Havens v. Board of County Com'rs of County of Archuleta, 95SC572

Decision Date23 September 1996
Docket NumberNo. 95SC572,95SC572
Citation924 P.2d 517
PartiesF.T. HAVENS, Petitioner, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF ARCHULETA, Colorado, Respondent.
CourtColorado Supreme Court

Dugan & Associates, Thomas P. Dugan, William E. Zimsky, Durango, for Petitioner.

Larry W. Holthus, Pagosa Springs, for Respondent.

Larry W. Berkowitz, Littleton, for Amicus Curiae City of Littleton.

Holme Roberts & Owen, LLC, Patricia C. Tisdale, Erin M. Smith, Denver, for Amicus Curiae City of Lafayette and Town of Frisco.

Hall & Evans, L.L.C., Thomas J. Lyons, Denver, for Amicus Curiae Colorado Counties, Inc.

David W. Broadwell, Denver, for Amicus Curiae the Colorado Municipal League.

Joseph N. de Raismes, III, Boulder, for Amicus Curiae City of Boulder.

Justice HOBBS delivered the Opinion of the Court.

We granted certiorari before judgment, under C.A.R. 50, to review a judgment of the District Court for Archuleta County in favor of the Board of County Commissioners of Archuleta County (Board). 1 The district court held that article X, section 20, of the Colorado Constitution (Amendment 1) did not prohibit the County's electorate from approving a referred measure authorizing retention and expenditure of excess revenue collections which exceed Amendment 1 limits. Absent voter approval, Amendment 1 would have required refund of these revenues. Petitioner, F.T. Havens (Havens), contended that the referred measure violated Amendment 1, section (7)(d), for failure to require a revenue reduction in future years to offset the retained revenues, and he sought an injunction requiring refund of the excess revenues. The Board moved for summary judgment. Havens responded with a Motion for Judgment on the Pleadings. There were no material facts in contention, and the district court ruled in favor of the Board. We affirm the judgment.

I.

On November 8, 1994, the voters of Archuleta County approved Referred Measure 1BA (Referred Measure), by a vote of 1152 to 759. The Referred Measure stated:

PROVIDED THAT NO LOCAL TAX RATE OR MILL LEVY SHALL BE INCREASED WITHOUT FURTHER VOTER APPROVAL, SHALL ARCHULETA COUNTY, COLORADO BE AUTHORIZED TO COLLECT, RETAIN AND EXPEND ALL EXCESS REVENUES AND OTHER FUNDS COLLECTED DURING 1994 AND EXPIRING AFTER 1997 (4 YEARS) WITHOUT FURTHER VOTER APPROVAL EXCEPT FOR STATE GRANTS WHICH COULD BE COLLECTED, RETAINED OR EXPENDED STARTING IN 1994 AND EACH SUBSEQUENT YEAR THEREAFTER, NOTWITHSTANDING THE LIMITATIONS OF ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION. 2

Havens contends that the Referred Measure violates section (7)(d) of Amendment 1, which provides that:

If revenue from sources not excluded from fiscal year spending exceeds these limits in dollars for that fiscal year, the excess shall be refunded in the next fiscal year unless voters approve a revenue change as an offset. Initial district bases are current fiscal year spending and 1991 property tax collected in 1992. Qualification or disqualification as an enterprise shall change district bases and future year limits. Future creation of district bonded debt shall increase, and retiring or refinancing district bonded debt shall lower, fiscal year spending and property tax revenue by the annual debt service so funded. Debt service changes, reductions, (1) and (3)(c) refunds, and voter-approved revenue changes are dollar amounts that are exceptions to, and not part of, any district base. Voter-approved revenue changes do not require a tax rate change.

(Emphasis added). Havens argues that the Referred Measure must be nullified, and the excess revenues refunded, in that the voter-approved measure did not require Archuleta County to make offsetting revenue reductions in future years equal to the excess revenues authorized to be retained and expended. The Board responds that the Referred Measure is fully effective, in that its electorate has authority to approve retention and expenditure of the excess revenues without regard to a compensating revenue reduction. 3 We agree with the Board.

A.

Adopted by Colorado's electorate on November 3, 1992, Amendment 1 places limits on the ability of state and local government to tax and spend. Bolt v. Arapahoe County Sch. Dist. No. Six, 898 P.2d 525, 527 (Colo.1995) (Bolt ). Its provisions require voter approval for certain state and local government tax increases and restrict property, income, and other taxes. Submission Of Interrogatories On Senate Bill 93-74, 852 P.2d 1, 4 (Colo.1993) (Senate Bill 93-74 ). By adopting Amendment 1, the voters of this state intended to exercise "greater direct control over government growth by, among other things, setting various spending and revenue limits and requiring voter approval of measures that would increase debt, spending, or taxes." Zaner v. City of Brighton, 917 P.2d 280, 284 (Colo.1996) (Zaner ).

We have observed that Amendment 1 operates to impose "a limitation on the power of the people's elected representatives." Bickel v. City of Boulder, 885 P.2d 215, 226 (Colo.1994) (Bickel ). While Amendment 1 "circumscribes the revenue, spending, and debt powers of state and local governments," creating a series of procedural requirements, "it does not create any fundamental rights." City of Wheat Ridge v. Cerveny, 913 P.2d 1110, 1115 (Colo.1996). Independent of Amendment 1, the people have reserved the right to enact or reject proposed measures at the polls. Bickel, 885 P.2d at 226. Amendment 1's election provisions, by including a reference to referred measures, indicate the intent of this constitutional provision to allow voters to consider matters referred to them by state or local government. See Amendment 1, § (3)(b). In addition, the General Assembly has defined the term "referred measure" to include any ballot question or ballot issue submitted to its eligible electors by any local governmental entity. § 1-1-104(34.5), 1B C.R.S. (1996 Supp.). Such referred measures encompass "[a]pproval of revenue changes pursuant to section 20(7) of article X of the state constitution." § 1-41-103(4)(d), 1B C.R.S. (1996 Supp.). Interpretations of Amendment 1 which would limit the right of the electorate to vote on tax, spending, debt, or other proposals are not favored. § 1-41-101, 1B C.R.S. (1996 Supp.). 4

Voter approval to allow variation from otherwise applicable limits is a key feature of Amendment 1. Amendment 1 "requires voter approval for tax increases and limits spending increases unless approved by the electorate." City of Aurora v. Acosta, 892 P.2d 264, 268 (Colo.1995) (Acosta ). In the absence of voter approval, collection, retention, or expenditure of revenues in excess of the applicable limits must be refunded with interest. Id.

Accordingly, section (4)(a) of Amendment 1, recites that, starting November 4, 1992, voter approval must be obtained in advance for "any new tax, tax rate increase, mill levy above that for the prior year, valuation for assessment ratio 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." Likewise, section (4)(b) requires voter approval for creation of multiple-fiscal year direct or indirect debt or financial obligation, unless adequate present cash reserves are pledged irrevocably and held to make the necessary payments in all future years.

Revenue and spending increases by state and local government are limited by Amendment 1, section (7). With regard to local government, 5 section (7)(b) provides that "[t]he maximum annual percentage change in each local district's fiscal year spending equals inflation in the prior calendar year plus annual local growth, adjusted for revenue changes approved by voters after 1991 and (8)(b) and (9) reductions."

Under section (7)(c), the "maximum annual percentage change in each district's property tax revenue equals inflation in the prior calendar year plus annual local growth, adjusted for property tax revenue changes approved by voters after 1991 and (8)(b) and (9) reductions." Section (7)(d) provides, in pertinent part, that "[i]f revenue from sources not excluded from fiscal year spending exceeds these limits in dollars for that fiscal year, the excess shall be refunded in the next fiscal year unless voters approve a revenue change as an offset." 6

In Acosta, 892 P.2d at 268, we interpreted Amendment 1 as requiring voter approval for the collection, retention, or expenditure of revenue increases in three instances: first, where a district proposes any of the forms of revenue increases detailed in section (4)(a); second, where revenues exceed the dollar amounts of the section (7)(b) spending limits; and third, under section (3)(c), where revenues generated by a specific tax increase exceed the estimated maximum dollar amount included in the election notice and ballot title under which voters approved the tax increase.

B.

In prior cases, we have considered and rejected allegations that local government was retaining and expending excess revenues in violation of Amendment 1.

In Bolt, we recognized that "[i]t is evident from the language of Amendment 1 that the voters wanted to reserve for themselves the decisions on whether to increase debt or increase taxes." 898 P.2d at 536. We there held that voter approval, which had been given prior to the adoption of Amendment l for indebtedness to be repaid by tax revenue, was to be construed as approval for both the debt and the debt repayment mechanism. Id. at 535. We declined "to adopt a rigid interpretation of Colorado Constitution Article X, Section 20(4)(a), which would have the effect of working a reduction in government services." Id. at 537.

Likewise, in considering pre-Amendment 1 approval of a vehicle registration fee to fund construction and operation of the E-470 Highway project, we held that the voters, in their initial vote, had already approved collection and expenditure of all revenues from the fee without the necessity of...

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