dissenting.
Today the majority excuses a local government’s calculated refusal to provide the notice required for proposed tax increases by the popularly adopted Taxpayer’s Bill of Rights, holding that the term “tax increase” was never intended to include the imposition of a future tax, despite clearly requiring voter approval, as long as it does not exceed the amount of a previous tax earmarked for the same purposes. I consider the majority’s interpretation of the term “tax increase” (as well as its understanding of the words “plain and ordinary meaning”) to be so strained as to demand some expression of opposition. I therefore respectfully dissent.
The majority’s (somewhat) condescending rejection of any other reading rests on its unstated (and to my mind clearly erroneous) assumption that the term “tax increase” is limited to increases in the tax burden under which the taxpayers labor at the time voter approval is sought for additional tax revenues. When the majority speaks of “present” tax levels and “existing” sales and use taxes, maj. op. at 996, it refers to levels of taxation preceding the election, rather than the burden to which taxpayers will be subject, barring their approval of a greater amount, in the applicable tax period. The plain and ordinary meaning of the term “tax increase,” however, would seem to be much less cramped and encompass any tax for which the approval of the voters is required. Even if this constitutional language, in the abstract, could reasonably be limited to future tax levels exceeding those to which taxpayers had previously been subjected, such a construction could not be squared with the remaining provisions of TABOR or its clear purpose of expanding voter oversight of the taxation process.
In rejecting the possibility of a different construction, the majority fails to even consider whether the status quo against which a proposed tax measure should be compared is actually the tax burden that already exists for the period in question, in the absence of additional voter-approved taxes. Instead, it disparages the arguments advanced by the taxpayer-appellee by erecting and knocking down various straw men having little relation to his actual objections. Finally, it concludes by suggesting that its interpretation is supported by the fact that the electorate would merely have been confused by notification that subjecting itself to a future 0.1% sales and use tax would actually amount to approving a tax increase.
With regard to the taxpayer’s assertion that subsection (4)(a) identifies the extension of an expiring tax as a particular kind of tax increase, the majority finds it implausible that the term “tax increase” could be intended to include tax extensions, largely because the definitional provision of TABOR contains no specific definition of “tax increase,” expressly including extensions, see maj. op. at 994, and because no explicit reference to tax extensions appears along with the term “tax increase” in subsection (3), separately triggering the same notice requirements for the extension of expiring taxes. See maj. op. at 994. Of course, none of the tax measures singled out in subsection (4)(a) for voter approval appear individually in subsection (3), allowing the natural inference that repeating them each by name would be redundant in light of subsection (3)’s blanket reference to any “tax increase.”
Instead, “extension of an expiring tax” appears only in subsection (4)(a) as one of a number of tax measures requiring voter approval, including any “new tax,” any “tax rate increase,” any “mill levy above that for the prior year,” any “valuation for assessment ratio increase for a property class,” and any “tax policy change directly causing a net tax revenue gain to any district,” Colo. Const. Art. X, § 20(4)(a) (emphasis added), all of which clearly designate techniques for increasing taxes beyond what they would be *998■without such action. The broader term, “tax increase,” appears only in subsection (3), which sets out the particular notice requirements for ballot issues that would increase either taxes or debt — the former clearly corresponding to the measures described in (4)(a) and the latter corresponding to those described in (4)(b). Presumably the majority does not intend that any “new tax” or “tax rate increase” be excluded from the rubric of “tax increase,” like any “extension of an expiring tax,” merely because these terms are also not repeated in subsection (3).
Contrary to the majority’s characterization of the “plain language or structure” of subsections 3 and 4, maj. op. at 994, read together these two provisions evidence an unmistakable attempt to foreclose precisely the kind of subterfuge sanctioned by the majority today. Ironically, the majority relies on TABOR’s failure to fully repeat, in subsection (3), subsection (4)(a)’s explicit identification of various ways of characterizing or structuring tax increases as support for its assertion that subsection (4)(a) was never intended as an enumeration of specific examples of tax increases at all. Whether or not the majority’s rationale logically dictates that the other tax measures enumerated in subsection (4)(a) also be exempt from the notice requirements of subsection (3), it does make clear its understanding that The Taxpayer’s Bill of Rights mandates voter approval for certain tax measures, despite their failure to qualify as either tax increases or increases in public debt.
The majority also criticizes the taxpayer for seeking an overly broad or expansive definition of “tax increase,” to include “all forms of revenue increases.” Whether this is an accurate description or not, it is hardly relevant to the matter before the court today, which is the approval of a tax that could not otherwise exist. Unlike the majority’s hypothetical of “a net revenue gain” without changing tax burdens for individual taxpayers, maj. op. at 995, the “extension of an expiring tax,” at issue here, clearly increases the tax burden beyond that under which individual taxpayers would have labored without the extension.
Finally, the failure to comply with TABOR’s notice requirements in this instance was not simply a technical omission, belatedly asserted by taxpayers as a means of nullifying election results with which they were displeased. The matter was raised well before the election, and the municipality consciously chose not to give notice or identify the measure as a proposed tax increase. On the contrary, the ballot title for this tax measure expressly indicated that approving the measure would not raise additional taxes, a deceptive statement, accurate only in the narrow sense validated by the majority today. By failing to treat this “extension of an expiring tax” as a tax increase, the municipality was able to raise additional tax revenues, requiring voter approval, without ever informing the electorate of its estimate of the maximum dollar amount to be raised by approving the measure or its estimate of fiscal year spending without that amount. See Colo. Const. Art. X, § 20(3)(b)(iii).
Surely a fair reading of the Taxpayers’ Bill of Rights leads inexorably to the conclusion that this is an example of precisely what the amendment was designed to prohibit. Nor do I believe the doctrine of “plain meaning” provides the majority any refuge. Particularly, in this context, I fear that the majority’s plain meaning explanation — that “tax increase” can only mean an increase in the taxes taxpayers have been paying rather than an increase in the taxes they would be required to pay without an extension— sounds so farfetched as to evoke the suggestion of legal artifice and undermine confidence in our protestations that we merely acknowledge the only reasonable meaning of, and therefore the voters’ intent embodied in, the constitutional language itself.
Because I believe the plain and ordinary meaning of the term “tax increase,” in context, must include the “extension of an expiring tax,” and that the clear intent of TABOR is not only to require voter approval for such an extension but also to provide the voters sufficient information to make a rationale choice, I respectfully dissent.