DISTRICT COURT, JEFFERSON COUNTY

STATE OF COLORADO

100 Jefferson County Parkway
Golden, Colorado 80401



TABOR FOUNDATION, a Colorado non-profit corporation,

Plaintiff,

v.

REGIONAL TRANSPORTATION DISTRICT, et al.,

Defendants.








COURT USE ONLY

James M. Manley (Reg. No. 40327)
Steven J. Lechner (Reg. No. 19853)
MOUNTAIN STATES LEGAL FOUNDATION
2596 South Lewis Way
Lakewood, Colorado 80227
(303) 292-2021
jmanley@mountainstateslegal.com
lechner@mountainstateslegal.com

Attorneys for Plaintiff


Case No.: 2013CV31974

Division: 1


BRIEF IN SUPPORT OF PLAINTIFFS
MOTION FOR PRELIMINARY INJUNCTION


DATE FILED: Octobei 29, 2013 6:33 PM
FILING ID: FB73A91CA7704
CASE NUMBER: 2013CV31974
i
TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................... iii

INTRODUCTION ..................................................................................................... 1

ARGUMENT ............................................................................................................. 3

I. THE TABOR FOUNDATION HAS A REASONABLE
PROBABILITY OF SUCCESS ON THE MERITS ..................................... 4

A. HB13-1272 Creates New Taxes Without Voter Approval, In
Violation Of TABOR ......................................................................... 4

B. HB13-1272 Is A Tax Policy Change Directly Causing A Net
Tax Revenue Gain To RTD And SCFD Without Voter
Approval, In Violation Of TABOR ................................................... 6

II. THE REMAINING REQUIREMENTS FOR A PRELIMINARY
INJUNCTION ARE SATISFIED .................................................................. 10

A. There Is A Danger Of Real, Immediate, And Irreparable Injury
Which Would Be Prevented By Injunctive Relief ............................. 10

B. There Is No Plain, Speedy, And Adequate Remedy At Law For
Defendants Constitutional Violations ............................................... 11

C. There Would Be No Disservice To The Public Interest
Involved In Enforcing The Colorado Constitution ............................ 11

D. The Balance Of Equities Tips In Favor Of The Injunction
Because The TABOR Foundation Is Likely To Succeed On
The Merits .......................................................................................... 12

E. The Injunction Will Preserve The Status Quo Because The
Unconstitutional Taxes Do Not Go Into Effect Until January 1,
2014 ................................................................................................ 12

III. THE WAIVER OF BOND IS APPROPRIATE ............................................ 13

CONCLUSION .......................................................................................................... 13

ii
EXHIBITS

Exhibit 1, HB13-1272

Exhibit 2, RTD Resolution 006 (Apr. 2, 2013)

Exhibit 3, SCFD Board of Directors Meeting Minutes (Mar. 28, 2013)

Exhibit 4, Affidavit of Penn Pfiffner

Exhibit 5, Colorado Legislative Council, Final Fiscal Note Concerning
HB13-1272 (July 18, 2013)

Exhibit 6, Regional Transportation District, Fiscal Analysis

iii

TABLE OF AUTHORITIES

Cases
Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Regl Transp.,
698 F.3d 885 (6th Cir. 2012) ......................................................................... 10

Arapahoe Cnty. Pub. Airport Auth. v. Centennial Express Airlines, Inc.,
956 P.2d 587 (Colo. 1998) ............................................................................. 12

Baca v. Moreno,
936 F. Supp. 719 (C.D. Cal. 1996) ................................................................ 13

Bickel v. City of Boulder,
885 P.2d 215 (Colo. 1994) ............................................................................. 7

Bolt v. Arapahoe County School District Number Six,
898 P.2d 525 (Colo. 1995) ............................................................................ 4

Bruce v. City of Colorado Springs,
129 P.3d 988 (Colo. 2006) ............................................................................. 4, 6

Cacioppo v. Eagle County School Dist. Re-50J,
92 P.3d 453 (Colo. 2004) ............................................................................... 9

City of Aurora v. Acosta,
892 P.2d 264 (Colo. 1995) ............................................................................. 1

Colorado Common Cause v. Meyer,
758 P.2d 153 (Colo. 1988) ............................................................................ 7

Colorado Wild v. U.S. Forest Service,
299 F. Supp. 2d 1184 (D. Colo. 2004) ........................................................... 13

Denver Firefighters Local No. 858 v. City & County of Denver,
292 P.3d 1101 (Colo. Ct. App. 2012) ............................................................ 4

Dodge v. Department of Social Servs.,
600 P.2d 70 (Colo. 1979 ................................................................................ 10

Doe v. Pittsylvania County, Va.,
842 F. Supp. 2d 927 (W.D. Va. 2012) ........................................................... 13

Gitlitz v. Bellock,
171 P.3d 1274 (Colo. Ct. App. 2007) ............................................................ 4, 10, 11

iv
HCA-Healthone, LLC v. City of Lone Tree,
197 P.3d 236 (Colo. Ct. App. 2008) .............................................................. 46, 9

Howard Elec. and Mechanical, Inc. v. Department of Revenue,
771 P.2d 475 (Colo. 1989) ............................................................................. 4

Huber v. Colorado Mining Assn,
264 P.3d 884 (Colo. 2011) ............................................................................. 4, 6, 8

Keller Corp. v. Kelley,
187 P.3d 1133 (Colo. Ct. App. 2008) ............................................................ 12

Mesa County Bd. of County Comrs v. State,
203 P.3d 519 (Colo. 2009) ............................................................................. 9

Nicholl v. E-470 Public Highway Authority,
896 P.2d 859 (Colo. 1995) ............................................................................. 10, 11

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft,
389 F.3d 973 (10th Cir. 2004) ...................................................................... 12

Preminger v. Principi,
422 F.3d 815 (9th Cir. 2005) ......................................................................... 12

Rathke v. MacFarlane,
648 P.2d 648 (Colo. 1982) ............................................................................. 4

Rodriguez v. Robbins,
715 F.3d 1127 (9th Cir. 2013) ....................................................................... 11

Sanger v. Dennis,
148 P.3d 404 (Colo. Ct. App. 2006) .............................................................. 12

Submission of Interrogatories on Senate Bill 93-74,
852 P.2d 1 (Colo. 1993) ................................................................................. 1

Constitutional Provisions

Colo. Const. art. X, 20 ............................................................................................ passim

Statutes

C.R.S. 32-13-107(1)(a) ........................................................................................... 2, 5

C.R.S. 32-9-119(2)(a) ............................................................................................. 1, 2, 5

v
C.R.S. 39-26-102(15)(a)(I) ..................................................................................... 3

C.R.S. 39-26-127 .................................................................................................... 2, 5, 6

C.R.S. 39-26-212 .................................................................................................... 2, 5, 6

C.R.S. 39-26-707(1.5)(b)(I) .................................................................................... 2

C.R.S. 39-26-707(1.5)(b)(II) .................................................................................. 2

C.R.S. 39-26-707(1)(c)(d), (2)(b)(c) ................................................................... 3

C.R.S. 39-28-202(4) ............................................................................................... 2

Regulations

Colo. Dept. of Rev. Reg. 39-26-707.1(1)(a)(i) .......................................................... 3

Other Authorities

Op. Atty Gen. No. 93-03 (Apr. 6, 1993) .................................................................. 7, 8

Op. Atty Gen. No. 95-02 (Apr. 14, 1995) ................................................................ 7, 8

Op. Atty Gen. No. 96-01 (Feb. 27, 1996) ................................................................. 7, 8

1
INTRODUCTION

Through this lawsuit, the TABOR Foundation seeks enforcement of the Taxpayers Bill
of Rights of the Colorado Constitution (TABOR). Colo. Const. art. X, 20. In 1992,
Colorado voters adopted TABOR, limiting the power of government districts to levy taxes
without voter approval. Colo. Const. art. X, 20; City of Aurora v. Acosta, 892 P.2d 264, 268
(Colo. 1995). TABOR was designed to protect citizens from unwarranted tax increases.
Submission of Interrogatories on Senate Bill 93-74, 852 P.2d 1, 4 (Colo. 1993). Accordingly,
TABOR requires voter approval for any new tax, tax rate increase, . . . or a tax policy change
directly causing a net tax revenue gain to any district. Colo. Const. art. X, 20(4)(a).
In the 2013 legislative session, the Colorado General Assembly enacted HB13-1272,
which unlawfully authorizes the Regional Transportation District (RTD) and the Scientific and
Cultural Facilities District (SCFD) to levy new sales and use taxes on food, beverages,
cigarettes, advertising materials, and food containers. See HB13-1272 (attached hereto as
Exhibit 1). These new taxes will be levied by RTD and SCFD, beginning January 1, 2014. Both
RTD and SCFD lobbied in support of HB13-1272. See RTD Resolution 006 (Apr. 2, 2013)
(attached hereto as Exhibit 2); SCFD Board of Directors Meeting Minutes 4.3 (Mar. 28, 2013)
(attached hereto as Exhibit 3). To aid its lobbying efforts, RTD identified numerous projects that
would receive the increased revenues generated by the HB13-1272 taxes. See Exhibit 2.
RTD and SCFD are government districts as defined by TABOR, and therefore their tax
policies are subject to voter approval. Colo. Const. art. X, 20(2)(b). RTD and SCFD have the
authority to levy sales and use taxes upon every transaction or other incident with respect to
which a sales tax is now levied by the state . . ., with several notable exceptions. C.R.S. 32-9-
2
119(2)(a); C.R.S. 32-13-107(1)(a). Prior to the passage of HB13-1272, RTD and SCFD had no
authority to levy sales and use taxes on food, beverages, cigarettes, advertising materials, and
food containers, as specified in HB13-1272. C.R.S. 32-9-119(2)(a); C.R.S. 32-13-107(1)(a);
C.R.S. 39-26-127; C.R.S. 39-26-212. HB13-1272 unlawfully creates new authority for RTD
and SCFD to tax these items.
1

The food tax created by HB13-1272, 45 (citing HB10-1191), applies to candy as
defined by C.R.S. 39-26-707(1.5)(b)(I): a preparation of sugar, honey, or other natural or
artificial sweeteners in combination with chocolate, fruit, nuts, or other ingredients or flavorings
in the form of bars, drops, or pieces. Candy shall not include any preparation containing flour
and shall require no refrigeration.
The beverage tax created by HB13-1272, 45 (citing HB10-1191), applies to soft
drinks as defined by C.R.S. 39-26-707(1.5)(b)(II): nonalcoholic beverages that contain
natural or artificial sweeteners. Soft drinks do not include beverages that contain milk or milk
products, soy, rice, or similar milk substitutes, or greater than fifty percent of vegetable or fruit
juice by volume.
The cigarette tax created by HB13-1272, 23, 6 (citing HB13-1144), applies to
cigarettes as defined by C.R.S. 39-28-202(4), which includes all tobacco products likely to be
offered to, or purchased by, consumers as a cigarette.

1
HB13-1272 also eliminates RTDs and SCFDs authority to tax low-emitting motor vehicles,
vending machine sales of food (other than candy and soft drinks), and machinery or machine
tools. HB13-1272, 23.

3
The advertising tax created by HB13-1272, 45 (citing HB10-1189), applies to
advertising materials that are distributed in Colorado by any person engaged solely and
exclusively in the business of providing cooperative direct mail advertising. C.R.S. 39-26-
102(15)(a)(I).
The food container tax created by HB13-1272, 45 (citing HB10-1194), applies to
nonessential food and beverage related items, such as utensils, napkins, grocery bags, bags for
bulk produce, carryout containers for leftover food, straws, toothpicks, stirring sticks, cup
sleeves, etc. C.R.S. 39-26-707(1)(c)(d), (2)(b)(c); Colo. Dept. of Rev. Reg. 39-26-
707.1(1)(a)(i).
TABOR Foundation members registered to vote within RTDs and SCFDs jurisdiction
buy and/or use food, beverages, cigarettes, advertising materials, and/or food containers.
Affidavit of Penn Pfiffner 34 (attached hereto as Exhibit 4). These members will be forced
to pay the taxes created by HB13-1272, but have had no opportunity to vote on these new taxes.
Id. 68. Absent an injunction, these new taxes will go into effect on January 1, 2014, in
violation of TABOR. HB13-1272, 7; Colo. Const. art. X, 20(4)(a). Accordingly, these new
taxes are unlawful and must be enjoined.
ARGUMENT

Entry of a preliminary injunction is appropriate here because: (a) the TABOR
Foundation has a reasonable probability of success on the merits; (b) there is a danger of real,
immediate, and irreparable injury which would be prevented by injunctive relief; (c) there is no
plain, speedy, and adequate remedy at law for Defendants constitutional violations; (d) there
would be no disservice to the public interest involved in enforcing the Colorado Constitution; (e)
4
the balance of equities tips in favor of the injunction; and (f) because the unconstitutional taxes
go into effect on January 1, 2014, the injunction will preserve the status quo pending final
resolution on the merits. Denver Firefighters Local No. 858 v. City & County of Denver, 292
P.3d 1101, 1104 (Colo. Ct. App. 2012) (citing Rathke v. MacFarlane, 648 P.2d 648, 65354
(Colo. 1982)); see also Gitlitz v. Bellock, 171 P.3d 1274, 1278 (Colo. Ct. App. 2007).
I. THE TABOR FOUNDATION HAS A REASONABLE PROBABILITY OF
SUCCESS ON THE MERITS.

A. HB13-1272 Creates New Taxes Without Voter Approval, In Violation Of
TABOR.

TABOR requires governmental entities to obtain voter approval before imposing any
new tax . . . . Huber v. Colorado Mining Assn, 264 P.3d 884, 886 (Colo. 2011) (quoting Colo.
Const. art. X, 20(4)(a)); Bolt v. Arapahoe County School District Number Six, 898 P.2d 525,
540 (Colo. 1995). HB13-1272 creates new sales and use taxes on food, beverages, cigarettes,
advertising materials, and food containerswithout voter approval. Accordingly, these new
taxes are unlawful and must be enjoined.
When a use tax is levied on new items, the expansion of the use tax . . . constitute[s] a
new tax.
2
HCA-Healthone, LLC v. City of Lone Tree, 197 P.3d 236, 242 (Colo. Ct. App. 2008);
see also Bruce v. City of Colorado Springs, 129 P.3d 988, 995 (Colo. 2006) (a tax increase
indicates that the tax burden borne by an individual taxpayer will be greater than its present
amount.). HCA-Healthone is controlling here. In that case, the City of Lone Tree attempted to
levy its existing use tax against all tangible property, despite the fact that voters had only

2
This conclusion applies equally to sales taxes because, [t]he use tax is supplementary to the
sales tax rather than separate from it. Howard Elec. and Mechanical, Inc. v. Department of
Revenue, 771 P.2d 475, 477 (Colo. 1989).
5
approved a use tax on construction and building materials. Id. at 24142. The Court of Appeals
rejected this unilateral attempt to expand the use tax because it would result in new taxes,
requiring voter approval pursuant to TABOR. Id. at 242. Accordingly, the City lacked authority
to levy its use tax on new items, until voters approved an expansion of the tax. Id. at 244.
RTD and SCFD explicitly lacked authority to tax cigarettes prior to the passage of HB13-
1272. RTDs enabling statute grants it the power to levy . . . a sales tax at any rate that may be
approved by the board, upon every transaction or other incident with respect to which a sales tax
is now levied by the state . . . except that: . . . The sale of cigarettes shall be exempt from such
sales tax. C.R.S. 32-9-119(2)(a)(III) (emphasis added). SCFDs enabling statute grants it
the power to levy such uniform sales and use taxes throughout the district . . . upon every
transaction or other incident with respect to which a sales and use tax is levied by the state . . .
except that such sales and use tax shall not be levied the on sale or use of cigarettes . . . .
C.R.S. 32-13-107(1)(a) (emphasis added). HB13-1272 removes these explicit limitations on
RTDs and SCFDs taxing authority, expanding their sales and use taxes and thereby creating
new taxes on cigarettes without voter approval. HCA-Healthone, 197 P.3d at 242.
Moreover, prior to February 2010, the State did not levy sales and use taxes on candy,
soft drinks, advertising materials, or food containers. See C.R.S. 39-26-127; C.R.S. 39-26-
212. The General Assembly made these items subject to the state sales and use taxes in February
2010, but explicitly declined to give taxing authority over these items to any other Colorado
governmentsincluding RTD and SCFD. C.R.S. 39-26-127 (no expansion of local authority
to levy sales tax); C.R.S. 39-26-212 (no expansion of local authority to levy use tax).
Accordingly, RTD and SCFD had no authority to levy taxes on candy, soft drinks, advertising
6
materials, or food containers, until HB13-1272 unlawfully granted that authority. See HB13-
1272, 4 and 5 (amending C.R.S. 39-26-127 and C.R.S. 39-26-212, respectively, to create
or expand RTDs and SCFDs authority to levy sales and use taxes.). This expansion of RTDs
and SCFDs taxing authority creates new taxes without voter approval. HCA-Healthone, 197
P.3d at 242.
HB13-1272 creates new authority for RTD and SCFD to tax food, beverages, cigarettes,
advertising materials, and food containers. Prior to the enactment of HB13-1272, RTD and
SCFD did not have the authority to levy taxes on those items. HB13-1272 grants that authority
by removing explicit statutory limitations on RTDs and SCFDs taxing authority. Accordingly,
the taxes on food, beverages, cigarettes, advertising materials, and food containers that will go
into effect on January 1, 2014, are new taxes, levied without voter approval in direct violation of
TABOR. Colo. Const. art. X, 20(4)(a); HCA-Healthone, 197 P.3d at 242. These taxes must be
enjoined, pending voter approval.
B. HB13-1272 Is A Tax Policy Change Directly Causing A Net Tax Revenue
Gain To RTD And SCFD Without Voter Approval, In Violation Of TABOR.

Even if the taxes created by HB13-1272 were not new taxes, HB13-1272 nevertheless
institutes a tax policy change that directly causes a net tax revenue gain to RTD and SCFD.
Therefore, the HB13-1272 taxes would still require voter approval prior to implementation.
Colo. Const. art. X, 20(4)(a).
The phrase tax policy changes is not defined by TABOR. Huber, 264 P.3d at 892. In
construing the meaning of TABOR, this Court must give effect to the voters intent . . . by
according words found in the constitutional provision their plain, common, and ordinary
meanings. HCA-Healthone, 197 P.3d at 240 (citing Bruce, 129 P.3d at 99293). The Colorado
7
Supreme Court has described a courts duty in TABOR cases as guided by this canon of
construction: [W]here multiple interpretations of [TABOR] are equally supported by the text . .
. a court should choose that interpretation which it concludes would create the greatest restraint
on the growth of government. Bickel v. City of Boulder, 885 P.2d 215, 229 (Colo. 1994).
The Colorado Attorney General has issued several opinions interpreting the meaning of
tax policy change as used in TABOR. Most of these opinions were issued months or a few
years after the passage of TABOR, and are therefore especially useful in understanding voter
intent in passing TABOR. An Attorney Generals Opinion is obviously entitled to respectful
consideration as a contemporaneous interpretation of the law by a governmental official charged
with the responsibility of such interpretation. Colorado Common Cause v. Meyer, 758 P.2d
153, 159 (Colo. 1988) (A courts resolution of an issue of statutory construction, however, must
proceed from an independent analysis of the statutory scheme . . . .).
The Attorney General has concluded that legislative action terminating a tax exemption
would constitute a tax policy change requiring voter approval. Op. Atty Gen. No. 95-02 (Apr.
14, 1995). The Attorney General considered it obvious that a change in a tax structure would be
a tax policy change subject to TABOR:
Of course, a change in the structure itselfthe addition or deletion of a statutory
variable, a change in the method by which rates are computed, or any increase in
the standard or computed rates in the tax tableswould trigger the need for
advance voter approval, assuming a resultant net revenue gain.

Op. Atty Gen. No. 93-03 (Apr. 6, 1993). The Attorney General reiterated this conclusion three
years later:
A change in tax policy occurs when a statutory modification is made to the
standards or rules governing the imposition of a specific tax. For example, a
modification might be made to the subject of a tax, the timing of a tax, or the
8
determination of liability under a tax. If a change does not modify the standards
or rules regarding the imposition of a tax, no tax policy is being changed.

Op. Atty Gen. No. 96-01 (Feb. 27, 1996).
Thus, if the subject of a tax, the standards or rules regarding the imposition of a tax,
or a statutory variable are modified, or if an exemption is eliminated, a tax policy change
occurs. Id.; Op. Atty Gen. No. 93-03; Op. Atty Gen. No. 95-02. If the change results in a net
revenue gain, TABOR requires voter approval before the change can go into effect. Colo. Const.
art. X, 20(4)(a); Huber, 264 P.3d at 886.
As demonstrated above, HB13-1272 indisputably modifies the subject of a tax, the
standards or rules regarding the imposition of a tax, and statutory variables governing a tax by
modifying what items are subject to RTD and SCFD sales and use taxes. The bill also eliminates
tax exemptions. HB13-1272 therefore institutes tax policy changes. Colo. Const. art. X,
20(4)(a).
Because HB13-1272 institutes tax policy changes, those changes require voter approval if
they directly cause a net tax revenue gain to any district. Colo. Const. art. X, 20(4)(a). The
General Assembly was advised by the Legislative Council that both RTD and SCFD would
realize net tax revenue gains of 0.6 percent per year from the HB13-1272 taxes. See Colorado
Legislative Council, Final Fiscal Note Concerning HB13-1272 (July 18, 2013) (attached hereto
as Exhibit 5). RTD echoed the Legislative Council conclusion that HB13-1272 would result in a
net tax revenue gain. See Regional Transportation District, Fiscal Analysis (attached hereto as
Exhibit 6). RTD levies 1.0 percent sales and use taxes; SCFD levies 0.1 percent sales and use
taxes. Compl. 6, 9. If HB13-1272 goes into effect, it will generate approximately $2.7
9
million per year in additional tax revenue for RTD and approximately $270,000 per year in
additional tax revenue for SCFD. Compl. 2326; Exhibit 6.
In dicta, the Colorado Supreme Court has suggested that the language tax policy
change . . . cannot be applied to any policy modifications that may have a de minimis impact on
a districts revenues. Mesa County Bd. of County Comrs v. State, 203 P.3d 519, 529 (Colo.
2009). There is no textual support for such a limitation. See Colo. Const. art. X, 20. The only
metric the Court suggested to define de minimis impact, was a situation where the cost of the
election could exceed the additional revenue obtained. Id. Here, the total impact of HB13-1272
is nearly $3 million per year. Common sense indicates that several million dollars of increased
revenue per year is therefore not a de minimis impact. Indeed, TABOR elections have been
held to seek voter approval for tax revenue increases totaling as little as $700,000 per year. See
HCA-Healthone, 197 P.3d at 329 (Shall City . . . taxes be increased by up to $700,000 annually
. . . .). Several elections have been held to authorize revenue increases of approximately $3
million. See id. at 238 (Shall [the Citys] taxes be increased $3.0 million annually, . . . .);
Cacioppo v. Eagle County School Dist. Re-50J, 92 P.3d 453, 457 (Colo. 2004) (Shall the Eagle
County School District RE50J taxes be increased $3,115,827 annually . . . .). RTD has already
earmarked the increased revenues realized from HB13-1272 to accelerate funding for
numerous FasTracks projects. Exhibit 2. Therefore, HB13-1272 is a tax policy change directly
causing a net tax revenue gain to RTD and SCFD, requiring voter approval prior to
implementation.
3
Colo. Const. art. X, 20(4)(a).

3
Mesa Countys holding with respect to Colo. Const. art. X, 20(4)(a) is that [o]nce a
[TABOR] revenue limit is validly waived, it is unnecessary to require a second election for later
legislation directing the use of the additional funds that a district received as a result of the
10
II. THE REMAINING REQUIREMENTS FOR A PRELIMINARY INJUNCTION
ARE SATISFIED.

Having demonstrated that the TABOR Foundation has a reasonable probability of
success on the merits of its constitutional claim, the remaining preliminary injunction factors
may be easily disposed of: (a) there is a danger of real, immediate, and irreparable injury which
would be prevented by injunctive relief; (b) there is no plain, speedy, and adequate remedy at
law for Defendants constitutional violations; (c) there would be no disservice to the public
interest involved in enforcing the Colorado Constitution; (d) the balance of equities tips in favor
of the injunction; and (e) because the unconstitutional taxes go into effect on January 1, 2014, the
injunction will preserve the status quo pending final resolution on the merits. Gitlitz, 171 P.3d at
1278. In cases where constitutional violations form the basis of the claim for relief, these factors
are essentially encompassed by the analysis of the movants likelihood of success on the
merits. Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Regl Transp., 698 F.3d
885, 890 (6th Cir. 2012) (analyzing preliminary injunction in First Amendment context).
A. There Is A Danger Of Real, Immediate, And Irreparable Injury Which
Would Be Prevented By Injunctive Relief.

The Colorado Supreme Court has long recognized that [e]ven where no direct economic
harm is implicated, a citizen has standing to pursue his or her interest in ensuring that
governmental units conform to the state constitution. Nicholl v. E-470 Public Highway
Authority, 896 P.2d 859, 866 (Colo. 1995) (citing Dodge v. Department of Social Servs., 600

waiver election. Such legislation is not a policy change, but an implementation of the waiver
election. Id. This holding is irrelevant here, since voters have not waived any TABOR revenue
limitations with respect to RTD and SCFD.
11
P.2d 70, 71 (Colo. 1979)). If Defendants are permitted to levy the unconstitutional taxes on
January 1, 2014, they will do irreparable damage to the Colorado Constitution. See Gitlitz, 171
P.3d at 1279 ([A]s a corollary, an injunction is available as equitable relief if there is no legal
remedy that provides full, complete, and adequate relief. An injury may be irreparable,
therefore, where monetary damages are difficult to ascertain or where there exists no certain
pecuniary standard for the measurement of the damages.). The taxes authorized by HB13-1272
violate the Colorado Constitution; accordingly, the TABOR Foundations members will suffer
irreparable injury to their interest in ensuring that governmental units conform to the state
constitution if Defendants are permitted to levy the unconstitutional taxes on January 1, 2014.
Nicholl , 896 P.2d at 866.
B. There Is No Plain, Speedy, And Adequate Remedy At Law For Defendants
Constitutional Violations.

The only plain, speedy, and adequate remedy for Defendants constitutional violations is
equitable relief. The Colorado Supreme Court has held that taxpayers have standing to seek to
enjoin an unlawful expenditure of public funds. Nicholl, 896 P.2d at 866. Indeed, equitable
relief is the only way to ensur[e] that governmental units conform to the state constitution. Id.
Accordingly, the TABOR Foundation has no plain, speedy, and adequate remedy at law.
C. There Would Be No Disservice To The Public Interest Involved In Enforcing
The Colorado Constitution.

The public interest is served by requiring adherence to the Constitution, which is all that
the TABOR Foundation requests here. See Rodriguez v. Robbins, 715 F.3d 1127, 1146 (9th Cir.
2013) (It stands to reason that the public interest also benefits from a preliminary injunction that
ensures that federal statutes are construed and implemented in a manner that avoids serious
12
constitutional questions.); Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005)
(Generally, public interest concerns are implicated when a constitutional right has been
violated, because all citizens have a stake in upholding the Constitution.). Accordingly, the
injunction would serve the public interest.
D. The Balance Of Equities Tips In Favor Of The Injunction Because The
TABOR Foundation Is Likely To Succeed On The Merits.

When a party shows a reasonable probability of success on the merits and that it would
suffer irreparable harm in the absence of the injunction, it follows that the balance of equities
favors the injunction. Cf. Keller Corp. v. Kelley, 187 P.3d 1133, 1137 (Colo. Ct. App. 2008).
Because the TABOR Foundation has shown that it is probable that it will succeed on the merits
and because its members will suffer irreparable harm if the preliminary injunction is not granted,
the balance of equities favors the injunction. Id.
E. The Injunction Will Preserve The Status Quo Because The Unconstitutional
Taxes Do Not Go Into Effect Until January 1, 2014.

The issuance of the injunction will preserve the status quo. Generally, the status quo to
be preserved is the the last peaceable uncontested status existing between the parties before the
dispute developed. O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d
973, 1006 (10th Cir. 2004) affd and remanded sub nom. Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418 (2006); see also Arapahoe Cnty. Pub. Airport Auth.
v. Centennial Express Airlines, Inc., 956 P.2d 587, 598 (Colo. 1998) (Scott, J., concurring);
Sanger v. Dennis, 148 P.3d 404, 419 (Colo. Ct. App. 2006). Here, the last peaceable status
before the dispute was the absence of the HB13-1272 taxes on food, beverages, cigarettes,
advertising materials, and food containers. Because the unconstitutional taxes go into effect on
13
January 1, 2014, the injunction will preserve the status quo pending final resolution on the
merits.
III. THE WAIVER OF BOND IS APPROPRIATE.

The waiver of bond in this case is appropriate because the TABOR Foundation is a non-
profit, public interest organization, defending important constitutional provisions and the
Foundation seeks only to oblige Defendants to comply with existing constitutional requirements.
See Colorado Wild v. U.S. Forest Service, 299 F. Supp. 2d 1184, 1191, n.31 (D. Colo. 2004)
(waiving bond for non-profit group and collecting cases); see also Doe v. Pittsylvania County,
Va., 842 F. Supp. 2d 927, 937 (W.D. Va. 2012); Baca v. Moreno, 936 F. Supp. 719, 738 (C.D.
Cal. 1996).
CONCLUSION

For the foregoing reasons, this Court should enjoin Defendants from collecting the
unconstitutional taxes created by HB13-1272, until such time as voters approve those taxes.
DATED this 24th day of October 2013.
Respectfully submitted,


/s/ James M. Manley
James M. Manley (Reg. No. 40327)
Steven J. Lechner (Reg. No. 19853)
MOUNTAIN STATES LEGAL FOUNDATION
2596 South Lewis Way
Lakewood, Colorado 80227
Telephone: (303) 292-2021
Facsimile: (303) 292-1980
jmanley@mountainstateslegal.com
lechner@mountainstateslegal.com


Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I certify that true and accurate copies of the foregoing document were caused to be served
on Defendants on the 28th day of October 2013, as reflected in the Affidavits of Service filed in
this matter on October 29, 2013. I further certify that on the 29th day of October 2013, the
foregoing document was filed with the Court.


/s/ James M. Manley
James M. Manley




Exhibit 1

DATE FILED: Octobei 29, 2013 6:33 PM
FILING ID: FB73A91CA7704
CASE NUMBER: 2013CV31974
HOUSE BILL 13-1272
BY REPRESENTATIVE(S) Hullinghorst, Fields, Fischer, Kagan, Labuda,
Rosenthal, Williams, Court, Levy, Melton, Moreno, Schafer, Singer, Tyler;
also SENATOR(S) Steadman, Heath, Jones.
CONCERNING THE MODIFICATION OF A SPECIAL DISTRICT'S SALES AND USE
TAX BASE TO MAKE IT THE SAME AS THE STATE'S SALES AND USE TAX
BASE.

Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. Legislative declaration. (1) The general assembly
finds and declares that:
(a) The regional transportation district and the scientific and cultural
facilities district have the same sales and use tax base as the state with
respect to tangible personal property, but the districts and the state have
different exemptions for several types of such property;
(b) This leads to confusion for taxpayers and it is an administrative
burden for vendors who collect and remit the tax to the state; and
(c) Therefore, the intended purpose of the tax expenditures in this
act is to simplify the administration and collection of sales and use tax for
NOTE: This bill has been prepared for the signatures of the appropriate legislative
officers and the Governor. To determine whether the Governor has signed the bill
or taken other action on it, please consult the legislative status sheet, the legislative
history, or the Session Laws.
________
Capital letters indicate new material added to existing statutes; dashes through words indicate
deletions from existing statutes and such material not part of act.
the regional transportation district and the scientific and cultural facilities
district.
SECTION 2. In Colorado Revised Statutes, 32-9-119, amend (2)
(a) as follows:
32-9-119. Additional powers of district. (2) (a) To provide
revenue to finance the operations of the district, to defray the cost of
construction of capital improvements and acquisition of capital equipment,
and to pay the interest and principal on securities of the district, the board,
for and on behalf of the district, after approval by election held pursuant to
articles 1 to 13 of title 1, C.R.S., and, with respect to any tax rate increase
that takes effect on or after March 2, 2009, in accordance with section
32-9-119.3, shall have HAS the power to levy uniformly throughout the
district a sales tax at any rate that may be approved by the board, upon every
transaction or other incident with respect to which a sales tax is now levied
by the state, pursuant to the provisions of article 26 of title 39, C.R.S.
except that:
(I) Such sales tax may be levied on vending machine sales of food
that are otherwise exempt pursuant to section 39-26-714 (2), C.R.S., and on
purchases of machinery or machine tools that are otherwise exempt
pursuant to section 39-26-709 (1), C.R.S.;
(II) The board shall continue to levy a sales tax on the sales of
low-emitting motor vehicles, power sources, or parts used for converting
such power sources as specified in section 39-26-719 (1), C.R.S.;
(III) The sale of cigarettes shall be exempt from such sales tax.
SECTION 3. In Colorado Revised Statutes, 32-13-107, amend (1)
(a) as follows:
32-13-107. Sales and use tax imposed - collection -
administration of tax - use. (1) (a) Except as otherwise provided in
paragraph (b) of this subsection (1), upon the approval of the registered
electors pursuant to the provisions of section 32-13-105, the board shall
have HAS the power to levy such uniform sales and use taxes throughout the
district created in section 32-13-104 upon every transaction or other
incident with respect to which a sales and use tax is levied by the state,
PAGE 2-HOUSE BILL 13-1272
pursuant to the provisions of article 26 of title 39, C.R.S. except that such
sales and use tax shall not be levied the on sale or use of cigarettes and shall
be levied on:
(I) Purchases of machinery or machine tools that are otherwise
exempt pursuant to section 39-26-709 (1), C.R.S., to the extent such sales
and purchases are subject to a sales and use tax levied by the regional
transportation district pursuant to section 29-2-105 (1) (d), C.R.S., on and
after the January 1 following the election in which such sales and use taxes
were approved;
(II) Sales of low-emitting motor vehicles, power sources, or parts
used for converting such power sources as specified in section 39-26-719
(1), C.R.S.; and
(III) Vending machine sales of food that are otherwise exempt
pursuant to section 39-26-714 (2), C.R.S.
SECTION 4. In Colorado Revised Statutes, amend 39-26-127 as
follows:
39-26-127. Legislation modifying the state sales tax base - no
impact on local government sales tax bases - no expansion of local
authority to levy sales tax. (1) Notwithstanding the provisions of section
29-2-105 (1) (d), C.R.S., any provision of title 32, C.R.S., or any other
provision of law, AND EXCEPT AS SET FORTH IN SUBSECTION (3) OF THIS
SECTION, the levying of sales tax on, exemption from sales tax for, or local
option to levy sales tax on or provide an exemption from sales tax for any
tangible personal property or services under the sales tax ordinance or
resolution of any county, municipality, special district, authority, or other
local government or political subdivision of the state shall not be affected
in any way by the elimination, suspension, or modification of any sales tax
exemption or any other legislative modification of the state sales tax base
resulting from the enactment of any of the following bills:
(a) House Bill 10-1189, enacted in 2010;
(b) House Bill 10-1190, enacted in 2010;
(c) House Bill 10-1191, enacted in 2010;
PAGE 3-HOUSE BILL 13-1272
(d) House Bill 10-1194, enacted in 2010;
(e) House Bill 10-1195, enacted in 2010.
(2) EXCEPT AS SET FORTH IN SUBSECTION (3) OF THIS SECTION, this
section does not create or expand, and shall not be construed to create or
expand, any authority of any county, municipality, special district, authority,
or other local government or political subdivision of the state to levy sales
tax.
(3) BEGINNING JANUARY 1, 2014, SUBSECTION (1) OF THIS SECTION
DOES NOT APPLY TO THE REGIONAL TRANSPORTATION DISTRICT ESTABLISHED
BY ARTICLE 9 OF TITLE 32, C.R.S., AND THE SCIENTIFIC AND CULTURAL
FACILITIES DISTRICT ESTABLISHED BY ARTICLE 13 OF TITLE 32, C.R.S.,
WHICH LEVY SALES AND USE TAX UPON EVERY TRANSACTION OR OTHER
INCIDENT WITH RESPECT TO WHICH A SALES AND USE TAX IS LEVIED BY THE
STATE.
SECTION 5. In Colorado Revised Statutes, amend 39-26-212 as
follows:
39-26-212. Legislation modifying the state use tax base - no
impact on local government use tax bases - no expansion of local
authority to levy use tax. (1) Notwithstanding the provisions of section
29-2-105 (1) (d), C.R.S., any provision of title 32, C.R.S., or any other
provision of law, AND EXCEPT AS SET FORTH IN SUBSECTION (3) OF THIS
SECTION, the levying of use tax on, exemption from use tax for, or local
option to levy use tax on or provide an exemption from use tax for any
tangible personal property or services under the use tax ordinance or
resolution of any county, municipality, special district, authority, or other
local government or political subdivision of the state shall not be affected
in any way by the elimination, suspension, or modification of any use tax
exemption or any other legislative modification of the state use tax base
resulting from the enactment of any of the following bills:
(a) House Bill 10-1189, enacted in 2010;
(b) House Bill 10-1190, enacted in 2010;
(c) House Bill 10-1191, enacted in 2010;
PAGE 4-HOUSE BILL 13-1272
(d) House Bill 10-1194, enacted in 2010;
(e) House Bill 10-1195, enacted in 2010.
(2) EXCEPT AS SET FORTH IN SUBSECTION (3) OF THIS SECTION, this
section does not create or expand, and shall not be construed to create or
expand, any authority of any county, municipality, special district, authority,
or other local government or political subdivision of the state to levy use
tax.
(3) BEGINNING JANUARY 1, 2014, SUBSECTION (1) OF THIS SECTION
DOES NOT APPLY TO THE REGIONAL TRANSPORTATION DISTRICT ESTABLISHED
BY ARTICLE 9 OF TITLE 32, C.R.S., AND THE SCIENTIFIC AND CULTURAL
FACILITIES DISTRICT ESTABLISHED BY ARTICLE 13 OF TITLE 32, C.R.S.,
WHICH LEVY SALES AND USE TAX UPON EVERY TRANSACTION OR OTHER
INCIDENT WITH RESPECT TO WHICH A SALES AND USE TAX IS LEVIED BY THE
STATE.
SECTION 6. In Colorado Revised Statutes, 39-26-706, amend as
amended by House Bill 13-1144 (1) (c) as follows:
39-26-706. Miscellaneous sales and use tax exemptions - internet
access - refractory materials - precious metal bullion and coins.
(1) (c) (I) Notwithstanding any provision of law to the contrary, BUT
EXCEPT AS SET FORTH IN SUBPARAGRAPH (II) OF THIS PARAGRAPH (c), for
any local government or political subdivision of the state that levies a sales
or use tax based on the sales or use tax levied by the state pursuant to this
article, the sale or storage, use, or consumption of cigarettes is exempt from
the sales or use tax of such local government or political subdivision.
(II) SUBPARAGRAPH (I) OF THIS PARAGRAPH (c) DOES NOT APPLY TO
THE REGIONAL TRANSPORTATION DISTRICT ESTABLISHED BY ARTICLE 9 OF
TITLE 32, C.R.S., AND THE SCIENTIFIC AND CULTURAL FACILITIES DISTRICT
ESTABLISHED BY ARTICLE 13 OF TITLE 32, C.R.S., WHICH, BEGINNING
JANUARY 1, 2014, LEVY SALES AND USE TAX UPON EVERY TRANSACTION OR
OTHER INCIDENT WITH RESPECT TO WHICH A SALES AND USE TAX IS LEVIED
BY THE STATE.
SECTION 7. Effective date. This act takes effect January 1, 2014.
PAGE 5-HOUSE BILL 13-1272
SECTION 8. Safety clause. The general assembly hereby finds,
determines, and declares that this act is necessary for the immediate
preservation of the public peace, health, and safety.
____________________________ ____________________________
Mark Ferrandino John P. Morse
SPEAKER OF THE HOUSE PRESIDENT OF
OF REPRESENTATIVES THE SENATE
____________________________ ____________________________
Marilyn Eddins Cindi L. Markwell
CHIEF CLERK OF THE HOUSE SECRETARY OF
OF REPRESENTATIVES THE SENATE
APPROVED________________________________________
_________________________________________
John W. Hickenlooper
GOVERNOR OF THE STATE OF COLORADO
PAGE 6-HOUSE BILL 13-1272
10/9/13 www.leg.state.co.us//clics/clics2013a/csl.nsf/billsummary/B338908A6609DFBA87257AD900837616?opendocument
www.leg.state.co.us//clics/clics2013a/csl.nsf/billsummary/B338908A6609DFBA87257AD900837616?opendocument 1/1
Summarized History for Bill Number HB13-1272
(The date the bill passed to the committee of the whole reflects the date the bill passed out of committee.)
03/20/2013 Introduced In House - Assigned to Finance
03/27/2013 House Committee on Finance Refer Amended to House Committee of the Whole
04/02/2013 House Second Reading Passed with Amendments
04/03/2013 House Third Reading Laid Over Daily
04/05/2013 House Third Reading Passed
04/09/2013 Introduced In Senate - Assigned to Finance
04/16/2013 Senate Committee on Finance Refer Unamended to Senate Committee of the Whole
04/19/2013 Senate Second Reading Passed with Amendments
04/22/2013 Senate Third Reading Reconsidered
04/22/2013 Senate Third Reading Passed
04/22/2013 Senate Third Reading Passed
04/24/2013 House Considered Senate Amendments - Result was to Laid Over Daily
04/25/2013 House Considered Senate Amendments - Result was to Laid Over Daily
04/28/2013 House Considered Senate Amendments - Result was to Laid Over Daily
04/29/2013 House Considered Senate Amendments - Result was to Concur - Repass
05/06/2013:57 PM 04:20 Signed by the Speaker of the House
05/06/2013:00 PM 04:10 Signed by the President of the Senate
05/07/2013 Sent to the Governor
05/28/2013 Governor Action - Signed
This information is prepared as an informational service only and should not be relied
upon as an official record of action taken by the Colorado General Assembly.


Exhibit 2

DATE FILED: Octobei 29, 2013 6:33 PM
FILING ID: FB73A91CA7704
CASE NUMBER: 2013CV31974


Exhibit 3


DATE FILED: Octobei 29, 2013 6:33 PM
FILING ID: FB73A91CA7704
CASE NUMBER: 2013CV31974
!"#$ &'()$ '# $*)+",')! -++,*./
-0123 456 4789
8:77 ;<
=0>?@AAB "CDEC10D "?FE?1
-??EGFH -GFCE?I

SCFD Board members present: Chair Kathryn Spuhler, Vice Chair Kathy Kucsan, Treasurer Dan Hopkins,
Secretary Councilwoman Peggy Lehmann, Joseph Arcese, Bob Grant, Shepard Nevel, Kathleen Stapleton,
Elaine D. Torres, Hal Logan and Damon O. Barry

SCFD staff present: Executive Director Peg Long, Program Manager Nancy McCamey, Program Manager Jessica Clare,
Program Associate Erica Barclay, Office Systems Administrator Sheila Mieger

1. Introductions and Approval of Agenda
Kathryn Spuhler called the meeting to order at 1pm followed by introductions. A quorum was present, and the agenda was
approved.

Diana Wilson, City of Lakewood Mayor pro tem, welcomed the Board to the Lakewood Cultural Center. The Center is a
regional hub for local artists and touring acts. It is a venue for many SCFD funded organizations. SCFD dollars are vital to
the Lakewood community stated Diana. Kathy Hodgson, Lakewood City Manager, thanked the SCFD for helping bring
culture and arts to the citizens. Both officials thanked Kathleen Stapleton for the contributions she has made to the City
and the County.

2. Oath of Office
Kathy Kucsan swore in Kathryn Spuhler, Douglas County appointee for a second term. Kathryn Spuhler swore in, Kathy
Kucsan, Boulder County appointee for a second term. Kathryn Spuhler swore in, Elaine D. Torres, gubernatorial
appointee. Elaine made a short introduction, sharing that she is the director of community affairs at News4, lives in Lowry
and has a young son.

3. Approval of February 28, 2013 Board Minutes
Hal Logan motioned to approve the minutes. Kathleen Stapleton seconded. Motion to accept the minutes passed.

4. Reports
4.1 Treasurer
Dan Hopkins reported the January 2013 SCFD sales and use tax revenue was $3,298,645.83. This compares to January
2012 tax revenue of $3,387,812.08. The variance is ($89,166.25). This is a 2.63% decrease in 2013 over month-to-date
(MTD) and year-to-date (YTD) 2012.

4.2 Chairman
Kathryn Spuhler reported that the SCFD Taskforce for Education Programs and Services (STEPS) committee met with
Gully Stanford regarding possible community partnerships. Emily Hall, former SCFD intern, will be presenting on behalf
of STEPS at the Scientific and Cultural Collaborative Inter-tier Arts Education Summit on April 4.
4.3 Executive Director
Peg Long reported the following.
2013 ACH distribution dates are: March 15 (Tiers I & II), June 14 (Tier I), September 16 (Tiers I & II), December
16 (Tiers I & II).

Banking requests for submissions went out to eight PDPA-qualified banks last week. The deadline for
submissions is April 19
th
.

Peg gave each Board member an updated Budget Projection handout. Without an increase in interest rates or the
.75% administrative allocation SCFD will deplete its reserves prior to 2016. The interest rates are not likely to go
up before that time, and if they do, they are not likely to go up by much. Dan Hopkins asked each Board member
to consider ways for SCFD to acquire the administrative funds needed to continue. One option is to go to the
legislature in 2015 asking for the administrative percentage to increase at the time of signing the bill; but still
maintaining the public vote in 2016. This topic will be on the April 11 planning session agenda.

New website and social media update Since the launch of the new website on Feb. 1, the site has had 26,308
visits. The Free Days page is the most visited. 28% of visitors are using mobile devices including tablets. The
average time spent on the website is 1.25 minutes, which is an increase over the old website. The site has seen
high referral traffic from Facebook, Denver Botanic Gardens and Denver March Powwow. Most of the visitors
are from Denver. SCFD currently has 1,808 friends on Facebook and 647 people following on Twitter.

Peg attended a hearing on House Bill 13-1272.
1. Multiplier used by the fiscal analyst is .6% increase, or the equivalent of about $252,000 on $42 million
2. Amended effective date of January 1, 2014 instead of July 1 to eliminate $90,000 DOR fiscal note for printing
and mailing coupon books mid-year
3. Some TABOR concerns expressed re: new taxes on soft drinks, candy & cigarettes (also food in containers)
4. Bill drafter said Mesa County Supreme Court opinion deemed tax increases that are less than the cost of a
TABOR election would be considered de minimis and not in violation of TABOR
5. Majority of committee questions addressed to RTD
6. Lobbyist will request that bill sponsor obtain written confirmation from DOR that SCFD will not be charged
fees for software revisions to align SCFD taxes with the states

Melanie Layton, SCFD lobbyist, reported North Metro Chamber, Denver Chamber and C3 supported the bill.
Colorado beverage association was against it. The bill will go to appropriations next. There is not a fiscal note
attached so it should move through quickly. The amount of money SCFD would net is not and cannot be certain.
Melanie feels the bill will pass regardless of our support, but SCFDs support would be appreciated. Peggy
Lehmann sees SCFD supporting the bill as good government. It makes tax collection easier to understand and
facilitate.

Bob Grant motioned to support and endorse House Bill 13-1272 and direct SCFD lobbyist, Melanie Layton, to act
accordingly at her discretion to communicate the Boards support. Peggy seconded. The Board asked Melanie if
the advantages outweigh the risks. It is not without risk, replied Melanie, but she felt the benefits do outweigh the
risk. Melanie will focus on the new legislators and use this as an opportunity to educate them about what the
SCFD is and its benefits. Peg Long was asked her opinion. She thinks the Board should support it. Dan Hopkins
offered an amendment to Bobs motion in order to facilitate and simplify tax collection and to insure better
accuracy of tax collection. Bob accepted the amendment. All voted in favor.

5. Other Matters
The Board thanked Kathleen Stapleton for six years of service. Kathryn Spuhler read a proclamation honoring Kathleen.

6. Public Comment
Steve Wilson, co-chair of the SCC asked the Board if a bill was brought to the legislature in 2015 would it include all
proposed changes to the statute or just the administrative share. Dan Hopkins replied that he feels the whole bill would
have to be presented but only the administrative change would take place immediately. Steve also asked how the election
cost recovery of $100,000 would be handled. Peg Long said each years recovery from Tier I and II organizations would
occur proportionally over the September, December and March distributions. The funds would be recovered from Tier III
prior to the county allocations in the following year, i.e., 2014. Steve reported Citizens for Arts to Zoo (CATZ) presented
at the last SCC meeting. Kathryn Spuhler asked Steve if this was the first year all Tier Is have been members of the SCC.
Yes, said Steve, although the DCPA has always been a member. Kathryn asked if having them part of the SCC has
changed the organizations budget. He said that currently their budget is set up such that any extra money goes into the
pathways program. Additional funds have allowed for the existence of a marketing budget. Steve said there could be
further changes to the budget structure in the future including some administrative help for Charlotte DArmond Talbert,
coordinator of the SCC.

Kathy Spuhler reported she attended Colorado Ballets dress rehearsal of Light. She strongly recommended people attend
the performance. Marie Belew Whitley, Executive Director of the Colorado Ballet said there were four performances left.
She offered Board discounted tickets.

Malik Robinson and Cleo Parker Robinson of New Dance Theatre dba Cleo Parker Robinson Dance asked the Board if
they could and would be willing to reverse SCFD staffs decision not to accept their Tier III multi-county grant due to it
being incomplete. New Dance had all the information required but, due to an error on the organizations part, the
application did not include all of the required information. After a lengthy discussion, including hearing comments from
County Cultural Council members, the Board thanked Malik and Cleo for all that their organization does for the public.
The board took no action on the request on the grounds that the Board does not have jurisdiction to do so. A determination
of whether a grant application is complete or submitted by the deadline is based on agreed upon county criteria and is a
County Cultural Council decision. All seven councils have formally assigned their authority to enforce grant application
compliance requirements to SCFD Staff. It was confirmed that the organization could still move forward with its grant
application to Denver County. Cleo thanked the Board for considering the request.

7. Adjournment
The meeting was adjourned at 3:40 pm.


________________________________________________
Secretary


Exhibit 4


DATE FILED: Octobei 29, 2013 6:33 PM
FILING ID: FB73A91CA7704
CASE NUMBER: 2013CV31974


Exhibit 5


DATE FILED: Octobei 29, 2013 6:33 PM
FILING ID: FB73A91CA7704
CASE NUMBER: 2013CV31974
HB13-1272
Colorado Legislative Council Staff Fiscal Note
FINAL
FISCAL NOTE
Drafting Number:
Prime Sponsor(s):
LLS 13-0623
Rep. Hullinghorst
Sen. Steadman
Date:
Bill Status:
Fiscal Analyst:
July 18, 2013
Signed into Law
Larson Silbaugh (303-866-4720)
TITLE: CONCERNING THE MODIFICATION OF A SPECIAL DISTRICT'S SALES AND USE
TAX BASE TO MAKE IT THE SAME AS THE STATE'S SALES AND USE TAX BASE.
Fiscal Impact Summary FY 2013-14 FY 2014-15
State Revenue
State Expenditures
General Fund
FTE Position Change
Effective Date: The bill was signed into law by the Governor on May 28, 2013, and takes effect on
July 1, 2014.
Appropriation Summary for FY 2013-2014: See State Appropriations section.
Local Government Impact: See local government impact section.
Summary of Legislation
This bill makes the Regional Transportation District (RTD) and Scientific and Cultural
Facilities District (SCFD) sales and use tax bases identical to the state sales and use tax base.
Background
Currently, some items that are exempt from the RTD and SCFD sales and use tax are taxable
for state purposes, and vice versa. Table 1 shows how the RTD and SCFD sales and use tax base
differs from the state sales and use tax base.
Page 2 HB13-1272
July 18, 2013
Table 1. Differences in State Tax Base and RTD and SCFD Tax Bases
Taxable or Exempt Item
Taxable by State
and Exempt from
RTD and SCFD
Taxable by RTD and
SCFD and Exempt
from State
Candy and Soft Drinks
Cigarettes*
Direct Mail Advertising Materials
Food Containers
Low-emitting Motor Vehicles, Power Sources, and
Related Parts

Machinery or Machine Tools
Vending Machine Sales of Food Excluding Candy
and Soft Drinks

* Under current law, cigarettes will be exempt for sales and use taxes starting July 1, 2013. HB 13-1144 would eliminate the
sales and use tax exemption for cigarettes, and is currently on the House calender for consideration of Senate amendments.
State Revenue
This bill makes the RTD and SCFD tax bases identical to the state sales and use tax base.
Because there is no change to the state sales and use tax base, there is no state revenue impact.
State Expenditures
Each November, the Department of Revenue sends out tax coupon books with instructions
and guidance for common sales tax exemptions. With an effective date of January 1, 2014, the
Department of Revenue can notify taxpayers of the change from this bill through existing business
practices.
Local Government Impact
This bill changes the sales and use tax base for RTD and SCFD by eliminating some
exemptions and adding some others. These changes in the tax base will lead to an estimated net
increase of about 0.6 percent in sales and use tax revenue for RTD and SCFD.
Departments Contacted
Revenue Regional Transportation District


Exhibit 6


DATE FILED: Octobei 29, 2013 6:33 PM
FILING ID: FB73A91CA7704
CASE NUMBER: 2013CV31974
keg|ona| 1ransportat|on D|str|ct 1600 8lake SLreeL
uenver, Colorado 80202-1399
303.628.9000
81u-uenver.com
under exlsLlng leglslaLlon, Lhe sLaLe of Colorado has some lLems whlch are exempL from sLaLe sales and
use LaxaLlon whlle noL belng exempL from LaxaLlon by Lhe 8eglonal 1ransporLaLlon ulsLrlcL (81u) and
vlce versa. 1hese dlfferlng Lax bases cause confuslon and addlLlonal admlnlsLraLlve burdens on reLallers
flllng Lax remlLLances and Lhe ueparLmenL of 8evenue, whlle also prevenLlng 81u from parLlclpaLlng
ln sLaLewlde Lax revenue enhancemenL efforLs durlng economlc downLurns. LeglslaLlon has been
lnLroduced by 81u Lo brlng parlLy of sales and use Lax exempLlons beLween Lhe sLaLe and speclal
dlsLrlcLs, lncludlng 81u. 1hls parlLy of sales and use Lax exempLlons should reduce paperwork for Lhe
vendors ln Lhelr calculaLlon of Laxes Lo be remlLLed.
1he followlng flscal analysls dlsplays Lhe esLlmaLed annual lmpacL Lo 81u of Lhls proposed leglslaLlon:
Tax
Estimated
Annual Impact
to RTD
(In Millions)
Cigarette 5.2 $
Candy and Soda 3.1
Food Containers 0.4
Machinery & Machine Tools (5.8)
Food sold through vending machines (0.2)
Low Emitting Vehicles -
Total 2.7 $
clqotette 1oxes - 81u does noL currenLly parLlclpaLe ln Lhe collecLlon of sales Laxes on clgareLLe producLs
whlle Lhe sLaLe does. 1he annual amounL of $3.2 mllllon esLlmaLed Lo noL have been collecLed by 81u ls
derlved by 81u's populaLlon relaLlve Lo sLaLewlde populaLlon and applled Lo annual sLaLewlde clgareLLe
Laxes collecLed.
cooJy ooJ 5oJo - 81u does noL currenLly parLlclpaLe ln Lhe collecLlon of sales Laxes on candy and soda
producLs whlle Lhe sLaLe does. 1he annual amounL of $3.1 mllllon esLlmaLed Lo noL have been collecLed
by 81u ls derlved by 81u's populaLlon relaLlve Lo sLaLewlde populaLlon and applled Lo annual sLaLewlde
candy and soda Laxes collecLed.
looJ cootoloets - 81u does noL currenLly parLlclpaLe ln Lhe collecLlon of sales Laxes on food conLalners
whlle Lhe sLaLe does. 1he annual amounL of $0.4 mllllon esLlmaLed Lo noL have been collecLed by 81u
ls derlved by 81u's populaLlon relaLlve Lo sLaLewlde populaLlon and applled Lo annual sLaLewlde food
conLalner Laxes collecLed.
Mocbloety & Mocbloe 1ools - 81u currenLly parLlclpaLes ln Lhe collecLlon of sales and use Laxes on
machlnery and machlne Lools as deflned under u81191 whlle Lhe sLaLe does noL. 1he annual amounL
An Lqual CpporLunlLy / AfflrmaLlve AcLlon Lmployer
of $3.8 mllllon LhaL was esLlmaLed Lo have been collecLed by 81u ln 2012 would no longer be collecLed
by 81u under Lhe proposed leglslaLlon. 1hls amounL was derlved from Lhe use Laxes collecLed by 81u ln
2012 as reporLed by Lhe ueparLmenL of 8evenue under Lhe Mooofoctotloq caLegory. 81u ls uslng use
Laxes from manufacLurlng only, due Lo Lhe absence of oLher lnformaLlon, ln lLs assumpLlon LhaL Lhere ls
very llLLle, lf any, sales of machlnery and machlne Lools quallfylng under u81191 ln lLs dlsLrlcL.
looJ solJ tbtooqb veoJloq mocbloes - 81u currenLly parLlclpaLes ln Lhe collecLlon of sales Laxes on food
sold Lhrough vendlng machlnes whlle Lhe sLaLe does noL. 1he annual amounL of $0.2 mllllon LhaL was
collecLed by 81u ln 2012 would no longer be collecLed by 81u should lLs exempLlons be broughL lnLo
parlLy wlLh Lhe sLaLe under Lhe proposed leglslaLlon.
low mlttloq veblcles - 81u currenLly parLlclpaLes ln Lhe collecLlon of sales and use Laxes on low
emlLLlng vehlcles whlle Lhe sLaLe does noL. 81u belleves LhaL any Laxes collecLed for low emlLLlng
vehlcles, whlch musL be over 10,000 pounds Lo quallfy, are lmmaLerlal.
An Lqual CpporLunlLy / AfflrmaLlve AcLlon Lmployer