districts are the relevant taxing

districts for the local share of program funding under TABOR because

the school districts “are responsible for imposing, collecting[,] and

expending local property taxes.” Mesa County, 203 P.3d at 528. This is

true even though the school districts levy the tax at the State’s direction

Id.

So, even though a state law directs the school districts on how to set

their mill levies, the school districts—not the State—are the relevant

TABOR district. See id. at 530 (“Although under the [1994 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

25
district is the only ‘district’ with the authority to change tax policy within

the meaning of article X, section 20.”). The State does not need advance

voter approval to require school districts to reduce the temporary

property tax credits.

II. TABOR does not require the school districts to seek

advance voter approval to reduce the temporary tax
credits and effectively increase their mill levies.

The gradual reduction of temporary credits at the school-district

level implicates only one TABOR provision: the requirement for advance

voter approval of a “mill levy above that for the prior year.” COLO. CONST.

art. X, § 20(4)(a). 11 Although HB20-1418 already reset the mill levies to

11Because the tax credits are explicitly temporary, § 22-54-106(2.1)(d),

C.R.S. (district boards of education “shall grant a temporary property tax
credit”), their removal is not a tax policy change; the credits were always
intended to be removed. Cf. COLO. CONST. art. X, § 20(4)(a) (requiring
advance voter approval for, among other things, a “tax policy change
directly causing a net tax revenue gain”). But even if viewed as a tax
policy change directly resulting in a net tax revenue gain, the removal of
the temporary credits would not require advance voter approval for the
reasons discussed in this Section II because reducing the credits remedies
the prior statutory violation.

26
where they would have been but for the unauthorized reductions, that

action had no practical effect because the temporary tax credits

completely offset the new mill levies. Property owners remained

unaffected. As the credits are removed, however, the mill levy a property

owner pays will increase in each impacted school district, effectively

resulting in a mill levy above that set in the 2019 property tax year.

Despite that practical impact, TABOR does not require advance voter

approval for these credit reductions because all they do is correct the

prior violations of the 1994 Act.

A. Mill levies set before SB07-199 that ignored valid

revenue limit waiver elections violated the 1994
Act.

Three points are central to the conclusion that school districts do

not require advance voter approval to implement HB21-1164. First, the

1994 Act required school districts to follow the statutory formula when

setting their mill levies. The 1994 Act’s language demonstrates that it

was a non-discretionary formula. It commanded that “each district shall

levy the lesser of” one of a set of mill levy limits. § 22-54-106(2)(a)(I),

27
C.R.S. (emphasis added). This Court has held that “shall” generally

indicates that the legislature intended the command to be mandatory.

People v. Hyde, 393 P.3d 962, 969 (Colo. 2017); Ryan Ranch Cmty. Ass’n.

v. Kelley, 380 P.3d 137, 146 (Colo. 2016) (“Like the word ‘shall,’ the word

“must” connotes a mandatory requirement.”). Nothing in that language

suggests that the formula was anything other than a mandatory

provision prohibiting the school districts from enacting a lower mill

levy.12

Second, the 1994 Act’s formula required the school districts to give

effect to their waiver elections. There is nothing novel in that conclusion

because it reflects what this Court stated in Mesa County: “the [1994 Act]

incorporated by reference the revenue limit, which as quoted above,

12The General Assembly may require a local government such as a school

district “to pay its statutorily mandated share under a dual[-]funding
formula.” Mesa County, 203 P.3d at 528. TABOR also specifically
recognizes the General Assembly’s authority in public school finance. See
COLO. CONST. art. X, § 20(9) (making “public education through grade 12”
one of the few areas in which a local district may not reduce or eliminate
funding obligations created by the General Assembly).

28
includes the capacity for adjustments authorized by waiver election.”

Mesa County, 203 P.3d at 524 (emphasis added).

The statute provides strong support for that conclusion. The 1994

Act’s revenue-limit language 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

[(TABOR)].” § 22-54-106(2)(c), C.R.S. (1994). TABOR’s property tax

revenue limit restricts a district’s year-over-year revenue from growing

by more than a percentage equal to “inflation in the prior calendar year

plus annual local growth, adjusted for property tax revenue changes

approved by voters after 1991 ….” COLO. CONST. art. X, § 20(7)(c)

(emphasis added). That last phrase is important because a waiver

election is a revenue change approved by voters. Havens v. Bd. of Cnty.

Comm’rs, 924 P.2d 517, 523–24 (Colo. 1996) (describing a vote to retain

revenue in excess of a revenue limit as a “revenue change”). Thus, based

on the 1994 Act’s plain language, the waiver elections should have been

29
honored immediately after the voters granted their approval, as this

Court held in Mesa County.

Indeed, as Mesa County noted, it was only because of how CDE

administered the 1994 Act that the waiver elections were disregarded;

nothing in Mesa County suggests the language was ambiguous. Mesa

County, 203 P.3d at 535 (“The waiver elections were effective

immediately and gave the school districts … the right to receive property

tax revenue above the subsection (7)(c) limit. However, this result was

not implemented because of the manner in which the CDE administered

the [1994 Act]” (emphasis added)).

Even if there had been any ambiguity in the 1994 Act, an

examination of the legislative history shows that the 1994 Act required

giving effect to the waiver elections because the General Assembly’s goal

was to have the school districts fund as much of their total program as

possible. Hearing on H.B. 94-1001 Before the Colo. Sen. on Second

Reading, 59th Gen. Assem., 2d Reg. Sess. (Mar. 22, 1994) (statement of

30
Sen. Wells). Giving effect to the waiver elections was the only way to

achieve that goal.

Third, mill levies set without giving effect to the waiver elections

violated the 1994 Act. Because the 1994 Act imposed a non-discretionary

formula for setting school district mill levies and because that formula

required giving effect to the waiver elections, school districts that

reduced their mill levies at CDE’s direction to avoid exceeding their no-

longer-applicable revenue limit violated the 1994 Act. Reducing the

temporary tax credits, as HB21-1164 requires, seeks to finally correct

those violations.

B. TABOR’s election provisions do not apply to

correcting past statutory violations because
TABOR only requires voter approval for
discretionary legislative acts and complying with
the 1994 Act was not discretionary.

The Court’s goal in interpreting TABOR is to give effect to the will

of the voters who adopted it. Huber v. Colo. Mining Ass’n, 264 P.3d 884,

889 (Colo. 2011). While the Court looks to TABOR’s language in that

31
analysis, a necessary part of interpreting TABOR’s language is doing so

in a way that avoids unjust, absurd, or unreasonable results. Id.

Nothing in TABOR expressly addresses the State’s or local

governments’ need to obtain voter approval to increase a mill levy or a

tax rate when it is necessary to correct a reduction that was set in

violation of statute. This Court’s precedent demonstrates, however, that

voter approval is not required.

The Court has held that TABOR’s limits “apply only to

discretionary action taken by legislative bodies.” Huber at 892. This

restriction makes sense given that TABOR’s purpose was “to ‘protect

citizens from unwarranted tax increases’ and to allow citizens to approve

or disapprove the imposition of new tax burdens.” Id. at 890 (quoting In

re Submission of Interrogatories on S.B. 93-74, 852 P.2d 1, 4 (Colo. 1993)).

But when correcting a prior statutory violation, whether a tax-

related change is “warranted” or not is not the issue. It is merely what

the law requires. The wisdom of the statute has already been decided.

Similarly, tax changes that correct past statutory violations are not “new”

32
tax burdens—they are the tax burdens that should have existed the

entire time and that, but for the violation, would have been in place.

More fundamentally, whether to comply with the 1994 Act (or any

other mandatory statutory requirement) is not a discretionary choice the

school districts can make to which TABOR’s limits apply under Huber.

As discussed above, the school districts could not choose whether to

comply with the 1994 Act’s formula. Indeed, it is difficult to see how the

General Assembly could ever create a funding regime that would

reasonably comply with the requirement that the General Assembly

“shall … provide for the establishment and maintenance of a thorough

and uniform system of free public schools throughout the state …” if the

school districts did not need to comply with the funding regime the

General Assembly creates. COLO. CONST. art. IX, § 2.

Because complying with a mandatory state law is not a decision

over which the school districts had any discretion, requiring them to now

comply with that law does not require advance voter approval. TABOR

33
does not require advance voter approval before HB21-1164’s temporary

credit reductions go into effect.

C. TABOR’s election provisions demonstrate that the

voters who adopted TABOR did not intend to
require advance voter approval to correct
statutory violations.

The timing of TABOR elections also sheds light on what voters

intended when they enacted TABOR. Specifically, voter approval under

TABOR may only be sought “in a state general election, biennial local

district election, or on the first Tuesday in November of odd-numbered

years.” COLO. CONST. art. X, § 20(3)(a). Districts must also mail voters

information about the election at least 30 days in advance. Id., § 20(3)(b).

But in the case of a statutory violation that must be corrected by

increasing a mill levy or a tax rate, for example, time is of the essence.

As long as the violation persists, the district will suffer the consequences

brought on by the loss of revenue to which it was entitled—including the

possible reduction in government services—all because of the

misapplication of the law. See Barber v. Ritter, 196 P.3d 238, 248 (Colo.

2008) (holding TABOR should be interpreted to avoid constructions that

34
could cripple government and its ability to provide services). If the

district must seek voter approval to correct the violation, then those

losses will persist until the next TABOR election, effectively enshrining

the violation in law until the next election can occur.

This cannot be what the voters intended in adopting TABOR. This

interpretation would require believing that the voters sought not just to

limit discretionary government actions, Huber, 264 P.3d at 890, but to

actively prevent government from correcting its mistakes and to

potentially harm themselves through related reductions in government

services.

For example, if a city council acting without a quorum passed a

resolution that reduced the city’s sales tax rate, the full city council could

not pass a resolution recognizing the impropriety of the reduction,

voiding that prior resolution, and reinstating the correct rate. Instead,

the city would have to wait until the next election occurred to ask for

permission to correct the rate even though the reduction should never

have happened in the first place. And until that occurs and the election is

35
successful, the city will lose revenue on which it may have been counting

to provide government services.

The same result would occur if the General Assembly created a

formula for calculating a tax rate and the administering agency

misapplied it, instructing taxpayers to pay a lower rate than they should.

The General Assembly would be powerless to correct the error until it

could put the correction before the voters at the ballot box. The State may

then lose revenue it was depending on to satisfy its constitutional

obligations to balance the budget. See COLO. CONST. art. X §§ 2 & 16

(requiring sufficient taxes to cover estimated expenses and prohibiting

appropriations in excess of tax, respectively).

These examples further demonstrate why the voters adopting

TABOR could not have intended to require advance voter approval to

correct statutory violations and why such an interpretation would lead to

absurd results. TABOR does not require advance voter approval of the

temporary credit reductions under the facts here.

36
 D. It would be unreasonable to interpret TABOR to
require new voter approval to give effect to the
impact of the successful elections the school
districts already conducted.

Finally, in the situation here, it would be particularly unreasonable

to require advance voter approval of the tax credit reductions. The

problem that HB21-1164 is designed to correct is one that first arose

because the district’s already-valid waiver elections were disregarded

when applying the 1994 Act. In essence, any new election would seek

permission from voters to now give effect to their previous approval to

waive the property tax revenue limits.

Interpreting TABOR as requiring advance voter approval in this

situation is illogical. Nothing in TABOR indicates that voters should

have to grant subsequent approval to give their prior approval its full

effect. The voters already voted to remove their school districts’ property

tax revenue limit and with that should have come the removal of the

property tax revenue limit when applying the 1994 Act. HB21-1164’s

credit reductions merely implement the voters’ approval to waive the

revenue limit that the districts already received. This Court should
37
conclude that no further approval is necessary and answer the

interrogatory in the affirmative.

CONCLUSION

HB20-1418 and HB21-1164, together, correct long-standing

violations of the 1994 Public School Finance Act caused by failing to give

effect to successful revenue limit waiver elections as the 1994 Act

required. This correction is well within the General Assembly’s authority,

and nothing in TABOR requires that the General Assembly or school

districts receive prior voter approval before reducing the temporary

property tax credits as will occur under HB21-1164. The interrogatory

should be answered in the affirmative.

Respectfully submitted this 8th day of April 2021,

By: /s/Russell D. Johnson

TERRY GILL
First Assistant Attorney General, 22398*
RUSSELL D. JOHNSON
Senior Assistant Attorney General, 48482*
Attorneys for the Governor of the State of Colorado
*Counsel of Record

38
 CERTIFICATE OF SERVICE

This is to certify that I have duly served the within GOVERNOR’S

INTERROGATORY ANSWER BRIEF upon all parties listed below by
Colorado Courts E-Filing or by email (as required by the Court’s March
25, 2021 order) this 8th day of April 2021, addressed as follows:

Mark G. Grueskin Daniel E. Burrows

RECHT KORNFELD, P.C. PUBLIC TRUST INSTITUTE
Attorney for multiple individual
Sharon L. Eubanks members of the Colorado General
Julie A. Pelegrin Assembly
OFFICE OF LEGISLATIVE LEGAL
SERVICES
Attorneys for the Colorado General
Assembly
Natalie Hanlon Leh
Suzanne Taheri Eric R. Olson
George H. Brauchler Kurtis T. Morrison
MAVEN LAW GROUP Noah C. Patterson
Attorneys for Colorado Rising COLORADO DEPARTMENT OF LAW
State Action Attorneys for Philip J. Weiser, in
his official capacity as the Attorney
General for the State of Colorado

/s/Hayley Somers __________________

Hayley Somers

39