Board of County Commissioners v. Dougherty, Dawkins, Strand & Bigelow Inc.

890 P.2d 199, 18 Brief Times Rptr. 1855, 1994 Colo. App. LEXIS 330, 1994 WL 598138
CourtColorado Court of Appeals
DecidedNovember 3, 1994
DocketNo. 94CA0132
StatusPublished
Cited by12 cases

This text of 890 P.2d 199 (Board of County Commissioners v. Dougherty, Dawkins, Strand & Bigelow Inc.) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of County Commissioners v. Dougherty, Dawkins, Strand & Bigelow Inc., 890 P.2d 199, 18 Brief Times Rptr. 1855, 1994 Colo. App. LEXIS 330, 1994 WL 598138 (Colo. Ct. App. 1994).

Opinion

Opinion by

Judge ROY.

Plaintiff, the Board of County Commissioners of the County of Boulder, Colorado (County) commenced these proceedings against defendant, Dougherty, Dawkins, Strand & Bigelow Incorporated (Dougherty), a Minnesota investment banking firm, seeking a judgment declaring the rights of the parties with respect to an equipment lease-purchase agreement and related instruments (Agreement).

Dougherty appeals from a summary judgment entered by the district court which held that the Agreement does not violate Article X, Section 20 of the Colorado Constitution entitled “The Taxpayer’s Bill of Rights” (TABOR), and granting the County specific performance of the Agreement, a remedy agreed to by the parties. We affirm.

The sole issue on appeal is whether the Agreement creates a “multiple-fiscal year direct or indirect district debt or other financial obligation whatsoever” as that phrase is used in TABOR. If it does so, then, under TABOR, it is void because no election authorizing it was conducted. See Colo.Const. art. X, § 20(4)(b).

In 1993, the County, without an election, entered into an equipment lease-purchase agreement with a bank pursuant to which the bank agreed to purchase a road grader and lease it to the County for an initial term of approximately eight months with four additional one-year renewal terms. At the conclusion of the final renewal term, the County had the option to purchase the grader at no additional cost.

[202]*202The bank then assigned its rights as lessor to another bank as trustee subject to a trust indenture. The trust indenture called for the trustee to issue certificates of participation representing proportionate interests in the right of the trustee to receive lease revenue from the County.

Dougherty entered into an agreement to purchase all of the certificates of participation provided it was satisfied that the arrangement did not violate TABOR. Dougherty, however, subsequently refused to purchase the certificates of participation because it was not satisfied and so notified the County.

The County contends that no multiple-year debt or financial obligation was created by the Agreement because the County was free to terminate the Agreement, without penalty, by failing to appropriate funds to pay the rent as to each lease year. The lease agreement and the trust indenture contain language to that effect. See Appendix. The certificates of participation similarly provide, stating in pertinent part, as follows:

THIS CERTIFICATE IS NOT AN OBLIGATION OF THE COUNTY, AND THE COUNTY IS NOT OBLIGATED BY THE LEASE TO MAKE ANY PAYMENTS IN ANY FISCAL YEAR BEYOND THE FISCAL YEAR FOR WHICH FUNDS ARE APPROPRIATED FOR THE PAYMENT THEREOF OR TO MAKE PAYMENTS FROM ANY FUNDS OF THE COUNTY OTHER THAN FUNDS APPROPRIATED FOR THE PAYMENT OF CURRENT EXPENDITURES.... ALL PAYMENT OBLIGATIONS OF THE COUNTY UNDER THE LEASE, INCLUDING, WITHOUT LIMITATION, THE COUNTY’S OBLIGATION TO PAY BASE RENTALS, ARE FROM YEAR TO YEAR ONLY AND DO NOT CONSTITUTE A MULTIPLE-FISCAL YEAR DIRECT OR INDIRECT DEBT OR OTHER FINANCIAL OBLIGATION OF THE COUNTY. THE LEASE IS SUBJECT TO ANNUAL [RENEWAL] [CANCELLATION] AT THE OPTION OF THE COUNTY AND WILL BE TERMINATED UPON THE OCCURRENCE OF AN EVENT OF NONAPPROPRIATION. IN SUCH EVENT, ALL PAYMENTS FROM THE COUNTY UNDER THE LEASE WILL TERMINATE, AND THIS CERTIFICATE WILL BE PAYABLE FROM SUCH MONEYS, IF ANY, AS MAY BE HELD BY THE TRUSTEE UNDER THE INDENTURE AND ANY MONEYS MADE AVAILABLE FROM LIQUIDATION OF THE EQUIPMENT. UPON THE OCCURRENCE OF AN EVENT OF NONAPPROPRIATION OR AN EVENT OF DEFAULT UNDER THE LEASE, THERE IS NO ASSURANCE OF ANY PAYMENT OF THIS CERTIFICATE.

Dougherty, on the other hand, contends that the Agreement is void absent an election approving it because: (1) TABOR is worded as broadly as possible to include all multiple-fiscal year financial obligations; (2) the Agreement is a multiple-fiscal year financial obligation; (3) TABOR supersedes prior case law to the contrary; (4) TABOR should be given the interpretation that most restrains growth in government; and (5) the promoters of TABOR intended it to apply to lease-purchase transactions.

I.

Unlike the federal constitution which grants powers, state constitutions, including Colorado’s, are documents of limitation. See Bickel v. City of Boulder, 885 P.2d 215 (Colo.1994) (rehearing denied October 11, 1994); Prudential Insurance Co. v. Hummer, 36 Colo. 208, 84 P. 61 (1906).

At the time the Colorado Constitutional Convention convened in 1875, public indebtedness was one of the critical issues to be addressed. In the mid-to-late 1800’s many state and local governments had issued bonds to help finance the construction of railroads and, prior to the Constitutional Convention, several states had defaulted on bonds issued for that, or a similar, purpose. See A. Heins, Constitutional Restrictions Against State Debt 7-8 (1963); W. Mitchell, The Effectiveness of Debt Limits on State and Local Government Borrowing 12-13, Bulletin No. 45, New York University—Graduate School of Business Administration (1967). By 1875, most of the populous coun[203]*203ties in Colorado were heavily in debt having borrowed funds to acquire securities issued by railroads. See D. Hensel, A History of the Colorado Constitution in the Nineteenth Century 155-165 (unpublished thesis in Nor-lin Library, University of Colorado — Boulder) (1957).

The Constitutional Convention appointed a Committee on State, County and Municipal Indebtedness which was primarily responsible for drafting what became Article XI of the Constitution. See Proceedings of the Constitutional Convention 37 (1907). In its first report to the convention on January 25, 1876, the Committee submitted a proposal for county indebtedness which severely limited the purposes for which debt could be incurred; limited the amount of debt that could be incurred in any one year together with the total aggregate debt which could be outstanding at any one time based on assessed valuations; specified some terms, most particularly the minimum and maximum time debt could be outstanding; and required a two-thirds vote of the qualified electors voting. See Appendix. This initial effort was draconian by almost any standard, but typical for the time. See A. Heins, supra, at 7-9.

After several drafts, considerable discussion, and numerous amendments from the floor, the Constitutional Convention gave final approval to what became Article XI of the Colorado Constitution. See D. Hensel, supra, at 563, 661, 707-08.

Article XI, Section 6, as adopted, incorporated a broad description of what it prohibited, limited the purposes for which indebtedness could be incurred, continued to impose an absolute limit on outstanding indebtedness as measured by assessed valuations but classified the counties, and required a majority vote of the taxpayers. See Proceedings of the Constitutional Convention 692 (1907). At the same time, the Constitutional Convention adopted similar restraints on indebtedness applicable to the state, Article XI, Sections 3-5; school districts, Article XI, Section 7; and municipalities, Article XI, Section 8. See Proceedings of the Constitutional Convention 691-93 (1907).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Schwartz v. State.
361 P.3d 1161 (Hawaii Supreme Court, 2015)
Ruff v. Industrial Claim Appeals Office of the State
218 P.3d 1109 (Colorado Court of Appeals, 2009)
City of Colorado Springs v. Bull
143 P.3d 1127 (Colorado Court of Appeals, 2006)
City of Golden v. Parker
138 P.3d 285 (Supreme Court of Colorado, 2006)
Parker v. City of Golden
119 P.3d 557 (Colorado Court of Appeals, 2005)
Colorado Criminal Justice Reform Coalition v. Ortiz
121 P.3d 288 (Colorado Court of Appeals, 2005)
Submission of Interrogatories on House Bill 99-1325
979 P.2d 549 (Supreme Court of Colorado, 1999)
No.
Colorado Attorney General Reports, 1999
Board of County Commissioners v. Fixed Base Operators, Inc.
939 P.2d 464 (Colorado Court of Appeals, 1997)
Nicholl v. E-470 Public Highway Authority
896 P.2d 859 (Supreme Court of Colorado, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
890 P.2d 199, 18 Brief Times Rptr. 1855, 1994 Colo. App. LEXIS 330, 1994 WL 598138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-county-commissioners-v-dougherty-dawkins-strand-bigelow-inc-coloctapp-1994.