Teachers’ raises called "unconstitutional’ | VailDaily.com

Teachers’ raises called "unconstitutional’

Veronica Whitney
Daily file photoDouglas Bruce

Douglas Bruce, the Colorado Springs real estate investor who 10 years ago wrote the Taxpayers’ Bill of Rights, or TABOR, told Eagle County District Court Judge Richard Hart Question 3D “violates various provisions of the TABOR amendment.”

“The type of tax they are trying to collect is unconstitutional,” Bruce said. “The fact they are trying to collect unlimited amounts of tax money in perpetuity violates TABOR.”

Question 3D increases funding for the Eagle County School District by $3.1 million annually. Publisher Michael Cacioppo challenged the wording of the ballot item in February, when he filed a lawsuit against the school district.

Cacioppo alleges the language contained in the ballot question violates the terms of TABOR – a constitutional amendment that strictly regulates any tax increases and calls out specific language for ballot questions. Additionally, the lawsuit claims the district’s TABOR notice contained falsified dollar amounts and growth percentages and that the ballot language itself was false and misleading.

Richard Lyons, a Denver attorney for the school district, said two of Cacioppo’s claims have been dismissed because they were not filed in a timely manner.

“This is a question on the five-day rule and not on the wording of the ballot,” Lyons said. “If Mr. Cacioppo wanted to challenge the language on the ballot he should have done so within the five-day statute of limitation.”

State law dictates challenges to ballot language must come within five days from the date when it is legally certified.

Cacioppo is challenging the constitutionality of the five-day rule because he says the Colorado Constitution overrides the state’s revised statutes – and not vice versa.

“TABOR says you have four years to file a lawsuit from the day the new taxes are collected,” Bruce said. “So the constitution says four years, not five days.

“It’s impossible to comply with TABOR if the five-day-rule is applied,” he added. “Even me as the author of the amendment and with legal training (as an attorney) I wouldn’t be able to challenge the constitutionality of an issue in five days.”

Carol Curtis, Cacioppo’s attorney, said if Judge Hart decides the five-day rule is unconstitutional in this case, he will go forward and challenge the rest of Question 3D.

“It’s evidence that the five-day rule is valid,” said Pam Holmes Boyd, spokeswoman for the school district. “The district and its attorneys have always asserted that Question 3D complied with the law in both ballot language and its TABOR notice.”

Although the school district has been collecting 3D money since December 2001, it’s still holding the teachers’ raises, waiting for a resolution of the litigation, said Karen Strackbein, the school district’s director of finance.

“Because of the outstanding litigation, the district cannot offer a specific date regarding when the money will be paid to the teachers,” said Boyd.

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.

The case continues Feb. 11.

A case history:

– Feb. 25, 2002 – Michael Cacioppo files a lawsuit alleging the ballot language contained in Question 3D violates 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 missed a critical deadline because law dictates challenges must come within five days from the date when it is legally certified.

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

– Oct. 25 – Eagle County District Court Judge Richard Hart overturns Judge Ruland’s decision that in May dismissed a claim by Cacioppo that the Eagle County School District’s TABOR notice contained falsified dollar amounts and growth percentages. Judge Hart grants Cacioppo’s request for reconsideration, but denies two other motions, including a motion from Cacioppo to strike a brief by Salazar relating to the constitutionality of the five-day rule, a key factor affecting Cacioppo’s two ballot language challenges.

Veronica Whitney can be reached at 949-0555, ext. 454, or at vwhitney@vaildaily.com.

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