Cacioppo’s TABOR claim is back |

Cacioppo’s TABOR claim is back

Veronica Whitney

On Oct. 25, Eagle County District Court Judge Richard Hart overturned a decision rendered in May by Judge Edwin Ruland.

Ruland had dismissed a claim by Cacioppo that a notice filed by the Eagle County School District relating to the Taxpayers Bill of Rights, or TABOR, contained falsified dollar amounts and growth percentages.

The issue will now be argued at trial on Jan. 13.

“This is a victory, but just a battle, not the war,” said Carol Curtis, Cacioppo’s attorney. “The judge’s decision reinstates one of the claims of our complaint. It will require a hearing to see if the school district’s non- compliance was the result of a good-faith effort or was intended to mislead the electors.”

Pam Holmes Boyd, spokeswoman for the school district, however, said the decision doesn’t represent a benchmark event in the litigation.

“This is the latest in a long chain of actions related to the case,” she said. “We maintain the strength of our case.”

Cacioppos’ lawsuit, filed in February, challenges the wording of last year’s Question 3D, which provided the school district with extra money as a cost-of-living adjustment to the Colorado School Finance Act.

The lawsuit prompted the district to return salary amounts back to their 2001 levels, rather than include the cost-of-living raises the voters approved. The payment of 3D money is tied to the successful outcome of litigation and possible appeal.

The three claims in Cacioppo’s lawsuit include:

– The 3D ballot language violates TABOR, under which property taxes are collected by the counties based on the stated needs of special districts – such as a municipality, a school or a fire district – along with estimates of assessed property values, new construction and inflation.

– The TABOR notice was incorrect and misleading.

– TABOR was violated by using false and misleading language in the

ballot language.

In his order, Judge Hart says the issue is whether the district substantially complied with TABOR.

“It’s interesting to note that Judge Hart recognized in his decision that the district was aware of TABOR deficiencies months before the election,” Cacioppo said. “I maintained that the district had an opportunity to correct those deficiencies and chose not to do so.”

Boyd said the school district emphatically maintains that it did not err in how it presented the 3D issue to the voters.

“The district and its attorneys have always asserted that Question 3D complied with the law in both ballot language and its TABOR notice,” she added.

“We understand that Mr. Cacioppo thinks his language was the correct one,” Boyd said. “We chose to go with the official legal advice of not only our attorneys but also attorneys from the Colorado Association of School Boards and attorneys throughout the state.”

Judge Hart granted Cacioppo’s request for reconsideration, but denied two other motions, including a motion from Cacioppo to strike a brief by the attorney general relating to the constitutionality of the five-day rule, a key factor affecting Cacioppo’s two ballot-language challenges.

The attorney general’s brief backs the district’s position, citing 84 individual cases in support of the constitutionality of the statute, which requires that challenges be filed within five days of ballot certification.

“The five-day rule may be valid for other issues at election, but not for TABOR,” Cacioppo said. “The important thing to remember is that the

constitution overrides Colorado revised statutes and not vice versa. The five-day rule was a Colorado revised statute, and the constitution is superior to that.”

Judge Hart also denied a motion from the district for oral arguments regarding pending motions.

“The district’s stuborness in refusing to strictly follow the state constitution has put their employees’ raises in jeopardy,” Cacioppo said.

“The employees should demand that the district fire their attorneys, whose only reason for tendering poor advise is to drive up their legal fees at taxpayer expense.”

Because of the outstanding litigation, the district cannot offer a specific date regarding when the money will be paid to the teachers. The school board has repeatedly stated its intention to pay the money retroactively if and when the case is decided in the district’s favor.

“It is Mr. Cacioppo’s responsibility that teachers aren’t getting the raises because he filed the lawsuit,” Boyd said. “Also, the will of the people being voiced in the election is being ignored.”

Veronica Whitney can be reached at 949-0555, ext. 454, or at

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