District Court, Larimer County, State of

Colorado
201 LaPorte Avenue, Suite 100 DATE FILED: March 10, 2017
Fort Collins, CO 80521-2761 CASE NUMBER: 2016CV31129
(970) 494-3500

In the Matter of:

Petition of Poudre School District R-1 COURT USE ONLY

Case No.: 16CV31129

Courtroom: 5A

ORDER REGARDING VERIFIED PETITION FOR JUDICIAL

CONFIRMATION OF POWERS AND
ACTIONS PURSUANT TO C.R.S. 11-57-213, AND MOTIONS TO
DISMISS

I. INTRODUCTION
THIS MATTER comes before the Court on the Verified Petition for
Judicial Confirmation of Powers and Actions Pursuant to C.R.S. 11-57-213
(Petition) filed by Petitioner Poudre School District R-1 on December 9,
2016, and on five Motions to Dismiss filed by Respondents Eric Sutherland,
Eric Norrie, Victoria Lee, William Werst III, and Michael Pruznick
(collectively, Respondents), each filed on January 27, 2017, as well as the
supplemental motions filed by Mr. Pruznick on February 13, 2017
(collectively, Motions). The Court has reviewed these briefs, all responses
and replies, and the other items in the file. The Court has also considered the
additional evidence and argument on these issues presented at the February
23, 2017 hearing.
For the reasons set forth below, the Court hereby DENIES the
Motions to Dismiss and CONFIRMS the powers and actions of Petitioner as
to Ballot Issue 3C.

1
II. FACTUAL AND PROCEDURAL BACKGROUND
This matter arises out of a ballot measure submitted to voters by the
Poudre School District which sought approval for issuing bonds, levying ad
valorem property taxes, and collecting, retaining, and spending earnings from
investment of the proceeds of the debt, to fund improvements to school
buildings and facilities. The language of Ballot Issue 3C was approved by
resolution by the Poudre School District Board of Education. Ballot Issue 3C
read as follows:
SHALL POUDRE SCHOOL DISTRICT R-1 DEBT BE
INCREASED BY UP TO $375 MILLION, WITH A
MAXIMUM REPAYMENT COST OF UP TO $629
MILLION, AND SHALL DISTRICT TAXES BE
INCREASED BY UP TO $34.9 MILLION ANNUALLY,
FOR THE PURPOSE OF ACQUIRING, CONSTRUCTING,
IMPROVING, EQUIPPING AND FURNISHING
DISTRICT BUILDINGS AND OTHER PROPERTY,
INCLUDING BUT NOT LIMITED TO:
NEW SCHOOLS AND ADDITIONS TO EXISTING
SCHOOLS
ONGOING FACILITIES IMPROVEMENTS
A NEW TRANSPORTATION FACILITY
A NEW ATHLETIC COMPLEX
BY THE ISSUANCE AND PAYMENT OF GENERAL
OBLIGATIONS BONDS, OR OTHER MULTIPLE FISCAL
YEAR OBLIGATIONS WHICH MAY BE USED AS
MATCHING MONEYS FOR FINANCIAL ASSISTANCE
FROM THE STATE UNDER THE BUILDING
EXCELLENT SCHOOLS TODAY ACT, WHICH DEBT
SHALL BEAR INTEREST, MATURE, BE SUBJECT TO
REDEMPTION, WITH OR WITHOUT PREMIUM, AND
BE ISSUED, DATED AND SOLD AT SUCH TIME OR
TIMES, AT SUCH PRICES (AT, ABOVE OR BELOW PAR)
AND IN SUCH MANNER AND CONTAINING SUCH
TERMS, NOT INCONSISTENT HEREWITH, AS THE
BOARD OF EDUCATION MAY DETERMINE; SHALL
AD VALOREM PROPERTY TAXES BE LEVIED IN ANY
YEAR, WITHOUT LIMITATION AS TO RATE AND IN
AN AMOUNT SUFFICIENT TO PAY THE PRINCIPAL
OF, PREMIUM, IF ANY, AND INTEREST ON SUCH
2
 DEBT AND TO FUND ANY RESERVES FOR THE
PAYMENT THEREOF; AND SHALL ANY EARNINGS
FROM THE INVESTMENT OF THE PROCEEDS OF
SUCH DEBT AND SUCH TAXES BE A VOTER-
APPROVED REVENUE CHANGE THAT THE DISTRICT
MAY COLLECT, RETAIN AND EXPEND WITHOUT
LIMITATION UNDER ARTICLE X, SECTION 20 OF THE
COLORADO CONSTITUTION (TABOR) OR ANY
OTHER LAW?
This measure was submitted to voters within the boundaries of Poudre
School District, and approved by a majority of these voters at the November
8, 2016 general election. The result was submitted for recount, and approval
was confirmed on December 8, 2016.
Before the election, this ballot question and one other were challenged
by Eric Sutherland, a Respondent in this case, pursuant to C.R.S. 1-11-203.5.
That case was ultimately dismissed. However, due to statements made by Mr.
Sutherland in public meetings and in emails to school district employees and
board members which indicated that he would file other contests of the ballot
issue, Petitioner now has concern that investors will be discouraged from
participating in the issuance of bonds because of the threat of litigation.
Indeed, Petitioner asserts that the threats of litigation are sufficient to have
prevented it from actually issuing the bonds that were approved by the voters.
Therefore, Petitioner seeks to confirm its actions and powers in
submitting the ballot measure as written to the voters, and to obtain prior
approval for taking action consistent with the ballot measure. 1
Petitioner submitted its Petition under C.R.S. 11-57-213, which
specifically allows it to obtain confirmation of these issues before bonds are
even issued. Subsection (1) of the statute provides:
In its discretion, the public entity may file a petition prior to the
issuance of securities under the supplemental public securities

1
Petitioner has also filed an action for declaratory judgment against Mr.
Sutherland; that action has been consolidated with this action before this Court
because it has common issues of law and fact, but any issues in that case will be
addressed in separate proceedings.

3
 act in the district court in any county in which the public entity
or a portion thereof is located for a judicial examination and
determination of any power conferred; any securities issued by
the public entity or authorized to be issued by the public entity;
any taxes, assessments, fees, or charges levied or otherwise
made by the public entity or contracted to be levied by the
public entity or otherwise made by the public entity; or of any
other act, proceeding, or contract of the public entity whether
or not such act, proceeding, or contract has been taken or
executed, including proposed contracts for any improvement;
proposed securities of the public entity to defray in whole or in
part the cost of the project or any refunding; the proposed
acquisition, improvement, equipment, maintenance, operation,
or disposal of any property pertaining thereto; or any
combination thereof.
Id. The statute requires that the petition be verified by the presiding officer of
the public entity. Id. at (2). As submitted, the Petition was verified by Tessa
Oppenheimer, the Secretary and designated election official for the Poudre
School District Board of Education; Petitioner later submitted other
verifications from the Superintendent for Poudre School District, Dr. Sandra
Smyser, and from the President of the Poudre School District Board of
Education, Cathy Kipp.
The statute further requires that the clerk of the district court provide a
notice of the petition, including the date, time, and place of the hearing. Id. at
(4). This notice must be published at least once a week for five consecutive
weeks, and posted in the office of the public entity at least 30 days prior to the
hearing date. Id. Here, notice was published in the Coloradoan beginning on
Friday, December 23, 2016 and ending on Friday, January 20, 2017. It was also
posted in the offices of the Poudre School District more than 30 days prior to
the hearing.
The notice provided that property owners within the boundaries of the
Poudre School District could appear by filing either a Motion to Dismiss or an
Answer by January 27, 2017. Each of the five Respondents in this case filed a
Motion to Dismiss. The Court later provided additional time to supplement
these briefs. Mr. Pruznick submitted supplemental briefs on February 13,

4
2017. Petitioner filed a Consolidated Response to the Motions to Dismiss on
February 17, 2017.
The Petition proceeded to a hearing on February 23, 2017. At the
hearing, the Court heard additional argument by the Respondents on their
Motions to Dismiss. Petitioner then presented their case, calling the following
witnesses: Dave Montoya, Dee Wisor, and Dr. Sandra Smyser. Mr. Wisor was
qualified as an expert in the field of public finance, with limitation as to the
Courts consideration of his ultimate legal determinations. The Court admitted
the following exhibits during Petitioners case: Petitioners Exhibits 1, 2, 3, 4,
5, 6, and 7. Respondents then presented their case, and called Cathy Kipp,
Danielle Clark, and Eric Sutherland as witnesses. The Court admitted the
following exhibits during Respondents case: Respondents Exhibits I and J.
Mr. Pruznick also offered his Exhibits Q1-Q14 at the hearing, but as
Petitioner had not had adequate time to review them, the Court allowed it file
any objections in writing following the hearing. Petitioner indicated it did not
object to these exhibits. The Court hereby admits them.
Respondents filed Reply briefs on their Motions to Dismiss after the
hearing. Mr. Sutherland and Ms. Lee filed briefs on February 28, 2017. Mr.
Pruznick filed a Closing Comments brief on this date, which the Court
construes as a Reply brief. Mr. Werst also filed a Reply brief on March 1, 2017.
Though reply briefs were due on February 28, 2017, the Court will consider
this brief in light of the restrictions on timing of filing briefs that exist for pro
se litigants. Finally, the Court granted Petitioners Motion to File a Surreply
which was deemed filed as of March 6, 2017.
III. ANALYSIS
A. Motions to Dismiss
As stated above, five Respondents filed Motions to Dismiss in
response to the Petition. As some, but not all, of the issues raised by the
Motions are raised by more than one Respondent, the Court will address the
issues in the same order as the Petitioner did in its Consolidated Response.

5
 1. Verification of petition
Respondents contend that the Petition was not properly verified
pursuant to C.R.S. 11-57-213(2). This subsection requires that a petition
brought under the statute be verified and signed by the presiding officer of
the public entity. As stated above, Tessa Oppenheimer, the Secretary and
designated election official for the Poudre School District Board of
Education, signed the Petition. The term presiding officer is not defined in
the statute; Petitioner contends that this lack of definition leaves it open to the
public entity to designate such a person and that their designation is
reasonable. Further, it contends that even if Ms. Oppenheimer is not the
presiding officer, the lack of proper verification should be disregarded by
the Court in light of the statutory directive that the Court shall disregard any
error, irregularity, or omission that does not affect the substantial rights of the
parties. C.R.S. 11-57-213(10). Finally, it argues that any defect has been
remedied by affidavits and additional signed verifications for the Petition from
the Superintendent for Poudre School District, Dr. Sandra Smyser, and from
the President of the Poudre School District Board of Education, Cathy Kipp.
Blacks Law Dictionary defines presiding officer as [a]n officer who
presides, esp. over a civilian court or deliberative assembly. Officer, Blacks Law
Dictionary (10th ed. 2014). It suggests for further reference the definition for
preside, [t]o be in charge of a formal event, organization, or company;
specif., to occupy the place of authority, esp. as a judge during a hearing or
trial [or t]o exercise management or control, and for chair, [a]
deliberative assembly's presiding officer. Preside, Blacks Law Dictionary (10th
ed. 2014); Chair, Blacks Law Dictionary (10th ed. 2014).
Under these definitions, the Court does not agree that Ms.
Oppenheimer is the presiding officer of the Poudre School District. Rather,
considering the plain meaning of the statutory language, the Court agrees with
Respondents that the term refers to the person who presides over the entire
public entity. In her affidavit filed in connection with the Consolidated
Response, Dr. Smyser herself stated that she is the chief executive officer in
administering the affairs of [the Poudre School District], and that she
6
authorized the proceedings here, as well as responses to other ballot contest
actions previously brought against the school.
However, the Court finds that this error is not one which impacts the
substantial rights of the parties. Dr. Smyser herself authorized the filing of this
Petition at a school board meeting; thus, the discrepancy was not any strategy
to mislead the public as to the Petitioners position regarding the election or
other issues. That it was Petitioners counsel that specifically requested that
Ms. Oppenheimer verify the Petition further indicates to the Court a good
faith effort to comply with the procedural requirements of the statute, to the
harm of none involved.
Thus, the Court will disregard any defect in the original verification and
accept the proffered verification of validation from Dr. Smyser. Indeed, it
appeared to the Court that the parties agree that the additional proffered
verifications are an adequate cure of this issue, as evidenced by discussion on
this issue at the February 23 hearing.
2. Ex parte communication
Respondents contend that improper ex parte communications between
the Court and Petitioner occurred at the case management conference on
December 20, 2016. At the time of the case management conference,
however, Petitioner Poudre School District was the only party to this in rem
proceeding. The very purpose of the case management conference was to set a
date for the hearing so that notice of said hearing could be published to allow
residents to intervene in the action; without the notice (including the date)
there could be no other parties to this case. Moreover, as reflected in the
minute order, the Court did not discuss the merits of the case with counsel.
Therefore, the Court concludes that the case management conference was not
improper in any way.
3. Consolidation
The Court will not dismiss the Petition on the grounds of improper
consolidation. The Court granted the Petitioners Motion to Consolidate on
January 20, 2017. The import of this consolidation was re-iterated in the

7
Courts February 10, 2017 Order Regarding Motions for Costs and Fees,
where the Court stated:
That case has merely been consolidated with this case because
the two cases involve common questions of law and fact. At
this point, that means only that both cases will be heard by the
same judge. It does not mean that Case No. 2017CV31130 has
been resolved or that any party has prevailed. It also does not
necessarily mean that the cases will be tried or appealed
together. See C.R.C.P. 42(a) and (b); see also Denver v. Bd. of
Assessment Appeals, 748 P.2d 1306, (Colo. App. 1987) (noting
that generally even after consolidation at the trial level,
separate actions retain their separate identities for purposes of
appeal and the appellate procedures applicable to each).
Consolidation is a limited procedural device meant to promote judicial
efficiency, and was properly employed here. Moreover, the propriety of the
consolidation, which occurred after the Petition was filed and after the last
publication of notice was made, has no bearing on the underlying merits of
the Petition. Thus, dismissal of the Petition on such a basis would be
improper in any event.
4. Vagueness
Respondents seek dismissal of the Petition on the basis of vagueness.
The only coherent argument on this issue was raised by Mr. Pruznick, who
asserts that Ballot Issue 3C approved an impossibility that cannot be
complied with because the ballot language asks whether debt and taxes should
be increased by the issuance and payment of bonds. He asserts that taxes are
not increased by issuing bonds, but instead, that taxes are raised for the
purpose of creating a revenue stream to pay debt. He thus contends that
proper ballot language would ask whether debt and taxes should be increased
for the issuance and payment of bonds. Petitioner responds that the by the
issuance of bonds provision refers to the debt increase provision, not the tax
increase provision.
The Court agrees with the Petitioner that the language at issue is not
vague. The Petitioners reading of the ballot language is logical and
grammatically correct.

8
 5. TABOR determinations
Mr. Sutherland asserts that the Petition is an impermissible attempt to
use a statute to abridge the right to sue for taxes collected in a manner that is
inconsistent with [TABORs] requirements, and that the action runs contrary
to the statement in C.R.S. 11-57-202 and 204 that no action brought under
C.R.S. 11-57-201 et seq. should be read as authorizing acts otherwise barred
by TABOR.
Petitioner contends that seeking a determination about the propriety of
its conduct under TABOR is not in conflict with the provision of TABOR
allowing taxpayers to file suit. It further contends that it is not utilizing the
statue for the purpose of holding an election that is inconsistent with TABOR,
but rather, to seek a determination that the election was held consistently with
it.
The Court finds that the subject matter of the Petition is proper under
the statute, and that the determination sought is not one that bars the right of
taxpayers to bring suit.
In particular, the very purpose of this statutory provision is to permit a
public entity to request a judicial determination of its power to issue securities
and assess taxes. The statute states that it may not be construed to authorize
conduct that is otherwise barred under TABOR. Therefore, the other
subsection allowing these confirmation proceedings presumably would not be
violation of TABOR on its own. Further, a public entity filing a petition to
confirm the validity of its action is distinct from conducting TABOR-violative
action in the first instance.
Whether Petitioners conduct was, in fact, consistent with TABOR,
however, is a substantive concern, rather than a purported procedural defect.
Accordingly, this issue, to the extent it is raised in connection with this
validation petition, is discussed in more detail below.
6. Time for responsive pleadings
The time given by the Court for responses to the Petition, i.e., until
January 27, 2017 with the later-added option to file supplemental motions or

9
authority by February 13, 2017, was proper. C.R.S. 11-57-213(5) governs
responses to any such petition by residents:
(5) Any resident in the public entity or owner of real property
within the boundaries of the public entity may appear at the
hearing by either filing a motion to dismiss or an answer to the
petition on or before the hearing date or within such time as the
court may allow. The petition shall be taken as confessed by all
persons who fail to appear.
Id. (emphasis added). Therefore, it was within the Courts authority to set an
alternate response period. Indeed, the statute contemplates an abbreviated
response period in subsection (11)s command to set the hearing at the
earliest practicable moment. Additionally, Respondents were, in fact, able to
submit their Motions in a timely matter, and were given additional time to
supplement these Motions if desired.
7. Time for factual investigation
As stated above, the Courts timeline for responses to the Petition was
proper. There is no basis for the contention that the timeline for such
responses had to take into consideration the timeline for a response to a
request under the Colorado Open Records Act. In any event, even if the
Court had not extended the response deadlines and the hearing date,
information obtained pursuant to a CORA request would have been received
prior to the even first hearing date, and in time to be properly submitted and
considered as evidence. Finally, there was no showing that any additional
information would have been relevant to the issues before the Court.
8. Authorization for filing
Mr. Pruznick contends that the Petition was improperly filed because
there was no indication it was approved by the Poudre School District School
Board, which would be required for the entity to properly file suit. Petitioner
asserts that the Board of Education has delegated all lawful authorities of the
Board not otherwise specifically retained to Dr. Smyser. Dr. Smysers affidavit
confirms that she has been granted the authority to file suit specifically.
Therefore, there are no grounds for dismissal on this basis.

10
 9. Request for recusal
In his supplemental motion, Mr. Pruznick sought a change of venue
or change of judge due to established prejudice, namely, the Courts
statements during the February 3, 2017 setting. The Court declines to grant
this request, which it construes as a request for recusal.
First, the Court was within its authority to grant the requested
continuance prior to any response as it was an emergency motion, filed by the
party seeking relief in the matter and well-founded on grounds beyond the
Petitioners control. The Respondents provided no good reason for denying
the emergency motion. Given that a primary purpose of the hearing was for
the Court to hear evidence relating to the Petition, it was in the interest of all
involved the Court, the Petitioner, and the Respondents to delay so that
this could be accomplished. In addition, the continuance permitted an
extension of the deadline for brief submission, to the benefit of all parties.
Next, while the off-the-record nature of the February 3, 2017 setting,
which was for the purpose of re-setting the hearing and establishing deadlines
and procedures, understandably makes recall of exact statements difficult, Mr.
Pruznicks depiction of the Courts statements made during this setting is not
correct.
The Court stated that Petitioner could proceed in presenting its case
and evidence in the matter it saw fit because it was the party seeking relief.
The Court further stated, in response to a contention by a Respondent that he
intended to read every reference to a certain phrase in the Colorado Revised
Statutes into the record at the hearing, that it would appropriately control the
presentation of argument and evidence to conform to the issues in dispute.
The Court did so during this hearing, limiting presentation of irrelevant issues
and limiting the scope of the hearing to additional argument on the Motions
to Dismiss, and evidence relating to the merits of the Petition.
Finally, the Court indicated in that setting conference that it would not
set separate hearings on these Motions not because it had already decided to
deny them, but because arguments in response to the Petition were a proper

11
subject at the hearing. The Court therefore considered additional arguments
on the Motions at the hearing.
10. Conclusion
The Court finds that there are no grounds requiring dismissal of the
Petition for procedural irregularities. Accordingly, the Motions to Dismiss are
DENIED to the extent that they raised these issues. Further argument offered
relating to the merits of the Petition is considered below.
B. JUDICIAL CONFIRMATION OF POWERS AND
ACTIONS PURSUANT TO C.R.S. 11-57-213
1. Confirmation Issue 1
First, Petitioner requests confirmation that:
1(a). Any contention that Ballot Issue 3C was misleading by
failing to express whether revenues from taxes and investment
are excluded from TABOR revenue retention limitations is
barred by the five-day time period of C.R.S. 1-11-203.5.
1(b). Alternatively, Ballot Issue 3C was not misleading or
unlawful concerning the retention of revenues under TABOR.
The specific provision at issue here is: Shall any earnings from the investment
of the proceeds of such debt and such taxes be a voter-approved revenue
change that the district may collect, retain and expend without limitation .
Petitioner seeks confirmation to rebut two arguments that were made
by Mr. Sutherland during his pre-election ballot contest: first, that this
provision in the ballot fails to identify what revenues may be retained by
Petitioner, and second, that it was unnecessary because the district had
previously obtained approval for retention and spending of revenue from
increased taxes (known as a de-brucing measure).
As a threshold matter, the Court agrees with the Petitioner that any
challenge on the grounds that a ballot provision is misleading constitutes a
challenge to ballot language, not its substance. Therefore, any such challenge is
barred at this time under C.R.S. 1-11-203.5. That statute provides that it is
the exclusive procedure to contest or otherwise challenge the order of the

12
ballot or the form or content of the ballot title, and requires that actions be
brought within five days after the ballot title is set by the political subdivision.
Accordingly, because the five day time period has long since passed,
Petitioners ability to implement Ballot Issue 3C cannot be hindered by an
action alleging it is misleading.
In addition, even if considered on the merits, the contention that the
language at issue was misleading or unnecessary is without merit. C.R.S. 31-
11-111(3), governing the requirements of municipal ballot titles, provides that:
In fixing the ballot title, the legislative body or its designee shall
consider the public confusion that might be caused by
misleading titles and shall, whenever practicable, avoid titles for
which the general understanding of the effect of a yes or no
vote would be unclear. The ballot title shall not conflict with
those titles selected for any other measure that will appear on
the municipal ballot in the same election. The ballot title shall
correctly and fairly express the true intent and meaning of the
measure.
As further explained by courts interpreting the substantially similar
provision in the statute governing statewide ballot titles, C.R.S. 1-40-106
(3)(b), this is a requirement that the title be fair, clear, and accurate [and]
not mislead the voters through a material omission or misrepresentation.
Matter of Title, Ballot Title & Submission Clause for 2015-2016 #63, 2016 CO 34,
23, 370 P.3d 628, 634. It is not necessary, however, that the title spell out
every detail of a proposal. Id. Thus, where the title adequately informs
voters of the key elements and purposes of its provisions, it is adequate even
where it omits detailed descriptions of how these provisions operate. Matter of
Title, Ballot Title & Submission Clause for 2015-2016 #63, 2016 CO 34, 28-29,
370 P.3d 628, 635; see also In re Title, Ballot Title & Submission Clause, & Summary
for Proposed Initiative on Educ. Tax Refund, 823 P.2d 1353, 1355 (Colo. 1991)
(The board is not required to describe every nuance and feature of the
proposed measure.). Nor is there any requirement that the ballot initiative
fully set forth the possible interplay with other existing laws. Matter of Title,
Ballot Title & Submission Clause for 2013-2014 #85, 2014 CO 62, 25, 328. On
review by the court, a ballot title should only be disturbed if it contains a

13
material and significant omission, misstatement, or misrepresentation. Matter
of Title, Ballot Title & Submission Clause for 2013-2014 #85, 2014 CO 62, 38,
328 P.3d 136, 147.
The Court finds that the language at issue is not misleading. The plain
language of the ballot makes clear, without any ambiguity, that the district will
be collecting, retaining, and expending both the earnings from the
investment of the proceeds of such debt and such taxes. Further, the Court
agrees with Petitioner that the fact that the district had previously approved
retention and spending of tax revenue does not mean that clarifying that the
school district will do that with the revenues it raises here is a misstatement or
otherwise confusing.
2. Confirmation Issue 2
Second, Petitioner requests confirmation that:
2(a). Any contention that Ballot Issue 3C was misleading by
exempting the collection, retention, and expenditure of revenue
from the application of TABOR and any other law is barred
by the five-day time period of C.R.S. 1-11-203.5.
2(b). Alternatively, Ballot Issue 3C was not misleading or
unlawful concerning collection, retention, or expenditures of
revenues under any other law.
This issue also relates to the final clause of the ballot language: Shall any
earnings from the investment of the proceeds of such debt and such taxes be
a voter-approved revenue change that the district may collect, retain and
expend without limitation under Article x, Section 20 of the Colorado
Constitution (TABOR) or any other law? (emphasis added).
Here, Petitioner seeks to rebut a contention that the reference to any
other law is misleading because other laws could limit this action under
which voter approval would not be valid grounds for exemption from its
applicability. Again, this was an argument specifically raised by Respondent
Eric Sutherland in his pre-election challenge to Ballot Issue 3C. Petitioner
asserts that to its knowledge, no other law applies which would restrict
Petitioners collection, retention, and expenditure of revenues, and whether
any law would be deemed to apply is speculative.

14
 As discussed above, the Court agrees with the Petitioner that any
challenge based on this argument is a challenge to the ballot language.
Therefore, it would be time-barred under C.R.S. 1-11-203.5. Additionally,
the Court agrees on the merits. There is no requirement that the ballot
language explain every possible interaction that a ballot measure may have
with other laws, Matter of Title, Ballot Title & Submission Clause for 2013-2014
#85, 2014 CO 62, 25, 328, particularly when no interaction is identified or
alleged.
3. Confirmation Issue 3
Third, Petitioner seeks confirmation that:
3(a). Any contention that Ballot Issue 3C violated any rule
requiring expression as single subject by failing to disclose that
the property tax increase would increase tax increment revenues
to be allocated to other entities is barred by the five-day time
period of C.R.S. 1-11-203.5.
3(b). Alternatively, Ballot Issue 3C was lawful concerning its
single subject, as disclosure of the tax increment revenue to be
received by other entities was not required.
Specifically, Petitioners contend that Ballot Issue 3C does not violate the
single subject requirement for local ballot issues. This requirement was
developed by courts based on the identical requirement in the Colorado
Constitution which is applicable to statewide ballot issues. Here, the challenge
lodged against this ballot measure was that it did not disclose that the
proposed tax increase, if approved, would cause tax increment revenues to be
allocated to the downtown and urban renewal authorities in the district
pursuant to a tax increment financing (TIF) scheme. This challenge was
raised by Mr. Sutherland in his pre-election contest and by Respondents in
their Motions to Dismiss and related briefing in this matter. It was also
extensively addressed at the February 23 hearing.
First, the Court agrees with the Petitioner that a challenge based on the
single-subject requirement is subject to the procedural requirements of C.R.S.
1-11-203.5. See Busse v. City of Golden, 73 P.3d 660, 664 (Colo. 2003).
Therefore, any challenge now or in the future on that basis is time-barred.

15
 Additionally, Ballot Issue 3C does not violate the single subject
requirement. The single subject requirement is set forth in the Colorado
Constitution, Article X, Section 20, and codified in C.R.S. 1-40-106.5. It
states:
No measure shall be proposed by petition containing more than
one subject, which shall be clearly expressed in its title; but if
any subject shall be embraced in any measure which shall not be
expressed in the title, such measure shall be void only as to so
much thereof as shall not be so expressed. If a measure contains
more than one subject, such that a ballot title cannot be fixed
that clearly expresses a single subject, no title shall be set and
the measure shall not be submitted to the people for adoption
or rejection at the polls.
Colo. Const., art. X, 20.
A ballot initiative violates the single subject requirement if it has at
least two distinct and separate purposes that are not dependent upon or
connected with each other. In re Title, Ballot Title & Submission Clause, &
Summary For 1999-2000 No. 227 & No. 228, 3 P.3d 1, 4 (Colo. 2000) (en banc).
Conversely, a proposed initiative that tends to affect or carry out one general
objective or purpose presents only one subject, and provisions necessary to
effectuate the purpose of the measure are properly included within its text.
Matter of Title , Ballot Title & Submission Clause for 2013-2014 #85, 2014 CO 62,
12, 328 P.3d 136, 142. Simply put, it provides that a single ballot measure
may not pose a compound question to voters; each discrete issue must be
raised in its own measure for independent consideration.
The purposes of this requirement are: first, [t]o forbid the treatment
of incongruous subjects in the same measure, especially the practice of putting
together in one measure subjects having no necessary or proper connection,
for the purpose of enlisting in support of the measure the advocates of each
measure, and thus securing the enactment of measures that could not be
carried upon their merits; and second [t]o prevent surreptitious measures
and apprise the people of the subject of each measure, that is, to prevent
surprise and fraud from being practiced upon voters. C.R.S. 140
106.5(1)(e).

16
 The Court finds that Ballot Issue 3C does not violate the single subject
requirement. A supposed failure to disclose the effect of the tax increase
pursuant to other statutory mechanisms is simply not covered by the
requirement, which does not deal with disclosure.
Moreover, even if the single subject requirement required disclosure,
this ballot issue would not violate that requirement because the TIF scheme
has no bearing on the school districts request to raise taxes and issue bonds.
TIF mechanisms are a function of the Urban Renewal Law, C.R.S.
31-25-101 et seq., and the Downtown Development Authorities Law, C.R.S.
31-25-801 et seq. These laws allow for the creation of urban renewal authorities
(URAs) and downtown renewal authorities (DRAs), respectively, which
operate to address and improve blight and slum conditions in their
communities. C.R.S. 31-25-102; C.R.S. 31-25-801.
One way in which URAs and DRAs can do this is by including a TIF
mechanism in their urban renewal plan or downtown improvement plan. See
C.R.S. 31-25-107. A TIF scheme allocates property tax revenues between
that authority and the other taxing entities in the municipality. Id. at (9). The
allocation is meant to allow the URA and DRA to reap the benefits of
increased property values that it caused by its success in decreasing blight. See
E. Grand Cnty. Sch. Dist. No. 2 v. Town of Winter Park, 739 P.2d 862,
864 (Colo. App,. 1987). Thus, the TIF mechanism provides that the other
taxing entities receive the revenues attributable to the base valuation of
property in the district, i.e., the valuation of the property before adoption of
the renewal plan, and the URA or DRA receives the revenues attributable to
the incremental increases over the base valuation, which are deemed to be a
result in increased property value due to the project. See id.; C.R.S. 31-25-
107(9).
Considering this mechanism, the Colorado Supreme Court has held
that incremental revenue raised under a TIF mechanism is new money that
would not exist but-for the improvements in property value caused by the
downtown and urban renewal authorities. Denver Urban Renewal Authority v.
Byrne, 618 P.2d 1374, 1382 (Colo. 1980). Accordingly, those funds do not

17
belong to the taxing entity, only to the relevant renewal authorities. Id. In sum,
the Colorado Supreme Court has ruled that the TIF schemes do not divert any
revenue that the taxing entities would otherwise receive. Id.
Because these incremental revenues are not attributable to the taxing
entities, the taxation values for mill levies and other ad valorem tax
assessments are determined solely with reference to the base valuation. Ballot
Issue 3C appropriately sought approval to issue bonds to be paid back with an
ad valorem tax in an amount of up to $34.9 million annually, a value directly
correlated with the base valuation. The measure at issue related only to the
revenues to be raised, retained, and utilized by the school district. It is
undisputed that the school district has no control over the fact that additional
revenues are received by the DRAs and URAs because these are separately-
treated funds that the school district would never receive. For these reasons,
the school district did not address the TIF function in its ballot language.
Moreover, even if it had endeavored to do so, it would have no way of
estimating the amount of the incremental revenues raised as a result of the
TIF mechanisms and therefore no ability to disclose such an amount. Any
argument that the Petitioner was required to address the impact of Ballot Issue
3C on TIF is without merit.
4. Confirmation Issue 4
Fourth, Petitioner seeks confirmation that:
4(a). Any contention that Ballot Issue 3C was misleading by
requesting approval for the issuance of bonds without limitation
as to rate and term is barred by the five-day time period of
C.R.S. 1-11-203.5.
4(b). Alternatively, Ballot Issue 3C was not misleading or
unlawful concerning the approval sought for the rate and term
of the bonds to be issued.
As above, the Court agrees with Petitioner that any legal challenge now or in
the future on this basis would constitute a challenge to ballot language and is
therefore time-barred under C.R.S. 1-11-203.5.
On the merits, the Court also agrees with Petitioner that the statement
by the issuance and payment of general obligations bonds in such manner

18
and containing such terms, not inconsistent herewith, as the board of
education may determine is not misleading. In his prior ballot challenge,
Mr. Sutherland had asserted that this language was misleading because it
requested approval for the bonds without setting any limit as to their term or
rate. However, there is no requirement in TABOR that a bond initiative set
forth the rate, term, or other mechanics of the bond besides its amount and
repayment costs. And again, it is not required that an initiative set forth every
detail of how it operates, as long as its key provisions and purposes are
apparent. See Matter of Title, Ballot Title & Submission Clause for 2015-2016 #63,
2016 CO 34, 28-29, 370 P.3d 628, 635. Here, the language explains that
bonds issued will fall within the values and payment amounts set forth in the
title, that other terms of bond repayment will be left to the determination of
the school board, and that voters approval of the measure includes approval
of the school board setting those other terms.
The Court further agrees with Petitioner that the statement shall ad
valorem property taxes be levied in any year, without limitation as to rate and
in an amount sufficient to pay the principal of, premium, if any, and interest
on such debt and to fund any reserves for the payment thereof is not
misleading for failure to disclose further details about future taxation. As
Petitioner contends, the ballot sets forth the first year tax increase amount and
the final year phased-in amount, as required under TABOR. Further, it is
permissible under TABOR for voters to approve future mill levy increases as
needed to service the bonds; this will not affect the maximum amount of tax
revenue that would be received. See Bolt v. Arapahoe Cty. Sch. Dist. No. Six, 898
P.2d 525, 535 (Colo. 1995) (voters may give present approval for future
increases in taxes under Colorado Constitution Article X, Section 20(4)(a),
when the increase might be necessary to repay a specific, voter-approved
debt). The ballot language adequately conveys this concept, and is not
misleading.

19
 5. Confirmation Issue 5
Fifth, Petitioner seeks confirmation that Ballot Issue 3C was
consistent with the requirements of Colorado law, including but not limited to
TABOR, by expressing the property tax increase of $34.9 million annually as a
product of the base valuation of property within PSD boundaries, as described
in C.R.S. 31-25-107(9)(a)(I). Respondents repeatedly challenged this
practice in their briefs, in cross-examination of Petitioners witnesses, and in
presenting their own case, contending that it was an unlawful diversion of tax
dollars from the school district that was not disclosed in the ballot. Indeed,
Mr. Sutherland asserts in his Motion to Dismiss that the very purpose of his
prior ballot contests were to challenge this scheme, which he contends is
unconstitutional.
C.R.S. 31-25-107 sets forth the mechanism for approval of an urban
renewal project. Subsection (9)(a)(I) specifically provides that a plan may
designate that the revenues from property taxes levied by taxing entities be
divided with the portion of the revenues that are based on the property
valuation certified before approval of the renewal plan (the base valuation) be
allocated to that entity. Subsection (9)(a)(II) provides that the incremental
revenues above this valuation that are attributable to the urban renewal project
be allocated to that project.
Petitioners contend that Ballot 3Cs expression of the tax to be levied
with relation to the base valuation rather than any total valuation is both
logical, and the only practicable way to do this. The Court agrees. Indeed, Dee
Wisor, who was certified as an expert witness in public financing, testified that
it would likely be impossible to express the tax values in relation to the total
valuation with specificity, because the incremental increases likely to occur
would only be estimates. Although the Respondents appeared to object to
this, they provided no coherent argument or basis for concluding otherwise.
Petitioners further assert that its expression of the tax value was
consistent with TABOR. TABOR requires, with some exceptions inapplicable
here, that taxing entities obtain voter approval for any new tax, tax rate
increase, mill levy above that for the prior year, valuation for assessment ratio
20
increase for a property class, or extension of an expiring tax, or a tax policy
change directly causing a net tax revenue gain to any district [and for]
creation of any multiple-fiscal year direct or indirect district debt or other
financial obligation whatsoever without adequate present cash reserves
pledged irrevocably and held for payments in all future fiscal years. Colo.
Const. art. X, 20 (4)(a)(b). It further requires that ballot titles for these
measures be worded in a particular way, and that a notice of the election be
provided at least 30 days prior to the election. Id. at (3)(b), (c).
While the notice provision requires, among other things, a statement of
the estimated or actual total of district fiscal year spending for the current
year and each of the past four years, and the overall percentage and dollar
change[,] and the principal amount and maximum annual and total district
repayment cost [for proposed district bonded debt], and the principal balance
of total current district bonded debt and its maximum annual and remaining
total district repayment cost, there is no requirement that the notice explain
the fact that incremental revenue received above the base value will be
allocated to an improvement authority. Nor is there a requirement that this
information be included on the ballot. Indeed, as Mr. Wisor testified, it would
cause confusion to include this information because the entity levying the tax
here, the school district is not the same one that would be receiving the
incremental revenue. Accordingly, the Court finds no violation of TABOR or
other law.
6. Confirmation Issue 6
Finally, Petitioner seeks confirmation that the imposition of ad
valorem taxes necessary to receive $34.9 million annually as authorized by
Ballot Issue 3C, and the issuance of bonds as authorized by Ballot Issue 3C,
are lawful under Colorado law, including but not limited to TABOR. Having
concluded, as discussed above, that any legal challenges to the ballot language
now or in the future would be time-barred, that the ballot language was not
misleading in any event, and that no other grounds existed to find the measure

21
invalid under TABOR or any other law, the Court approves the issuance of
bonds and imposition of taxes consistent with Ballot Issue 3C.
IV. CONCLUSION
Accordingly, the Court finds no grounds on which to dismiss the
Petition and for the reasons set forth above, determines that the Petitioner is
entitled to the relief it requests. Therefore, the Court hereby confirms the
following:
1(a). Any contention that Ballot Issue 3C was misleading by
failing to express whether revenues from taxes and investment are
excluded from TABOR revenue retention limitations is barred by the
five-day time period of C.R.S. 1-11-203.5.

1(b). Alternatively, Ballot Issue 3C was not misleading or

unlawful concerning the retention of revenues under TABOR.
2(a). Any contention that Ballot Issue 3C was misleading by
exempting the collection, retention, and expenditure of revenue from
the application of TABOR and any other law is barred by the five-
day time period of C.R.S. 1-11-203.5.
2(b). Alternatively, Ballot Issue 3C was not misleading or
unlawful concerning collection, retention, or expenditures of revenues
under any other law.

3(a). Any contention that Ballot Issue 3C violated any rule

requiring expression as single subject by failing to disclose that the
property tax increase would increase tax increment revenues to be
allocated to other entities is barred by the five-day time period of
C.R.S. 1-11-203.5.
3(b). Alternatively, Ballot Issue 3C was lawful concerning its
single subject, as disclosure of the tax increment revenue to be received
by other entities was not required.

22
 4(a). Any contention that Ballot Issue 3C was misleading by
requesting approval for the issuance of bonds without limitation as to
rate and term is barred by the five-day time period of C.R.S. 1-11-
203.5.
4(b). Alternatively, Ballot Issue 3C was not misleading or
unlawful concerning the approval sought for the rate and term of the
bonds to be issued.
5. Ballot Issue 3C was consistent with the requirements of
Colorado law, including but not limited to TABOR, by expressing the
property tax increase of $34.9 million annually as a product of the base
valuation of property within PSD boundaries, as described in C.R.S.
31-25-107(9)(a)(I).
6. The imposition of ad valorem taxes necessary to receive $34.9
million annually as authorized by Ballot Issue 3C, and the issuance of
bonds as authorized by Ballot Issue 3C, are lawful under Colorado law,
including but not limited to TABOR.
Dated this 10th day of March, 2017.

BY THE COURT:

Devin R. Odell
District Court Judge

23