Question 3D trial drags on

Veronica Whitney

After a two-day trial on the legality of Question 3D, Eagle County District Court Judge Richard Hart set a schedule Wednesday for closing arguments in 20 days.

The arguments will be sent to him by mail.

“We believe that we showed a strong case,” said Richard Lyons, an attorney for the school district, after the trial ended. “We’re trying to prove that the school district didn’t have a disregard of the law when it drafted Question 3D and the TABOR notice.”

3D “misled voters’?

The trial started Tuesday, almost a year after Michael Cacioppo, a local publisher, filed a lawsuit against the school district alleging the ballot language contained in the Question 3D, which increased funding for the Eagle County School District by $3.1 million annually. Cacioppo claimed the measure violated the terms of the state’s Taxpayers’ Bill of Rights, or TABOR, which strictly regulates all tax increases, as well as mandates specific language for ballot questions. Cacioppo’s lawsuit claims the district’s TABOR notice contained falsified dollar amounts and growth percentages and that the ballot language was false and misleading.

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“Ms. Strakbein has given erroneous testimony when she said that the fiscal years used in the TABOR notice were correct, because they weren’t,” Cacioppo said, referring to Karen Strakbein, financial director with the school district. “The school district misled voters by telling them it was spending less money than it really was.”

In her deposition before the judge, Strakbein repeatedly said the fiscal-year expenditures published in the TABOR notice were correct.

“I didn’t want to deceive voters,” Strakbein told the judge. “I never falsified numbers or tried to give the wrong information.”

Under TABOR, school districts must make public the overall percentage of spending over the five-year period previous to asking for a tax increase.

The school district provided financial information from 1996 through 2001, adding 2002 in a separate part of the notice. However, the overall change in spending – 13 percent –was only calculated from 1996 to 2001. Calculating the change from 1997 through 2002 would have rendered a figure of 23 percent.

“Different interpretations’

Thomas Peltz, a bond lawyer from Denver who said he has worked on the drafts of more than 100 TABOR notices, provided expert witness testimony for the defense.

“Based on TABOR standards, the school district provided information for the wrong fiscal years. But it’s understandable where the confusion comes from,” he said. “The adoption of the TABOR amendment is so recent (1992) that it’s still subject to different interpretations. … Confusing calendar year with fiscal year could be one.”

TABOR notices should use current fiscal years, which for school districts starts July 1 and ends June 30. Peltz said the school district should have used the 2001-02 fiscal year as the last one in their notice instead of the 2000-01.

“They didn’t include the percentage change for that year, but they included the financial information,” Peltz said. “Somebody with a calculator at home could have got to the 23 percent using that information.”

Despite the fact the school district published the financial information for the incorrect fiscal years on the TABOR notice, Peltz said, the mistake wouldn’t invalidate Question 3D and its outcome.

“The Supreme Court has ruled that (the TABOR notice) doesn’t have to be in strict compliance of TABOR,” he said. “Now, if the school district keeps making the same mistakes in following ballot questions, the judge could take that into account.”

“Substantial compliance’

Judge Hart agreed with Peltz.

“The standard is “substantial compliance,'” Hart said.

Defense witness Lauren Kingsbery, an attorney for the Colorado Association of School Boards, said the Eagle County School District tried to comply with statute and the laws, even using one of the Colorado Association of School Boards’ samples to draft Question 3D.

“We never intended to mislead voters with the ballot language,” said Kingsbery.

Defense witnesses on Tuesday included three former school board members who had approved the ballot language. They all told the judge they didn’t find Question 3D “misleading.”

Judge Hart said he didn’t expect the closing arguments to be ready for at least 35 days, after which both sides have had time to respond.

“And then, I need time to review the closing arguments, and that can take a while,” he said. “I still have cases from 1999.”

Although the school district has been collecting 3D money, the teachers’ raises are tied up pending the resolution of the case. If resolved in its favor, the district will pay them retroactively.

“If we lose the case, I’ll either appeal or file a new case,” Cacioppo said. “I anticipate that the school district and I will be in litigation on a number of issues in the next years.”

Case history:

– Feb. 25, 2002 – Michael Cacioppo files a lawsuit alleging the ballot language contained in Question 3D violated the terms of Colorado’s TABOR amendment.

– March 28 – The school district responds with a motion to dismiss the case. Additionally, the district asserts Cacioppo had missed a critical deadline because law dictates challenges to ballot language must come within five days from the date when it is legally certified.

– May 2002 – Judge Edwin Ruland dismisses Cacioppo’s claims falsified dollar amounts and growth percentages. The court also rules a claim concerning TABOR violations regarding the ballot language was untimely because the five-day rule is law. However, because Cacioppo challenged the constitutionality of the five-day law, Ruland allows Cacioppo to forward the constitutional question to the Colorado Attorney General’s office for consideration. Upon his review, Attorney General Ken Salazar opts to enter the case in favor of the district. He files his response, including 84 individual citations in support of the district’s position, putting the issue back in Eagle County.

– Oct. 25 – Eagle County District Court Judge Richard Hart overturns Judge Ruland’s May decision dismissing Cacioppo’s allegations of falsified dollar amounts and growth percentages. However, Hart grants Cacioppo’s request for reconsideration, however, but denies 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.

– Jan. 13 – Douglas Bruce, author of the TABOR amendment, says in a deposition before Judge Hart that Question 3D is unconstitutional because it violates TABOR.

– Feb. 7 – Judge Richard Hart issues an order saying the five-day rule doesn’t provide enough time to realistically determine and litigate complicated issues, such as the ones presented in Cacioppo’s lawsuit.

– Feb. 11 – Two-day trial on Question 3D begins.

– Feb. 12 – Trail ends. Judge Hart sets a schedule for closing arguments in 20 days.

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

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