DENVER — A new lawsuit aims to undo a massive transportation funding bill state lawmakers passed last session.
SB21-260 offered the biggest boost to transportation funding the state has seen in decades. It promised $5.4 billion to fix roads and bridges, expand mass transit options and boost air quality.
To do that, the law relied on a series of fee increases on everything from gas, to delivery, to rideshares.
However, in 2020, Colorado voters passed Proposition 117, which prohibited state lawmakers from creating any new fee-based enterprises that would garner $100 million or more without asking the voters first.
To get around that, Senate Bill 260’s co-sponsors split up the fees and funneled them into five different enterprises: a Community Access Enterprise, a Clean Fleet Enterprise, a Clean Transit Enterprise, a Nonattainment Area Air Pollution Mitigation Enterprise and the Statewide Bridge and Tunnel Enterprise.
“They all fall under the threshold of 117. So, we are abiding by the will of voters,” Speaker Alec Garnett told Denver7 on March 19, 2021.
However, even during the bill’s debate, critics questioned whether that idea went against the spirit of what the voters intended.
“We just told you we don’t want to do this and now, because of some slight of language, you’re saying you can do it,” Rep. Hugh McKean told Denver7 on March 19, 2021.
The question of working around Prop. 117 was also brought up at the bill’s unveiling last May.
At the press conference, Colorado Springs Mayor John Suthers told reporters he felt that the bill would withstand any kind of court scrutiny.
This week, a right-leaning group is putting that idea to the test with a lawsuit aimed at invalidating SB-260.
The lawsuit was brought on by Americans for Prosperity, Michael Fields, Richard Orman and state Sen. Jerry Sonnenberg.
“The way they did it, we believe, violates Proposition 117 and the Taxpayer Bill of Rights,” Mallory said. “They think they found a loophole, and this is why people have such distrust in politicians.”
The lawsuit attacks the new transportation law on several fronts. First, it claims that the Taxpayer Bill of Rights (TABOR) was violated by the new law since the fees act similar to taxes and because there was no downward adjustment of TABOR.
The lawsuit also accused the legislation of violating Prop. 117 by raising more than $100 million in five years, despite splitting the money between different enterprises.
“That's what this administration and the leaders in our current legislature have done, is find workarounds over the last number of years on how to get around the people's wishes,” Sonnenberg said.
The lawsuit also claims that the law violates the state’s single subject requirements for bills. Colorado’s Constitution specifies that no bill other than appropriations bills can contain more than one subject in them.
Because this law not only deals with transportation, but also transit and air quality, the plaintiffs believe it violates state law.
Sonnenberg says if lawmakers want to go back and try to pass five separate bills addressing the different enterprises, that could be a viable workaround.
“I'm a process guy, and if you follow the Constitution, and you pass it in five separate bills instead of one giant omnibus bill, absolutely,” he said.
Both Sonnenberg and Mallory are hoping a judge will decide to repeal the law to force legislators back to the table to discuss how to fund the state’s transportation needs and either split the legislation up or ask the voters for permission to add the fees.
“The state has now a $37 billion budget. They can find a way to fund transportation,” Mallory said.
Both men also believe the state has not prioritized transportation funding in years and say more of the state budget should go to roads.
“My argument has always been that transportation should be a priority for our spending, rather than all these other pet projects out of the general fund,” Sonnenberg said.
Denver7 reached out to the law’s prime co-sponsors for an interview but they declined to comment on the lawsuit.
The governor’s office sent Denver7 the following statement: “We’re not going to comment on pending litigation related to this bipartisan transportation bill that is going to finally fix our damn roads but obviously we all agree that there should be federal gas tax relief and the Governor has also proposed state gas fee relief now."
Some of the bills proposed this legislative session would delay the implementation of the fees included in the new transportation law to offer families temporary relief to high inflation rates.
But the lawsuit’s plaintiffs say they want a judge to rule on the legislation to determine whether those fees should be allowed at all.
