Roxy HUBER, in her capacity as Executive Director of the Department of Revenue, State of Colorado; the Colorado Department of Revenue; and the State of Colorado, Petitioners v. COLORADO MINING ASSOCIATION; Twentymile Coal Company; Mountain Coal Company, LLC; Colowyo Coal Company, L.P.; Oxbow Mining, LLC; Trapper Mining, Inc.; and Bowie Resources, LLC., Respondents.
No. 10SC220.
Supreme Court of Colorado, En Banc.
Oct. 31, 2011.
264 P.3d 884
Moye White LLP, Paul M. Seby, Marian C. Larsen, Denver, Colorado, Attorneys for Respondents.
Featherstone Petrie DeSisto LLP, Matthew A. Morr, Denver, Colorado, Attorneys for Amici Curiae Colorado Association of Commerce and Industry; Denver Metro Chamber of Commerce.
Rothgerber Johnson & Lyons LLP, Thomas J. Dougherty, Denver, Colorado, Attorneys for Amicus Curiae Tri-State Generation and Transmission Association, Inc.
1. The issue presented for review is:
Whether application of a statutory provision enacted before the adoption of the Colorado Taxpayer‘s Bill of Rights,
Colo. Const. art. X, § 20 , which increases taxes based on an inflation adjustment factor tethered to an external economic index, amounts to a tax rate increase requiring statewide voter approval.
Justice HOBBS delivered the Opinion of the Court.
We granted certiorari in this case to review the court of appeals’ decision in Colorado Mining Ass‘n v. Huber, 240 P.3d 453 (Colo.App.2010).1 The court of appeals ruled that
Adopted by the General Assembly in 1988, the statute establishes a tax with a tax rate that has two components to calculate the amount of tax owed: (1) a base rate of thirty-six cents per ton of coal extracted and (2) a quarterly one percent increase or decrease to the base rate based on changes to the index of producers’ prices prepared by the United States Department of Labor.
Effective November 4, 1992, following its approval by voters in the 1992 general election, section (4)(a) of Amendment 1 requires governmental entities to obtain voter approval before imposing “any new tax, tax rate increase, mill levy above that for the prior year, valuation for assessment ratio increase for a property class, or extension of an expiring tax, or a tax policy change directly causing a net tax revenue gain to any district.” Accordingly, Amendment 1 places a check by the electorate on the exercise of legislative taxing power. See Barber v. Ritter, 196 P.3d 238, 247 (Colo.2008); Bickel v. City of Boulder, 885 P.2d 215, 226 (Colo.1994).
After Amendment 1 went into effect, the Department suspended employing the mechanism set forth in
The Colorado Mining Association and taxpayer coal companies (collectively, “Colorado Mining“) filed an action challenging collection of the $0.76 per ton amount. Colorado Mining asserts that, whenever the Department calculates an upward adjustment in the amount of tax due under the statute, it must obtain voter approval. The court of appeals agreed. We disagree.
We hold that
I.
In 1977, the Colorado General Assembly enacted a severance tax on various minerals removed from lands in Colorado. Colorado‘s severance tax is intended to recapture a portion of the State‘s wealth that is irretrievably lost when nonrenewable natural resources are extracted from Colorado soils and sold for private profit. See
Subsections (1) and (5) function together to establish the coal severance tax rate, which the General Assembly enacted prior to the passage of Amendment 1:
(1) In addition to any other tax, there shall be levied, collected, and paid for each taxable year a tax upon the severance of all coal in this state. Such tax shall be levied against every person engaged in the severance of coal. Subject to the exemption and credits authorized in subsections (2), (3), and (4) of this section, the rate of the tax shall be thirty-six cents per ton of coal.
. . . .
(5) For every full one and one-half percent change in the index of producers’ prices for all commodities prepared by the bureau of labor statistics of the United States department of labor, the tax rate provided in subsection (1) of this section shall be increased or decreased one percent. The executive director shall determine such adjust-
ments to the rate of tax based upon changes in the index of producers’ prices from the level of such index as of January, 1978, to the level of such index as of the last month of the quarter immediately preceding the quarter for which any taxes are due.
At the time Colorado voters adopted Amendment 1 in 1992, the Department was collecting a tax of $0.54 per ton of extracted coal pursuant to the statute. After passage of the amendment, the Department‘s then-Executive Director issued a memo halting “further increases or upward revisions” of the coal severance tax rate “until further notice.” The Department took no formal steps until 2006 to resolve the issue of how or whether Amendment 1 affected the implementation of In 2006, the State Auditor‘s office conducted a review of the Department‘s activities related to determining and collecting all severance taxes owed to the State. The Auditor questioned the Department‘s failure to collect coal severance taxes as required by To require a vote each time the statutory formula requires an upward adjustment would be to render the statute a nullity. . . . . . . . Going forward, the Department should apply the plain language of the statute and calculate the current coal tax rate using the increase or decrease in the index of producers’ prices based on the level of the index as of January, 1978. Following the Attorney General‘s opinion, the Department issued a notice of proposed rulemaking that resulted in a rule that tracks the language of the statute.4 The Department then calculated a tax of $0.76 per ton of coal extracted, and Colorado Mining filed its action to prohibit the adjustment in the absence of statewide voter approval. Finding no issues of material fact to be tried, the trial court, on cross-motions for summary judgment, ruled that the Depart- In sum, because the formula in The court of appeals reversed. It reasoned that because the implementation of the 1988 formula caused the amount of severance tax due to rise, voter approval must be obtained before the tax can be collected. Huber, 240 P.3d at 454-55. We disagree. We hold that A trial court may enter summary judgment when there is no disputed issue of material fact and the moving party is entitled to judgment as a matter of law. McIntyre v. Bd. of Cnty. Comm‘rs, 86 P.3d 402, 406 (Colo.2004). We review de novo a trial court‘s grant of summary judgment. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo.2004). In construing a statute, we strive to give effect to the intent of the legislature and adopt the construction that best carries out the provisions and purposes of the act. Thomas v. F.D.I.C., 255 P.3d 1073, 1077 (Colo.2011); Spahmer v. Gullette, 113 P.3d 158, 162 (Colo.2005). We first look to the language of the statute to determine the legislature‘s intent. Thomas, 255 P.3d at 1077. In construing a constitutional amendment, our goal is to determine and give effect to the will of the people in adopting the measure. Bruce v. City of Colo. Springs, 129 P.3d 988, 992-93 (Colo.2006). We use the general rules of statutory construction in construing citizen-initiated measures. Id. at 993. We avoid interpretations that lead to unjust, absurd, or unreasonable results. Bickel, 885 P.2d at 229. We presume legislative enactments, whether by the General Assembly or the electorate through initiative or referendum, to be constitutional. Overcoming this presumption requires a showing of unconstitutionality beyond reasonable doubt. Barber, 196 P.3d at 247. Such a high burden acknowledges that declaring a statute or a constitutional amendment to be unconstitutional is one of the gravest duties impressed upon the courts. Mesa Cnty. Bd. of Cnty. Comm‘rs v. State, 203 P.3d 519, 527 (Colo.2009); City of Greenwood Vill. v. Petitioners for the Proposed City of Centennial, 3 P.3d 427, 440 (Colo.2000); cf. Evans v. Romer, 854 P.2d 1270, 1286 (Colo.1993) (holding a state constitutional amendment invalid under the federal Constitution). Our presumption of a statute‘s constitutionality is based on the deference we must afford the legislature in its law making duties. Mesa Cnty. Bd. of Cnty. Comm‘rs, 203 P.3d at 527. As with any potential conflict between legislative provisions, we endeavor to give effect to the language and intent of both if possible; if two constructions are possible—one constitutional, the other unconstitutional—we choose the construction that avoids reaching the constitutional issue. Colo. Dep‘t of Labor & Emp‘t v. Esser, 30 P.3d 189, 194 (Colo.2001). Unless the terms of a constitutional amendment clearly show the intent that it be applied retroactively, we presume the amendment has prospective application only. Jackson v. State, 966 P.2d 1046, 1052 The Colorado General Assembly has plenary discretionary authority to levy, assess, and collect taxes. The Department is the agency generally assigned the duty of administering and enforcing tax laws that have statewide effect. Under Because the Department implements regulations to carry out the will and policy of the legislature expressed through tax statutes, it has no power to impose a new tax or to set tax policy. See Cohen v. State Dep‘t of Revenue, 197 Colo. 385, 390, 593 P.2d 957, 961 (1979); Weed v. Occhiato, 175 Colo. 509, 511, 488 P.2d 877, 879 (1971) (“If a change in the law is desired, it must be accomplished by the General Assembly, for neither the Director of Revenue nor this Court is empowered with taxing authority.“). Exercise of the General Assembly‘s discretionary taxing power is subject to limits prescribed by the Colorado Constitution. Parsons v. People, 32 Colo. 221, 235, 76 P. 666, 670 (1904) (“[E]xcept as inhibited by the Constitution, the legislative department of government has the unlimited power of taxation, not only as to the subjects of taxation, but also as to the rate.“). Section 4(a) of Amendment 1 is one such limit. Section 4(a) requires a governmental entity to have voter approval in advance for “any new tax, tax rate increase, ... or a tax policy change directly causing a net tax revenue gain.” Amendment 1 is contained within the constitutional provisions of article X relating to the General Assembly‘s taxing powers. Its purpose is to “protect citizens from unwarranted tax increases” and to allow citizens to approve or disapprove the imposition of new tax burdens. In re Submission of Interrogatories on Senate Bill 93-74, 852 P.2d 1, 4 (Colo.1993). Amendment 1 did not repeal pre-existing tax statutes that include a tax rate provision for adjusting the amount of tax due. Instead, anticipating that pre-existing tax statutes might operate to bring in increasing amounts of revenue, Amendment 1 included article X, section 20(7), which imposes spending limits that require a refund of taxes collected unless retention of the excess revenue is voter-approved. Havens v. Bd. of Cnty. Comm‘rs, 924 P.2d 517, 522 (Colo.1996). Accordingly, the voter- In Bolt, a school district exercised its authority to increase two mill levy rates and add a third to the total mill levied on property in the district. 898 P.2d at 527-30. The increase was approved by the District before Amendment 1, but the board of county commissioners issued its order approving the increase in 1993, after passage of Amendment 1. Id. Although the increase became effective after the passage of Amendment 1 and was not voted on by the district‘s electors, we held that implementing the increase did not violate Amendment 1. Id. at 537 (“We find that the [tax] is not subject to the voter-approval provision of [section 4(a)] because the [tax] was effectively imposed prior to the effective date of that provision.“). Further, we held that the commissioners’ post-Amendment 1 order to implement the mill levy increase was a “purely ministerial act” because the board of commissioners had “no authority to modify the school district‘s mill levy or to refuse to impose it.” Id. at 538. Our holding in Bolt is consistent with previous enunciations of Amendment 1‘s language, intent, and purpose. In Campbell v. Orchard Mesa Irrigation District, 972 P.2d 1037, 1039 (Colo.1998) (emphasis added), we held that “Amendment 1‘s objective is to prevent governmental entities from enacting taxing and spending increases above Amendment 1‘s limits without voter approval.” Similarly, we have held that Amendment 1‘s prospective effect is intended “to limit the discretion of government officials to take certain taxing, revenue and spending actions in the absence of voter approval.” Havens, 924 P.2d at 522 (emphasis omitted). Thus, we construe section (4)(a) of Amendment 1 as vesting with the voters the authority to approve or disapprove actions of legislative bodies that enact new taxes, tax rate increases or tax policy changes directly causing a net tax revenue gain. In re Interrogatories on Senate Bill 93-74, 852 P.2d at 4. The ministerial, non-discretionary implementation of a tax law passed in the exercise of legislative authority prior to November 4, 1992 does not require voter approval, even if such implementation occurs after Amendment 1‘s effective date of November 4, 1992. Bolt, 898 P.2d at 533-34. Enacted in 1988, Because the limitations of Amendment 1 apply only to discretionary action taken by legislative bodies, the Department‘s implementation of the formula and collection of the tax does not require voter approval. Like the commissioners in Bolt, the Department has no tax making or tax policy change authority. It cannot modify the coal severance tax statutory mechanism or refuse to implement it. See Bolt, 898 P.2d at 538. We recognize the difference between the mill levy in Bolt and the coal severance tax here: the mill levy tax was a onetime event which did not contain a mechanism to continuously adjust the tax amount due after November 4, 1992. However, we do not find this distinction meaningful. Like the tax at issue in Bolt, adjustments to the coal severance tax rate are a non-discretionary, ministerial duty of the Department, and involve no legislative or governmental act beyond that specified in the statute. The rule the Department adopted in 2007 following a fifteen-year hiatus in implementation of the statute merely parallels and enforces the statute. We must adopt a construction that avoids or resolves potential conflicts, giving effect to all legislative acts, if possible. See Havens, 924 P.2d at 522; Bolt, 898 P.2d at 533; Esser, 30 P.3d at 194. Because it is prospective in application, Amendment 1‘s requirement of voter approval set forth in article X, section 20(4)(a) does not conflict with or supersede the coal severance tax provisions of Colorado Mining argues that any increase in the amount of tax due resulting from the Department‘s implementation of The terms “tax” and “tax rate” contained in Amendment 1 are not specifically defined. Taxing statutes can take many forms. They can include a formula for periodically adjusting the amount of tax due. One definition of “tax rate” is “[a] mathematical figure for calculating a tax, usu[ally] expressed as a percentage.” Black‘s Law Dictionary 1601 (9th ed. 2009). A tax rate can be expressed as a fixed numerical amount, a fixed percentage, or a mathematical formula with pre-set objective components for calculating the amount of tax due. Colorado‘s severance tax statutes on extracted mineral resources include each of these three possible incarnations of a “tax rate.” For example, the tax rate on all metallic minerals mined in the state takes the form of a fixed percentage: 2.25 percent of the extractor‘s gross revenue for revenue exceeding $19,000,000. In addition, several of Colorado‘s tax statutes include rates expressed as formulas providing for the amount of tax due to fluctuate in response to economic conditions or other external factors. Absent a new amendment by the General Assembly, the statute‘s tax rate mechanism remains the same. For example, the unemployment insurance tax statute includes a tax rate adjustment formula. Construing The Department‘s duties are plainly non-discretionary under the statute. The Department has no taxing or tax policy-making authority. For fifteen years, the Department failed to enforce its legislative mandate to apply the formula and collect the tax due. The Department‘s correction of this incorrect practice occurred after a deliberate analysis undertaken through a state audit, an Attorney General‘s opinion, and a rulemaking proceeding affording Colorado Mining and other interested persons the opportunity for public comment. Each of these steps resulted in the conclusion that Amendment 1 does not require the Department to obtain voter approval each time it adjusts the amount of coal severance tax due applying Accordingly, we reverse the judgment of the court of appeals and reinstate the trial court‘s judgment. Justice COATS dissents, and Justice EID joins in the dissent. Justice MARQUEZ does not participate. Justice COATS, dissenting. Unlike the majority, I believe that in the absence of voter approval the Taxpayer Bill of Rights Amendment to the Colorado Constitution bars the continuous tax rate increases mandated by There can really be no question that TABOR bars increases in tax rates without advance voter approval or that changing the rate at which extracted coal is taxed from fifty-four cents per ton to seventy-six cents per ton is a tax rate increase. The term “rate” standing alone could of course be understood to apply to virtually any price or value, as in the going “rate” for something, but more typically it describes a ratio or relation between two things, like a charge, payment, or price fixed according to a ratio, scale, or standard. See generally Webster‘s It simply strains credulity beyond the breaking point to assert, as does the majority, that raising the tax on every ton of extracted coal from fifty-four to seventy-six cents is not a tax rate increase, and instead that the tax rate contemplated by TABOR is the broader legislative prescription requiring periodic increases, in perpetuity, in the dollar amount assessed per ton of coal. As best I can understand it, the majority reasons that the department lacks the authority to increase the tax rate and therefore “the amount of the tax” is merely “adjusted” by the department according to the legislature‘s prescription; that the mechanism or formula for periodic increases is actually the “tax rate” to which TABOR refers; and that the limitations of TABOR do not apply to this statutory mechanism, or tax rate, at all because TABOR applies only prospectively and While many of the propositions of law advanced by the majority in support of this syllogism are not in themselves wrong, I consider them largely red herrings, which in no way resolve the legality of taxing extracted coal at more than the fifty-four cents per ton tax rate in existence on the date after which TABOR requires voter approval. There has never been the remotest suggestion that TABOR applies retroactively to tax rate increases occurring before its adoption, and clearly no such rate increase is at issue in this case. The only increases at issue are increases over and above the tax rate in existence at the time TABOR was approved. And while I consider the majority‘s strenuous attempt to distinguish the “imposition” of a tax from its “implementation” as bordering on the hyper-technical, I fully agree that the department lacks the authority to alter the tax rate on extracted coal except as permitted by statute and that no statute purports to grant the department discretion in that regard. I strongly disagree, however, with any suggestion that the department is authorized, much less obligated, to continue to implement the tax rate increases prescribed by Although repeal by implication is disfavored as a matter of statutory construction, Chism v. People, 80 P.3d 293, 295 (Colo. 2003), even in the statutory context an earlier statute is held to be implicitly repealed by a later statute evidencing a clear and manifest intent to do so, People v. Burke, 185 Colo. 19, 521 P.2d 783 (1974). Similarly, we have found existing statutes to continue in force subsequent to the adoption of an amendment to the state constitution unless they are inconsistent with that constitutional amendment. See, e.g., People ex rel. Union Trust Co. v. Superior Court, 175 Colo. 391, 488 P.2d 66 (1971). The general proposition that prohibitive and restrictive provisions in a constitutional amendment are self-executing and all statutes then existing or which may thereafter be passed inconsistent with such provisions are null and void, is too well- Not only is TABOR a constitutional provision to which legislative acts are subservient, rather than merely another statute itself, but its intent to limit the legislative taxing power by subjecting it directly to popular approval, see Bickel v. City of Boulder, 885 P.2d at 226, and to “supersede” all conflicting state statutes could not be more clear, see While the majority appears to acknowledge that TABOR certainly could supersede previously enacted legislative measures, see maj. op. at 891, it concludes that TABOR “did not repeal pre-existing tax statutes that include a tax rate provision for adjusting the amount of tax due.” Id. at 891. Rather than all tax rate increases actually imposed after November 4, 1992, the majority broadly concludes that “the voter-approval requirements of section 4(a) apply only to new taxes, tax rate increases, and tax policy changes adopted by legislative bodies after November 4, 1992.” Id. at 891 (emphasis added). For this proposition, the majority relies largely on two prior decisions of this court, which do not even address, much less support, the majority‘s proposition. The majority relies on Bickel v. City of Boulder, 885 P.2d at 226, for the proposition that TABOR provides a check only on the adoption of new tax legislation before it can go into effect. Maj. op. at 890. Bickel, however, did not speak to the question of new versus pre-existing tax legislation at all and, in fact, stands for virtually the opposite proposition. Rather than creating a new fundamental right in the citizens of the state, we held in Bickel that TABOR was intended as a “limitation on the power of the legislature.” 885 P.2d at 226. Similarly, in Bolt v. Arapahoe County School District No. Six, 898 P.2d 525 (Colo. 1995), we in no way suggested that an existing statute prescribing tax rate increases to take effect periodically after November 4, 1992 does not conflict with TABOR simply because the implementing body lacks discretion in the matter. Rather, we held only that the mill levy at issue in that case was not subject to the voter-approval requirements of TABOR because it had actually been imposed and was already in existence prior to the adoption of TABOR. Largely because any further action required of the County Commissioners would be ministerial in nature, we found that the new mill levy was effectively imposed when the Board of Education adopted a budget including expenditures to be funded by it. Although even that holding was not beyond dispute, see id. at 540-42 (Scott, J., concurring in part and dissenting in part), it did not involve tax rate increases or the enactment of legislation at all, much less imply that a future tax rate increase must be considered to have been imposed for purposes of TABOR when the legislation mandating it was enacted. In Bolt we therefore found that a mill levy already in existence on November 4, 1992 could not be a “mill levy above that for the prior year,” within the contemplation of TABOR. Id. at 540. Not even the state suggests that a tax rate of seventy-six cents per ton was in existence on November 4, 1992. That tax rate clearly represents an increase over the rate of fifty-four cents per ton in The only textual argument advanced by the majority for the proposition that TABOR applies “only to new taxes, tax rate increases, and tax policy changes adopted by legislative bodies after November 4, 1992,” maj. op. at 891, is that TABOR‘s separate provision for the refund, in the absence of voter approval to do otherwise, of revenue from sources not excluded from fiscal year spending that exceeds TABOR‘s spending limits necessarily contemplates that “pre-existing tax statutes might operate to bring in increasing amounts of revenue.” Id. at 890. At the risk of exposing my own inability to follow this reasoning, I note only that TABOR purports to limit spending and revenue quite apart from requiring voter approval of tax rate increases, and there are many sources of revenue apart from tax rate increases. To the extent the majority intends that the purpose of TABOR is only to protect citizens from “unwarranted” tax increases and that future tax rate increases enacted prior to November 4, 1992 are not “unwarranted,” it simply ignores the express limitations of the amendment. I am aware of nothing in either the language or history of the amendment that can be construed to create an exception for future tax rate increases merely because they were ordered by legislative enactment occurring before TABOR was approved. I fail to understand how statutes like I therefore respectfully dissent. I am authorized to state that Justice EID joins in this dissent.
II.
A. Standard of Review
B. Amendment 1 is Prospective in Application
C. Application to this Case
III.