Voters and their representatives make laws. Judges are only to interpret them. Apple pie and baseball are less American than this legal principle underlying the balance of power.

Given the interpretive role of a judge, which no serious legal scholar would dispute, a recent decision by 4th Judicial District Judge Thomas Kane raised red flags.

Kane this month dismissed a lawsuit filed last year by Douglas Bruce, who petitioned the court to force El Paso County to refund nearly $4.5 million to taxpayers. At issue is the county’s collection of revenues exceeding estimates stated on the ballot language of a tax increase voters approved in 2012.

Ballot question 1A opened with this: “Shall El Paso County taxes be increased by approximately $17 million annually to directly fund the urgent public safety needs…”

In its first year, the tax brought in revenues closer to $18 million because the economy improved. In 2016, the tax collected $22 million – a substantial surplus above the estimate, even if adjusted for inflation.

Bruce petitioned the court to enforce the Colorado Constitution. It plainly demands return of revenues, exceeding estimates, to taxpayers.

Bruce wrote the Constitution’s amendment known as the Taxpayer’s Bill of Rights, or TABOR. Voters adopted it statewide in 1992. Nothing about the refund provision can be unclear to a judge or anyone else. Article X, Section 20 (c) of the Constitution states:

“Except by later voter approval, if a tax increase or fiscal year spending exceeds any estimate for the same fiscal year, the tax increase is thereafter reduced up to 100% in proportion to the combined dollar excess, and the combined excess revenue refunded…”

Key phrase: “exceeds any estimate…”

County spokesman Dave Rose defended the dismissal, saying the county “made a good faith effort” to estimate revenue, and county officials had “no way of knowing” how much more revenue the recovery would produce.

The law doesn’t excuse estimates made in “good faith.” It doesn’t say estimates made with without a crystal ball. One cannot honestly construe any part of the refund law as vague. Given those considerations, the Bruce complaint appeared to have merit. We planned to defend it, without regard for anyone’s opinion of Bruce, TABOR, or whatever good might come from retaining revenue for public safety. Our concern was for process and law.

Judge Kane invoked the will of voters to explain his decision. Not in reference to the 1992 TABOR vote, but the wording of 1A.

“In approving measure 1A, El Paso County voters voted to lift all revenue and spending limitations contained in TABOR from the revenue generated by the tax,” Kane wrote.

Really? We reviewed 2012’s ballot measure. Sure enough, voters did exactly that.

About 300 words below the $17 million estimate, the question authorizes county government to use “all revenues generated and the earnings on such revenue to be spent each year without limitation by the revenue and spending limits of… article X, section 20.”

That means voters “de-Bruced” the tax.

Voters may have intended to raise $17 million. It does not matter. They enacted a law that gives government control over any amount raised, “without limitation.” Judge Kane did his job, without passion or prejudice. He upheld a law voters approved.

The Gazette editorial board