COURT OF APPEALS

STATE OF COLORADO
2 East 14th Avenue
Denver, CO 80203

Denver District Court

Honorable Ross B.H. Buchanan, Judge
Case No. 2015 CV 32305

Appellants/Cross-Appellees:
TABOR FOUNDATION, a Colorado nonprofit corporation;
COLORADO UNION OF TAXPAYERS FOUNDATION, a
Colorado nonprofit corporation; REBECCA R. SOPKIN, an
individual; and JAMES S. RANKIN, an individual,
v.
Appellees/Cross-Appellants:
COLORADO DEPARTMENT OF HEALTH CARE POLICY COURT USE
AND FINANCING; COLORADO HEALTHCARE ONLY
AFFORDABILITY AND SUSTAINABILITY ENTERPRISE; Case No.
KIM BIMESTEFER, in her official capacity as Executive 2019 CA 621
Director of the Colorado Department of Health Care Policy
and Financing; COLORADO DEPARTMENT OF THE
TREASURY; DAVE YOUNG, in his official capacity as
Colorado State Treasurer; and the STATE OF COLORADO,
and
Appellee/Intervenor:
COLORADO HOSPITAL ASSOCIATION.

PHILIP J. WEISER, Attorney General

W. ERIC KUHN, Senior Assistant Attorney General*
JENNIFER L. WEAVER, First Assistant Attorney General*
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 6th Floor, Denver, CO 80203
Telephone: (720) 508-6143/6145, FAX: (720) 508-6041
E-Mail: eric.kuhn@coag.gov/jennifer.weaver@coag.gov
Registration Number: 38083/28882
*Counsel of Record

NOTICE OF CROSS APPEAL

 Appellees/Cross-Appellants, Colorado Department of Health Care
Policy and Financing, Colorado Healthcare Affordability and

Sustainability Enterprise, Kim Bimestefer, in her official capacity as

Executive Director of the Colorado Department of Health Care Policy
and Financing, Colorado Department of the Treasury, Dave Young, in
his official capacity as Colorado State Treasurer, and the State of
Colorado, together the “State Defendants,” submit the following Notice
of Cross Appeal pursuant to C.A.R. 3(d), 3(h), and 4(a).

I. Nature of the case.

A. Nature of the controversy.

In 2009, the General Assembly enacted a Hospital Provider Fee

(HPF) as part of a comprehensive plan to lower health care costs in the

state. The fee, with matching federal funds, is used to increase
reimbursement to Colorado hospitals and increase the number of

individuals covered by public health insurance programs—both a

service to the fee paying hospitals. In 2017, the General Assembly
abolished the HPF program through Senate Bill 17-267 and created an
enterprise to administer a new program—the Colorado Health Care
Affordability and Sustainability Enterprise (CHASE). The enterprise

2
charges the CHASE Fee, which is used to provide some similar services
as the HPF, along with the provision of new services to hospitals.

The TABOR Foundation initiated this suit in 2015 to challenge

the HPF as violating TABOR for being a tax implemented without a
popular vote. In 2017, the Foundation amended its complaint to
additionally challenge the CHASE Fee as violating TABOR on the same
grounds. It also asserted that SB 17-267 violated the single subject
requirement, and that the TABOR cap should have been lowered.
The parties presented arguments and evidence to the court, and
jointly moved for summary judgment. The trial court granted summary
judgment to the defendants on all counts, finding that the Hospital
Provider Fee and CHASE Fee are fees and not taxes, that the TABOR
cap was not subject to downward adjustment, and the SB 17-267 did not
violate the constitutional single subject requirement. The court thus
dismissed the case with prejudice.

B. Judgment being appealed and basis for

jurisdiction.

The State Defendants cross appeal section I of the district court’s

March 5, 2019 order, which found that all plaintiffs had standing to
bring the underlying action. A copy of the March 5 order is attached as

3
an appendix. This Court has jurisdiction pursuant to § 13-4-102(1),
C.R.S. This cross appeal is filed timely pursuant to C.A.R. 4(a).

C. Whether the Order resolved all issues pending

before the trial court including attorneys' fees
and costs.

The March 5 order resolved all issues pending before the district
court.

D. Whether the judgment was made final for

purposes of appeal pursuant to C.R.C.P. 54(b).

The March 5 order resolved all the claims between the parties,
and C.R.C.P. 54(b) is not applicable to this action.

E. The date the judgment or order was entered and

the date of mailing to counsel.

The March 5 order is dated March 5, 2019, and was served on all
counsel on that same date through the Colorado Courts E-Filing
System.

F. Extensions to file motions for post-trial relief.

None.

4
 G. The date any motion for post-trial relief was
filed.

None.

H. The date any motion for post-trial relief was

denied or deemed denied under C.R.C.P. 59(j).

None.

I. Extensions to file notices of appeal.

None.

II. An advisory listing of the issues to be raised on appeal.

Whether the district court erred in finding that the plaintiffs,

none of whom pay the challenged fees, had standing to bring this action.

III. Whether the transcript of any evidence taken before the

trial court or any administrative agency is necessary to
resolve the issues raised on appeal.

No evidence was taken by the district court in a hearing, and

accordingly no transcript is available.

IV. Whether the order on review was issued by a magistrate

where consent was necessary.

Not applicable.

5
V. The names of counsel for the parties, their addresses,
telephone numbers, e-mail addresses, and registration
numbers.

Appellees/Cross-Appellant State Defendants

W. Eric Kuhn
Senior Assistant Attorney General
Jennifer L. Weaver
First Assistant Attorney General
Colorado Department of Law
1300 Broadway, 6th Floor
Denver, CO 80203
Telephone: (720) 508-6143/6145
Fax: (720) 508-6015
Email: eric.kuhn@coag.gov / jennifer.weaver@coag.gov
Registration number: 38083 / 28882

Appellants/Cross-Appellees

John J. Vecchione
Lee A Steven
R. James Valvo, III
Cause of Action Institute
1875 Eye Street NW, Suite 800
Washington, DC 20006
Telephone: (202) 499-4232
Email: john.vecchione@causeofaction.org
lee.steven@causeofaction.org
james.valvo@causeofaction.org
Registration number: 73828 (VA) / 468543 (DC) / 85448 (VA)

6
 Steven J. Lechner
Lechner Law Firm, LLC
P.O. Box 351743
Westminster, CO 80035-1743
Telephone: (720) 936-8363
Email: steve@lechnerlawfirm.com
Registration number: 19853
Appellee/Intervenor

Sean R. Gallagher
Gerald A. Niederman
Bennett L. Cohen
1401 Lawrence Street, Suite 2300
Denver, CO 80202
Telephone: (303) 572-9300
Email: sgallgher@polsinelli.com
gniederman@polsinelli.com
bcohen@polsinelli.com
Registration number: 16863 / 12449 / 26511

VI. Appendix.

An appendix is attached to this Notice of Cross Appeal containing

a copy of the judgment and order being appealed. There were no

motions for new trial or for leave to proceed in forma pauperis.

7
Respectfully submitted this 23rd day of April, 2019.

PHILIP J. WEISER
Attorney General

s/ W. Eric Kuhn
W. ERIC KUHN, 38083*
Senior Assistant Attorney General
JENNIFER L. WEAVER, 28882*
First Assistant Attorney General
Health Care Unit
State Services Section
Attorneys for State Defendants
*Counsel of Record

8
 Certificate of Service
I certify that I have duly served the foregoing Notice of Cross

Appeal upon the following counsel electronically through the Colorado

Courts E-Filing System (CCE) and/or electronic mail this 23rd day of
April, 2019, at Denver, Colorado, as follows:

via email via CCE

John J. Vecchione Sean R. Gallagher

Lee A Steven Gerald A. Niederman
R. James Valvo, III Bennett L. Cohen
Cause of Action Institute 1401 Lawrence Street
1875 Eye Street NW, Suite 800 Suite 2300
Washington, DC 20006 Denver, CO 80202
john.vecchione@causeofaction.org sgallagher@polsinelli.com
lee.steven@causeofaction.org gniederman@polsinelli.com
james.valvo@causeofaction.org bcohen@polsinelli.com

via CCE Counsel for

Appellee/Intervenor
Steven J. Lechner
Lechner Law Firm, LLC
P.O. Box 351743
Westminster, CO 80035-1743
steve@lechnerlawfirm.com

Michael Francisco
Statecraft PLLC
620 N. Tejon Street, Suite 101
Colorado Springs, CO 80903
michael@statecraftlaw.com

9
Counsel for Appellants/Cross-
Appellees

s/ Leslie Bostwick
Leslie Bostwick

10