Barber v. Ritter, 196 P.3d 238 (Colo. 2008)

Question: Does the Colorado Constitution allow the legislature to take fees and use them for tax purposes without voter approval?

What the Constitution Says: The Constitution requires that the state must have voter approval in advance for a tax policy change directly causing “a net tax revenue gain”. Colo. Const. art X, § 20(4)(a).

The Mullarkey Justices Disagree with the Constitution: Chief Justice Mary Mullarkey, Justice Michael Bender, and Justice Alex Martinez say that money collected as fees can be used as taxes without voter approval because there is no “net revenue gain” (p. 242). However, there is a “net tax revenue gain” (emphasis supplied) when fees are converted and diverted to tax purposes, and that is why the Colorado Constitution actually does require voter approval.

Three Justices Criticize the Mullarkey Justices: Three Justices berated the Mullarkey Justices for deciding the case since no one who had actually paid fees was in front of the Court. Instead, there were ordinary taxpayers who actually benefitted from the fees that others had paid (p. 256).

What Does the Mullarkey-Bender-Martinez Decision Mean for You? This looks like a policy or political decision encouraging the General Assembly to divert fees for tax purposes. And so the decision is contrary to the Constitution’s TABOR Amendment that is supposed to protect taxpayers from tax increases made without their consent.

Additional Information and References

Read the entire published opinion: Barber vs. Ritter
Related precedent: Bloom v. City of Fort Collins


When is a “fee” not a tax? When the Mullarkey Court says so…

The Colorado Car Tax - er, “vehicle registration fee” increase - brought to you courtesy of the Colorado Supreme Court