TOPS tax extension overturned

August 25, 2004
A judge Monday overturned the 2003 election that extended Colorado Springs’ Trails, Open Space and Parks tax, saying the ballot wording was illegal. It is thought to be the first time in Colorado history that a judge has overturned an election because the ballot wording violates the Taxpayer’s Bill of Rights.
Unless officials successfully appeal the ruling, the tax will expire in 2009, and the City Council will not be able to buy significant open space with tax revenues. Voters approved the 16-year extension of the 0.1-cent sales tax through 2025 by a more than 2-to-1 margin last April. TABOR author Douglas Bruce, however, said the election was not labeled properly as a tax increase and asked 4th Judicial District Judge Robert Lowrey to nullify the vote. Lowrey did that Monday, ruling that the city engaged in “a systematic disregard of the requirements of TABOR.” Although none of the city’s five misinterpretations of the law would have overturned the election alone, they did when taken as a whole. “I’m glad to have been vindicated,” Bruce said after learning of the ruling. “I’m glad the judge was willing to stand up against the government when the government violates the law.” City Councilwoman Margaret Radford, who lost an Aug. 10 county commission primary race to Bruce, said Monday the city will appeal the ruling because it thinks Lowrey misinterpreted TABOR. “It basically means the will of the people who voted for the TOPS extension has been thwarted,” Radford said of the ruling. Voters approved the tax in 1997 to buy large chunks of open space and to build regional trails and neighborhood parks. With the money, the city has bought popular areas such as Red Rock Canyon, Blodgett Peak and Stratton Open Space. More than 68 percent of voters supported the extension in April. Bruce sued several months later. The thrust of his lawsuit was that the city did not call the ballot issue a tax increase and did not follow procedures needed to hold a tax increase election. The council ran afoul of TABOR provisions when it did not take public input about the pros and cons of the election and did not list how much money the tax would raise in mailers sent to voters. Senior City Attorney Steve Hook argued that TABOR does not specifically list tax extensions as tax increases. Because of that, the city did not need to prepare the same materials before the election or start the question with the words “shall city taxes be increased,” he said. Lowrey ruled Bruce’s interpretation is correct because the city would raise as much as $200 million during the term of the extension. He said by refusing to take public comment on the issue, City Clerk Kathryn Young violated another TABOR provision. In a footnote, however, the judge noted that if an appellate court were to find his interpretation of “tax increase” is wrong, he would find the city in compliance with TABOR restrictions. Hook began working on the appeal Monday. If the ruling has not been overturned by early 2005, the city could put another TOPS tax extension question on the April election ballot, Radford said. Several officials said they think it would have enough support to pass. Vice Mayor Richard Skorman, one of the TOPS tax’s biggest proponents, called Bruce “vindictive.” “The voters knew full well what they were voting for,” Skorman said. “It’s this one man who seems to distrust government and does everything he can to negate taxpayers’ will.” Bruce called Monday for the resignations of Young and City Attorney Patricia Kelly for mishandling the election. “It was the most outrageous TABOR violation I’ve seen in 12 years” since the statewide law passed, Bruce said. “It was systematic. It was also intentional. And it was flagrant.” WHAT’S NEXT Colorado Springs officials have three options after a judge threw out the results of the 2003 election in which voters extended the TOPS tax by 16 years: - Appeal the ruling. Officials said Monday they will do this. - Change the wording of the ballot title and hold another election. This is a likely scenario if the appeal is not successful by early next year. - Do not hold another election and let the tax expire in 2009. Officials do not support this option.
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