Well this story's off to a good start. "School tax hikes OK." What tax hikes? Nobody's taxes are going up. In school districts where voters decided the district should keep the revenue it gets from its existing tax rate, district will keep the revenue. In fact, while no one's tax rate is going up, in some districts the tax rate is going down.
The headline is more like a political sound bite than the start of a news story.
By Berny Morson, Rocky Mountain News, Ed Sealover, Rocky Mountain News
A law that funnels more tax money to schools is still in force for now, allowing local school districts to raise taxes in 2009, the state Supreme Court said Friday.
What district is raising taxes? In a lot of districts taxes won't to down, but not cutting taxes isn't the same as raising them. And in each case the voters in the district voted to let the district keep the money.
But the court refused to say whether the law is constitutional, and it gave no hint when that decision will come.
The 2007 law would raise an estimated $1.7 billion for schools over 11 years by blocking a scheduled decline in property taxes.
Opponents filed suit, saying it's an unconstitutional tax increase because it wasn't approved by voters under Colorado's Taxpayer's Bill of Rights.
Except that it was approved by voters under Colorado's Taxpayer's Bill of Rights. And it only applies to districts where voters approved it. If the Rocky really doesn't understand this, I with it would explain why it doesn't apply to districts where voters didn't approve a TABOR exemption.
In a two-page order, the judges lifted an injunction by Denver District Judge Christina Habas, who held the law unconstitutional. The unsigned Supreme Court order allows the 178 school districts to set tax rates, which are due at the state education department by Dec. 15.
The education department earlier this week asked the court to rule in the case by Friday so the school districts could meet the deadline. The court heard oral arguments in September.
The law is backed by Gov. Bill Ritter and most Democrats in the legislature.
Most Republican lawmakers oppose it.
Both sides warned against viewing the Friday order as hinting at which way the court will rule.
Evan Dreyer, Ritter's spokesman, said, "This is a very specific, very narrow order.
"We're not reading the tea leaves at all," said Education Department spokesman Mark Stevens.
Richard Westfall, the attorney for groups and individuals who brought the suit, said that if the judges had wanted to rule on the constitutional issue, they would have done so.
"It seems to me they have not yet decided it," Westfall said.
This is possible. I misunderstood where the Court was in the process. I thought the Court was very close to issuing its opinion, but just hadn't finished the formal document. In that case, it would make sense to let the districts certify their mill levies one way or the other - either using the formula under the new rule (if the law is constitutional) or under the old rule (if it's unconstitutional).
If the court is actually a long way from handing down its opinion, then I guess it could let the school districts certify their mill levies either way and sort everything out later.
The order itself says the court, in lifting the lower court injunction, intended to "preserve the status quo as it existed under (the 2007 law) until this court issues its final decision in this matter."
But several lawmakers read the order as upholding the law.
Rep. Jack Pommer, D-Boulder, said the court wouldn't tell school districts to set tax rates one way, then tell them to do something different in a few weeks.
I didn't say they wouldn't do that, I said I didn't think they would do that. Notwithstanding my last comment, it does seem like there would be better alternatives than having districts certify a mill levy that's not going to stand. Maybe the court could have pushed back the certification date.
"It just seems like an odd thing to do," he said. Pommer was the main House sponsor of the 2007 law.
Pommer, the vice chairman of the Joint Budget Committee, said the order makes it likely the Legislature will have more money to work with next year.
When districts get less money from local taxes, the state has to give them more money from state coffers. If the Court rules the law unconstitutional, the state will probably have to give more money to schools. That means less money for other state services. I guess the like is accurate, but it's sort of the reverse of what I said.
The reporter asked me if we were cutting money out of the budget so we could give it to districts if the Court ruled against the 2007 law. I said "no," because we almost always work according to current law. The 2007 law is current, since the Court hasn't ruled it unconstitutional.
We work according to current law because it's the the most practical thing to do. A lot of people sue the state for a lot of reasons. We would have a hard time doing anything if we acted as though all of those people were doing to win in court.
But, he added, "It's not like it's a total relief. It could be a cruel joke."
Sen. Josh Penry, R-Fruita, a vocal opponent of the 2007 law, said the order demonstrates the court's partisan bias.
"I've always assumed that this court would place its loyalty to the Democratic governor ahead of its fidelity to the constitution," Penry said. "This Supreme Court is the most partisan branch of government in Colorado."
Or maybe the Court hasn't decided. Or maybe the law is just constitutional. Keep in mind, conservatives spend most of their time calling courts "activist." They usually say that when courts overturn something the legislative branch has approved. Or approve something the legislative branch has denied. Conservatives call that "activist" because the court is putting its opinion in place of the "will of the people" as expressed by representatives they elected to the legislature (or Congress).
In this case, if the Court rules the law is constitutional, it will be letting the will of the people, as expressed by their elected representatives, stand. If the Court rules the law unconstitutional, it will be "activist" by "legislating from the bench" and replacing a duly passed law with its own opinion.
That puts conservatives in an awkward spot. If they win this case, they'll have to applaud the court for being activist. It they lose, they'll have to attack the court for failing to be activist.
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