Reply in Support of MSJ

8/6/2019 Reply in Support of MSJ

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DISTRICT COURT, CITY AND COUNTY OF DENVER,COLORADO

1437 Bannock StreetDenver, CO 80202

DOUGLAS BRUCE,

Plaintiff,

v.

STATE OF COLORADO and GOVERNOR JOHNHICKENLOOPER, in his official capacity,

Defendants. COURT USE ONLYJOHN W. SUTHERS, Attorney GeneralMAURICE G. KNAIZER, Deputy Attorney General*Registration No.: 5264

Email:[email protected] D. GROVE, Assistant Attorney General*Registration No.: 34269Email:[email protected] Sherman Street, 7

thFloor

Denver, CO 80203Telephone: 303-866-5264

*Counsel of Record

Case No. 10CV2425

DEFENDANTS REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Defendants John Hickenlooper, in his official capacity as Governor of the State of

Colorado, and the State of Colorado, submit the following Reply in support of their

motion for summary judgment.

REPLY REGARDING ASSERTIONS OF UNDISPUTED FACT

Rather than offering evidence to counter the Defendants assertions of material

fact, Bruce simply asserts that Plaintiff disputes them, and then proceeds to attack their

relevance and materiality. Resp. Br. at 1. Bruce cannot demonstrate that a dispute exists,
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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however, by merely stating that he disagrees with the facts presented. See Briggs v.

American Nat. Prop. and Casualty Co., 209 P.3d 1181, 1185 (Colo. App. 2009) (once

the moving party makes a convincing showing that there are no genuine issues of

material fact, the opposing party must demonstrate with relevant and specific facts

Bruces response, on the other hand, is replete with assertions of fact that, because

they are unsupported by evidence, are not entitled to consideration by this Court. Most

important is Bruces ongoing attempt to inject his own personal views about the meaning

of TABOR. For instance, Bruce claims that the emergency reserve was inserted to

address the opposition argument that requiring voter approval in November of a tax

increase would risk the state not having MONEY to spend on intervening emergencies.

Resp. Br. at 3. Even if this bald assertion were supported by competent evidence when

in fact, it is not supported by any evidence at all it would be irrelevant. See Submission

of Interrogatories on Senate Bill 93-74, 852 P.2d 1, 8 n.7 (Colo. 1993) (declining to

considerBrucespost hoc interpretation of TABOR). Put simply, Bruces after-the-fact

that a

real controversy exists) (emphasis added); see alsoWardell v. Duncan, 470 F.3d 954,

960 (10th Cir. 2006) ([t]o defeat summary judgment, it is not enough for plaintiff to

disagree with the views expressed in the affidavit; he must point to evidence creating

genuine factual disputes that undermine those views). Those facts must therefore be

deemed true, and to the extent that they are relevant and material, they may serve as the

basis for summary judgment in the Defendants favor.


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commentary on what TABOR means or what it was intended to accomplish should

simply be ignored. Cf. Mesa County of Bd. of County Commrs v. State, 203 P.3d 519,

534 (Colo. 2009).

Bruces continued misunderstanding of the historical composition of the TABOR

emergency reserve also bears noting. Bruce claims that [t]he interpretation [of 20(5)]

for the first 10 years was to use cash only,Resp. Br. at 7, but the evidence appended to

the Defendants motion for summary judgment demonstrates that this is untrue. The

TABOR emergency reserve has always included both cash and non-cash assets. The

decision to include state properties did expand the categories of assets designated, but it

did not mark a fundamental shift in the reserves basic composition.

Because Bruce offers neither facts rebutting the Defendants assertions, nor any

evidence supporting his own arguments, the Defendants are entitled to summary

judgment if the facts presented in support of the summary judgment motion, along with

their points of law, are sufficient to support it. The relevance and materiality of the

Defendants assertions of fact are addressed in detail below.

ARGUMENT

I. The General Assemblys inclusion of non-cash assets in the TABORemergency reserve is consistent with its historical interpretation of 20(5).

Bruces Complaint focused on the states inclusion of capital assets in the TABOR

emergency reserve. However, the response to the Defendants motion for summary


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judgment reveals that his challenge is actually far broader. The response clarifies that

Bruce objects not only to the designation of capital assets as part of the TABOR

emergency reserve, but also to the General Assemblys designation ofanything

Whether TABOR actually establishes such a requirement is more a question of

law than it is one of fact. But it is not a question that can or should be resolved in a

vacuum. To the contrary, for more than a century our appellate courts have

acknowledged the General Assemblys role in interpreting vague and uncertain

provisions of the constitution. See Frost v. Pfeiffer, 58 P. 147, 151 (Colo. 1899)

(acknowledging the importance of legislative interpretation in resolving case[s] of doubt

or ambiguity in the constitution). While not binding on the judiciary, [t]he General

Assemblys construction of TABOR made shortly after its adoption is to be given great

weight.Zaner v.City of Brighton, 899 P.2d 263, 267 (Colo. App. 1994). This is

particularly true in light of the legislative declaration that is incorporated into TABORs

implementing legislation: Where the meaning of section 20 of article X is uncertain, the

general assembly has attempted to ascertain the attempt of those who adopted the

that is

either: 1) not cash; or 2) part of a pre-existing cash fund. In other words, Bruce argues

that there is one, and only one, way that the General Assembly can comply with 20(5):

by establishing a separate and independent all-cash account that includes the whole of the

TABOR-mandated emergency reserve.


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measure, and where appropriate, the intent of the proponents, as well as to apply other

generally accepted rules of construction. 24-77-102(1)(e), C.R.S. (2010).

It is for these reasons that the evidence appended to the summary judgment is not

only relevant and material, but is also highly persuasive. The Defendants evidence

demonstrates that the General Assembly when it interpreted the obvious ambiguities

presented by 20(5) for the first time construed the provision precisely the same way

that it does today. Hence, in 1993, just as in 2010, the TABOR emergency reserve

contained a mix of cash and non-cash derived from state-owned assets of varying values

and types. While the legislatures contemporaneous interpretation of TABOR 20(5)

certainly does not bind this Court, it is certainly an important factor to consider, most

importantly because it establishes that the inclusion of state properties beginning in 2003

did not represent a sea change in the composition of the TABOR emergency reserve.

II. Accounting principles are relevant because they fill the void left byTABORs vague and ambiguous drafting.

Bruce is right about one thing: accountants including the State Controller do

not have a secret power to amend the constitution. Resp. Br. at 2. The State

Controllers affidavit, however, makes no such suggestion. To the contrary, it was

included to explain: 1) the history of the TABOR emergency reserve; and 2) how

TABOR 20(5) interacts with accounting principles that are incorporated into state law.

Importantly, it demonstrates that from an accounting perspective, there is no difference


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between cash and non-cash assets, and that consistent with applicable accounting

principles, either or both can be included as part of a reserve. If TABOR 20(5) was

intended to alter the accounting principles that have guided the state budgetary process

for decades, it would have barred the state from relying on them following its passage. It

did not, however, and as a result the General Assembly expressly incorporated GAAP

into TABORs implementing legislation. See 24-77-102(2)(c), C.R.S. (2010) ([t]he

provisions of this article should not be construed to substitute for generally accepted

accounting principles which are applicable to financial documents and reports of state

government).

The Controllers affidavit is relevant and material because it establishes that the

composition of the TABOR emergency reserve is consistent with the very accounting

principles that TABORs implementing legislation requires. As the motion for summary

judgment demonstrates, Bruce is unable to show that 20(5), by its plain language,

requires the TABOR emergency reserve to be composed solely of cash. In the absence of

such a constitutional requirement, all that the Defendants must do is show that the

composition of the TABOR emergency reserve is consistent with state law. The State

Controllers affidavit does precisely that.

III. Summary judgment should be granted in the Defendants favor.The authority conferred upon the Colorado General Assembly is broad; it permits

the legislature to enact any law that is not expressly or inferentially prohibited by the


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constitution of the state or of the nation. People v.Y.D.M., 593 P.2d 1356, 1359 (Colo.

1979). The Defendants motion for summary judgment establishes that 20(5) does not,

by its plain terms, place any express restrictions on the composition of the TABOR

emergency reserve. A review of TABOR as a whole including, among other things, its

unrelated reference to cash reserves in 20(4)(b) indicates that TABOR contains no

inferential restrictions on the reserves composition either. Accordingly, Bruce is unable

to prove that the current composition of the TABOR emergency reserve is

unconstitutional beyond a reasonable doubt. See City of Littleton v. Bd. of County

Commrs of Arapahoe County, 787 P.2d 158, 163 (Colo. 1990). Given the crippling

effect associated with requiring the state to divert some $270,000,000 of revenue into an

unused and virtually unusable account, the correct outcome of this case is clear.

CONCLUSION

Based on the foregoing reasoning, authorities and evidence, along with the

reasoning, authorities and evidence contained in the motion for summary judgment, the

Defendants respectfully request that summary judgment be granted in their favor.


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JOHN W. SUTHERSAttorney General

/s/Matthew D. Grove

MATTHEW D. GROVE, *Assistant Attorney GeneralPublic Officials/PUC UnitState Services SectionAttorneys for Defendants*Counsel of Record

CERTIFICATE OF SERVICE

I hereby certify that on the 4th day of March, 2011, a true and accurate copyof the foregoing REPLY IN SUPPORT OF MOTION FOR SUMMARY

JUDGMENT was served upon the following by first-class mail, postage prepaid:

Douglas BruceBox 26018Colorado Springs, CO 80936Plaintiff, pro se

/s Thomas R. Bovee

Reply in Support of MSJ

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