by Esther van Mourik

Legislative attorneys usually work quietly in their offices, researching legal issues, drafting bills and amendments, reviewing rules, and annotating cases. Occasionally, we get an opportunity to meet with colleagues and legislators from across the country to delve deeply into legal issues or topics that significantly affect all states. This week, I want to share with you some of the work I’ve had the opportunity to participate in for the last two years.

In 1999 the Executive Committee of the National Conference of State Legislatures (NCSL) established the Executive Committee Task Force on State and Local Taxation of Communications and Electronic Commerce to review and make recommendations to the states on simplifying the administration and collection of sales and use taxes on out-of-state transactions, particularly as they relate to telecommunications. The Task Force’s scope was expanded in 2001 to review corporate income tax law and now includes consideration of other multistate tax issues of interest to states. It is now known simply as the Executive Committee Task Force on State and Local Taxation, or SALT. The following former Colorado legislators have served on the Task Force:

• 2004-2006 – Senator David Owen (R)
• 2005-2008 – Representative Michael Garcia (D)
• 2007-2009 – Representative Don Marostica (R)
• 2010-2014 – Representative Amy Stephens (R)
• 2012-2014 – Senator Ellen Roberts (R)

In 2013, NCSL invited me to attend the Task Force meetings as a legislative staff member. Including me, there are currently three legislative staff members who serve on the committee, along with 35 legislative members from states around the nation. To preserve our nonpartisan role, legislative staff members do not vote on the policy issues or resolutions that the Task Force takes positions on.

One of the Task Force’s main missions is to see that Congress enacts legislation regarding the remote collection of sales tax. For a short primer on that issue, read this past LegiSource article.

The Task Force most recently met in Chicago, Illinois on Sunday, August 7, and Monday, August 8, before the start of the 2016 NCSL Legislative Summit. At that meeting we studied:

• General state tax trends;
• What other states could learn from tax developments in California;
• Taxation of marijuana in Colorado and Washington;
• Lost tax revenue due to “skimming;”
• The “normal tax base” as it relates to tax expenditure reports and budgets;
• State tax accounting methods;
• The impact of state tax changes on the financial reporting of publicly traded companies; and
• Emerging issues in property taxation in 2017.

NCSL staff also updated the Task Force on the status of remote sales tax collection legislation in Congress and in the states. Certain power point presentations and handouts from the Chicago meeting are available here.

The Task Force heard from Helen Hecht, general counsel for the Multistate Tax Commission, about changes in the federal tax treatment of partnerships and the need for conforming state legislation. In general, the IRS determined that new federal rules were necessary to review partnerships, including new audits at the partnership level. Because Colorado piggy-backs off the federal income tax system, if federal tax adjustments are made at the partnership level there may need to be conforming legislation in Colorado’s tax law to account for those federal adjustments on the Colorado tax return. The link to power point presentations, above, includes a presentation on this issue if you would like more information.

In one of the most thought-provoking presentations of this meeting, author and Deputy Publisher of Tax Analysts David Brunori led the Task Force in a rousing (really!) discussion about tax policy considerations for legislators. He started the conversation by saying that he would present his opinions in a way that would likely mean he would not be invited back for another meeting any time soon. Please read this article by Mr. Brunori from September 30, 2015, which lays out the advice he shared at the meeting. For legislators serving on the House and Senate Finance committees, there’s some interesting material there.

Finally, the Task Force amended and readopted the NCSL resolution regarding the enactment of the Remote Transactions Parity Act and readopted the NCSL resolution regarding passage of the Federal Digital Goods & Services Tax Fairness Act. Current copies of both resolutions can be found here. The resolutions were adopted by the full NCSL at the annual business meeting.

The next meeting of the SALT Task Force is scheduled for November 18-19 to continue our work in studying taxation issues affecting the states.

by Julie Pelegrin

Based on the most recent results from the Program for International Student Assessment (PISA), the United States ranks 24th in reading scores, 36th in math scores, and 28th in science scores out of 65 participating countries. The PISA is an international comparative test that 15-year-old students take to demonstrate their knowledge in math, reading, and science. The Organisation for Economic Cooperation and Development (OECD) administers the PISA every four years to a sample of 15-year-old students in each participating country.

The OECD also administers the Survey of Adult Skills as part of its Programme for the International Assessment of Adult Competencies (PIAAC). This instrument assesses persons from 16 to 65 years of age in numeracy, literacy, and problem-solving. The most recent survey involved 33 countries. Persons in the workforce from teens to early 30s – the millennials – in the United States scored in last place or tied for last place in numeracy and problem-solving. They scored third from last (ahead of only Spain and Italy) in reading.

Scoring in the middle to low end of the global pack is more than just a blow to our American egos. According to the report, with this level of performance in reading, math, and science, the United States “will struggle to compete economically against even developing nations, and our children will struggle to find jobs in the global economy.”

Based on the level of concern generated by a presentation on the 2012 PISA results, the National Conference of State Legislatures (NCSL) formed a study group to look at the educational systems in the top-performing countries. The study group’s goal was to identify the common design elements in world-class education systems. For the last two years, 28 veteran legislators and legislative staff, with the assistance of NCSL staff and other national and international education experts, have studied the education systems in ten of the top-performing provinces and countries: Alberta and Ontario, Canada; Hong Kong and Shanghai, China; Estonia; Finland; Japan; Poland; Singapore; and Taiwan.

Last week at the NCSL 2016 Legislative Summit, the study group released its report: “No Time to Lose – How to Build a World-Class Education System State by State.”

As is obvious in the title, the report has a clear sense of urgency. The executive summary starts with the bad news: Most state education systems are falling behind other countries’ educational achievement and failing to make progress on the United States’ National Assessment of Educational Progress. But it also gives the good news: There are common elements in the educational systems of high-performing countries that states can adapt and adopt for their own systems.

The report identifies these common elements:

1. Children come to school ready to learn, and struggling students receive extra support so that all have the opportunity to achieve high standards.
2. A world-class teaching profession supports a world-class instructional system in which every student has access to highly effective teachers and is expected to succeed.
3. A highly effective, intellectually rigorous system of career and technical education is available to students who prefer an applied education.
4. Individual education system reforms are connected and aligned as parts of a clearly planned and carefully designed comprehensive system.

The report then sets out steps that a state can immediately take to further improve and develop its education system:

• Build an inclusive team and set priorities
• Study and learn from top-performing countries and states
• Create a shared statewide vision for public education
• Benchmark the state’s education policies against those of high-performing countries and states
• Get started on changes to one piece of the system
• Work through the “messiness” of the process of designing system-wide reform
• Invest the time that it will take to implement system-wide reform

In looking at the high-performing countries, the study group recognized that most had developed a plan for public education and had implemented the plan over the course of 10 to 20 years. The group also noted that the high-performing countries did not adopt “silver bullet” strategies. Their plans for their public education systems were integrated, each element coordinated with and supporting the other elements.

The report addresses some of the objections that are typically raised in comparing the education systems in the United States with those of other countries. One of the main criticisms is the assertion that the United States is more diverse than other countries and therefore faces challenges that other countries do not. But both Europe and Asia have experienced increases in immigration in the past several decades, and some of these countries have overcome the educational challenges that stem from a student population with multiple ethnicities, languages, and religions. And the proportion of Canadian students who were born outside Canada is actually greater than the proportion of U.S. students born outside the U.S.

The report recognizes that each state is responsible for the quality of its educational system. And while each system may include the elements identified in the report, each state must modify and adapt each element to fit the uniqueness of the state’s educational system and needs.

Finally, the report concludes:

By Sharon Eubanks

In the last two LegiSource articles, we’ve talked about what a citizen must do to show that he or she has standing to sue someone to enforce a statute or to sue the government to enforce a statute or the constitution. What if the person who wants to sue is a legislator? Does a legislator have standing to sue in his or her capacity as a legislator to challenge language in the constitution? There is a case in federal court right now that is trying to answer that question.

In May of 2011, a group of legislators, school board members, and other taxpayers filed a lawsuit in federal court claiming that the Taxpayer’s Bill of Rights (TABOR) violates several clauses of the United States Constitution – including the clause that guarantees to every state a republican form of government – as well as certain federal statutes. This group asserts that, by removing the taxing power of the Colorado General Assembly, TABOR renders the General Assembly unable to effectively fulfill its legislative obligations in a representative democracy and a republican form of government. In July of 2015, we posted an article that more fully explains the Kerr v. Hickenlooper lawsuit.

Although Kerr v. Hickenlooper is over five years old, a court has yet to consider any of the claims raised in the case. The case has been stuck on the issue of whether the legislators have standing to bring the lawsuit. As you may recall, to have standing to sue, a person must demonstrate that she has been harmed by the person she’s suing and that she has a right to sue for that harm. In this case, the legislators must show that TABOR has harmed an interest that they have the authority to protect. If they can’t show that, the lawsuit will be dismissed.

In July of 2012, the federal district court held that the legislators did have standing to bring the lawsuit, and the Tenth Circuit Court of Appeals agreed. The matter then was appealed to the United States Supreme Court.

About a year ago, the Supreme Court issued a grant, vacate, and remand (GVR) order in the case. The order basically sent the case back to the Tenth Circuit Court of Appeals to reconsider whether the legislators have standing based on the Supreme Court’s decision in a case called Arizona State Legislature v. Arizona Independent Redistricting Commission et al, 576 U.S. ___ (2015). The Arizona decision considered whether the Arizona State Legislature had standing to challenge the constitutionality of a redistricting commission that was created by a ballot initiative to draw congressional districts. In that case, the Court held that the Legislature did have standing because the Legislature, as an institution, had an interest in redrawing the congressional districts for Arizona that the legislature could sue to protect. In this case, the Legislature, as an institution, brought the suit as the plaintiff.

On June 3, 2016, the Tenth Circuit Court of Appeals ruled that the legislators in Kerr v. Hickenlooper do not have standing to bring the lawsuit.

Based on the Arizona decision, the court of appeals determined that the first question in deciding whether a group of legislators has standing is to decide whether the legislators are claiming an institutional injury. This is an injury to the power of the legislature as a whole rather than an injury to an individual legislator’s interest. The court of appeals concluded that individual legislators do not have standing if they are alleging an institutional injury and not an individual injury.

The court of appeals then looked to see whether the legislators in Kerr v. Hickenlooper alleged injury to an institutional interest. The court found that they did because the legislators’ claim is based on the loss of legislative power to raise taxes, which impacts all members of the General Assembly equally.

The court of appeals then asked whether the legislators who are suing have authority to represent the Colorado General Assembly as an institution and found that they do not. The legislators are pursuing their claims in their individual capacities and not as representatives of the General Assembly. By contrast, in Arizona, the Arizona Legislature as an institution filed the suit. Since they are not authorized to represent the General Assembly or either the House of Representatives or the Senate, the court of appeals determined that the legislators are not institutional plaintiffs. And that means they do not have authority to sue for an injury to an institutional interest.

As a result, the court concluded that it must reverse its previous decision and found that the individual legislators in Kerr v. Hickenlooper do not have standing because they are trying to protect an institutional interest but they do not have authority to represent the entire institution. The court then sent the case back to the federal district court.

The group of legislators, school board members, and other taxpayers filed a petition for rehearing with the Tenth Circuit Court of Appeals on July 8, asking the court to reconsider its decision based on additional arguments made by the group. The court denied the petition. At this point, it appears the school board members and other taxpayers who brought the suit will now try to establish standing to sue on remand to the federal district court. Stay tuned for further updates.

by Julie Pelegrin

In addition to telling people what they can and cannot do, the statutes may tell a state agency or a local government what it must do. If the state agency, or a local government, or a government official does not comply with the statute, can a citizen sue the government or the official?

Only if the citizen has standing to sue.

As discussed in last week’s article, to bring a civil suit, a person must be able to demonstrate actual injury to a legally protected interest. If a citizen thinks the state or a local government has failed to follow the statutes or the constitution, the citizen must demonstrate that the statute or constitutional provision creates a legally protected interest for the citizen and that the citizen is harmed by the state’s or the local government’s violation of that interest.

In these types of cases, the most important question is whether the citizen is suing to enforce a statute or a constitutional provision.

If the citizen is suing to enforce a statute, the test for standing is the same as when the citizen is suing another person. As you may recall, to sue Mr. Adams, Mr. Jefferson had to show actual injury to a legally protected interest (in our example last week, he got sick eating Mr. Adams’ eggs). If the statute did not say Mr. Jefferson had a private right of action, Mr. Jefferson had to meet a three-part test: He had to show that he was within the class of people who were intended to benefit from the  statute (the general public, who should be warned that Mr. Adams’ eggs could be contaminated); that the legislature intended to create a private right of action (in our case, the act requiring notice of possible contamination didn’t specifically grant a private right of action); and that an implied right of action was consistent with the purposes of the statute. The same test would apply if Mr. Jefferson wanted to sue the Commissioner of Agriculture for failing to inspect Mr. Adams’ farm.

A recent Colorado Supreme Court case, Taxpayers for Public Education v. Douglas County School District, considers whether a citizen has standing to enforce a statute. In this case, parents living in the Douglas County School District claimed that the school district violated the “Public School Finance Act of 1994” by allowing parents to use the school district’s public money to pay for private school. The Court held, however, that the parents did not have standing to sue to enforce the Act. The Act does not specify how it is enforced, so the Court applied the test explained above.

The Court found that the parents were within the class of persons that the Act is supposed to benefit, but the Court did not find that the General Assembly intended to create a private right of action. Also, because the Act authorizes the State Board of Education to adopt rules, the Court concluded that the General Assembly actually decided not to create a private right of action because the State Board can enforce the Act through rules. Finally, the Court held that a private right of action is not consistent with the purpose of the Act, which is to fund public education. The Court said that, to accomplish this purpose, the State Board and the Department of Education need flexibility to calculate, administer, and distribute the funding under the Act. Allowing citizens to sue every time they disagree with an agency’s decisions would impede the Department’s ability to administer the Act.

The analysis would be different if the parents had sued to enforce a constitutional provision. When it comes to enforcing the state constitution, the courts in Colorado recognize the doctrine of “taxpayer standing.” This is a broader doctrine of standing, which essentially says that a taxpayer is injured whenever the government – state or local – fails to comply with the state constitution. The Court assumes there is always a private right of action to enforce the constitution, and it does not apply the test explained above.

For example, the Colorado Supreme Court held that a real estate broker, a paint company, and an oil company had taxpayer standing to challenge the state’s transfer of money from cash funds to the general fund and its use of that money for general government purposes. The plaintiffs alleged that these actions violated the provisions of section 20 of article X of the state constitution (TABOR). The Court held that every taxpayer has a legally protected interest in ensuring that the government complies with the constitution. The government’s alleged violation of the constitution is an injury to the taxpayer’s interest, so the plaintiffs had standing.

Similarly, when Mr. Conrad sued the City and County of Denver for placing a nativity scene on the steps of the city and county building at Christmas, he claimed a violation of section 4 of article II of the state constitution, which prohibits governmental preference of a religion and prohibits the government from forcing a citizen to support a particular religion. The Court held that Mr. Conrad had standing because, as a taxpayer, he was directly injured by Denver’s alleged failure to comply with the constitution.

So why does a court assume a taxpayer is harmed by a violation of the constitution and can always sue the government, but if a taxpayer is harmed by the government’s violation of a statute, she can sue the government only if the statute says she can? Don’t citizens have a right to require the government to comply with the law, whether it’s statutory or constitutional?

It’s a separation of powers issue. The General Assembly controls the language of the statute, and the General Assembly’s intent controls the application of the statute. If the statute doesn’t give a citizen a private right of action to enforce the statute, it’s because the General Assembly did not intend to give it. And the courts, in interpreting a statute, are bound by the General Assembly’s intent.

The constitution, however, is approved by the people, not the General Assembly, and the General Assembly does not control how it is applied. The court will therefore use broader latitude in allowing citizens the opportunity to sue for alleged violations of their constitution.

by Julie Pelegrin

Statutes often tell people, businesses, and organizations what they must or cannot do. But many statutes do not include an enforcement mechanism. Criminal statutes carry a penalty for a violation, and some civil statutes include a fine structure for violations. But in many cases, the law doesn’t explain what happens if someone does not follow the law. So the question arises, “Can an individual sue someone who violates this law?”

The answer lies in the issue of standing. If Mr. Jefferson wants to sue Mr. Adams – for anything – he must have standing to sue, which means he must have actually suffered an injury to a legally protected interest. In plain English: Mr. Jefferson must show that he suffered an injury that he is entitled to sue Mr. Adams for.

If Mr. Adams fails to comply with a statute and this results in an injury to Mr. Jefferson, then Mr. Jefferson may have standing to enforce the statute by suing Mr. Adams and forcing him to comply with the statute.

Proving standing is a preliminary requirement for Mr. Jefferson’s lawsuit. If he cannot prove actual injury to an interest that the statute says he can protect, the court will dismiss the case without considering whether Mr. Adams actually did or did not injure Mr. Jefferson. This is necessary to protect the separation of powers. When the court exercises its authority, it often means the court is disapproving or annulling an action taken by the legislative or executive branch. So the court must be careful to take action only when there is a specific person making a claim based on a direct harm or interest that the person is entitled to protect.

For Mr. Jefferson to enforce a statute, he must demonstrate that the statute authorizes him to sue Mr. Adams to protect an interest created in the statute. Some statutes can be enforced by private citizens and some cannot. It depends on whether the statute creates or implies a private right of action — a lawsuit filed by a person — to enforce the statute.

Some statutes specify that an executive branch agency will enforce the requirements of a statute, and a private person cannot enforce the statute. For example, only the Department of Labor and Employment can enforce the statute that requires a public works project funded by public money to use Colorado labor. And an individual cannot sue a hospital to enforce the statute that requires a hospital to provide information and training for a designated caregiver.

Other statutes specifically create a private right of action for enforcement. For example, a citizen can file a complaint with the Secretary of State alleging a violation of the voter registration statutes, and the Secretary of State and the Attorney General may act on the complaint. But if the Attorney General does not sue on the complaint within 120 days, the citizen may file a civil action.

But in most cases, the statute is silent as to whether an individual can enforce the statute. If the statute that Mr. Adams violated doesn’t say Mr. Jefferson can sue to enforce the statute, how will the court decide whether Mr. Jefferson really has a legally protected interest in the statute?

The court will ask three questions:

1. Is Mr. Jefferson within the group of persons who are intended to benefit from the statute?
2. Did the legislature intend to create, even though it’s only implicit, a private right of action?
3. Is an implied private right of action consistent with the purposes of the legislative scheme?

Let’s suppose that Mr. Adams is a farmer who sells milk, eggs, and butter. The Warnings Against Contaminated Dairy (WACD) Act requires a farmer who sells milk, eggs, or butter to warn the buyer that the products could be contaminated. The WACD act is silent as to who enforces this requirement. Mr. Adams sells milk, eggs, and butter to Mr. Jefferson without mentioning possible contamination. After eating breakfast the next morning, Mr. Jefferson suffers a bad case of food poisoning.

As we stated earlier, Mr. Jefferson wants to sue Mr. Adams. The court will first ask, “Is there injury?” Clearly. Next, “Is there a legally protected interest?” Well…the WACD act requires Mr. Adams to issue a warning, but it doesn’t specifically say that Mr. Jefferson can sue him if he doesn’t. So, the court will consider the three questions.

Arguably, the act is intended to benefit persons who buy milk, eggs, and butter. As a buyer, Mr. Jefferson should be benefited by the act. The legislature could have intended to create a private right of action because the likelihood that a buyer would sic his lawyers on the seller every time the seller failed to give the warning is a strong incentive for the seller to comply with the act. Finally, assuming the act is intended to protect the public from accidentally buying contaminated food, allowing someone to sue to enforce the act is completely consistent with the purpose of the act.

So Mr. Jefferson probably has standing to sue Mr. Adams to enforce the WACD act. That doesn’t mean Mr. Jefferson will win the suit; he may have gotten sick from the oysters he ate at the tavern the night before. But he has standing to bring the suit.

What if a person wants to bring a suit to require the state or a local government or a public official to follow a statute? Or to comply with the constitution?

We’ll answer those questions in next week’s post.