1 for the Money

Interpreting Amendment 1 can be quite a balancing act. On Monday, Fitzhugh Havens took the fall.

The county has found itself riding a mini-wave of prosperity. Most of it is propelled by tourism and hunters coming from as far away as Texas, Oklahoma, Arkansas and California. (During hunting season the county's population swells from about 7,000 to more than 25,000.) As a result, in 1994 county officials found themselves looking at the possibility that they'd collect more money than they could legally keep under Amendment 1. (Whether there actually has been such a surplus remains a point of some contention. Havens says yes; county officials suggest not.)

Although Amendment 1 requires that surplus money be returned to taxpayers, like many local governments, Archuleta County was reluctant to hand it over. Six years earlier, when Hunt was hired away from his New Mexico road-construction business to become county manager, he had to repair a boat that was leaking fast. "We were caught in a situation where we were living off our reserves," he recalls.

Hunt says he has since balanced the budget--Archuleta County's budget totals about $7.5 million this year--and has just begun building the county's reserve fund. The county may need it, Hunt adds; recently he's become concerned over preliminary signs of an economic slowdown. "Right now this is a very healthy county," he says. "But I've been watching the social service rolls real carefully these days."

Add to that the fact that the county's roads are in terrible shape--only 10 percent of them are paved, and a developer who'd agreed to build some new ones declared bankruptcy in 1990--and county officials decided they could use any extra money they could get. So in November 1994 the county asked voters if it could keep any excess sales tax it collects over the next four years. Archuleta County voters agreed by a margin of 2 to 1.

Havens voted against the measure.
Like many of Colorado's anti-tax activists, Havens has spent a lot of time reading Amendment 1. He agrees with most interpretations of the law regarding extra money: that when a government's revenue exceeds what the law allows, officials must provide a refund of some sort--referred to as an "offset" in the law.

A few Colorado governments actually have returned some excess money: Colorado Springs and the Scientific and Cultural Facilities District, which gave credits on local utility bills, are the two primary examples. Most governments, however, have not. Which is where Havens's reading of the Tabor Amendment takes a detour.

When Archuleta County residents voted to let their government keep its cash, Havens thought that officials still owed residents "an offset," such as a promise to lower taxes later. Even though voters had agreed to let the county keep any extra money, Havens reasoned that the vote was no more than a temporary courtesy--a loan that required repayment.

"I just thought the county was exploiting what they might have thought of as a loophole," he says. "But I didn't think it was a loophole. I'm a conservative, and I just didn't like the way the public gets gigged all the time on its taxes."

"When he brought it to me and I read it, I said, 'Yeah, you're right,'" says Bill Zimsky, the Durango lawyer who agreed to take Havens's case. "Everybody else thinks we're wrong. But that never stopped me before."

The two men filed the lawsuit in Archuleta County court in January 1995. Six months later the local judge ruled against them. "I expected that," says Havens. "My attorney told me, 'Don't file this if you're not prepared to take it to the Supreme Court.'" This past May, they did.

After sitting on the case for nearly half a year, the state's highest court ruled against Havens early this week. The justices concluded that his reading of Amendment 1 would have violated the spirit of Tabor by depriving voters of their right to decide their own financial fates. The decision lines up with the court's other Amendment 1 rulings, which generally have been decided in favor of local governments' interpretation of the law.

Havens paid his own way through the legal challenge. He says he wouldn't have done it any other way. "I didn't want to go through the trouble of trying to sell any idea to anybody else or asking for any money," he explains. In all, the experiment cost him $14,000.

"It was my retirement money. Then again, I can't take it with me. My cousin told the undertaker in Pagosa Springs that he was going to take his money with him when he died. And the undertaker told him, 'No, you're not. I go over your body first.' So I spent mine.

"I suppose that if I hadn't done this I would still have the money. But people spend money gambling or on wild women or some other damn fool thing. And this just happened to be my damn fool thing. I just thought it was something that ought to be tried, and I tried it. No regrets. I'd do it again."

In fact, says Havens, he's becoming particularly interested in Amendment 13, which would broaden the rights of citizens to contest the decisions of their local government. "I ain't got much money left," he says. "But I'm for sure going to donate some of it. Right now citizens aren't allowed to petition their government. And that's no damn good.

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