Recent Developments in Single Subject Requirement Case Law – Part II

By Jason Gelender

Editor’s Note: This is the second article in a three-part series on recent court decisions interpreting and applying the constitutional single subject requirement. The first article was posted July 11, 2019.

In part I of this series on developments in the case law interpreting the single subject requirement, we examined a recent case concerning the title of House Bill 18-1306 in which the Denver District Court decided that section 7 of the bill, added by amendment in the Senate, did not fit within the single subject expressed in the bill title. In part II of the series, we will consider another decision in a recent challenge to a bill enacted by the General Assembly.

TABOR Foundation et al. v. Colorado Dept. of Health Care Policy and Financing et al.,[1] involved a single subject challenge to Senate Bill 17-267 “Concerning the sustainability of rural Colorado.”[2] Unlike House Bill 18-1306, Senate Bill 17-267 was a lengthy (35 sections and 58 pages as enrolled), complex bill that did a number of things that were not closely and obviously connected. Among other things, Senate Bill 17-267:

  1. Repealed the hospital provider fee program;
  2. Created a new Colorado health care affordability and sustainability enterprise (CHASE) to administer a new healthcare affordability and sustainability fee program (CHASE program);
  3. Lowered the excess state revenues cap (the voter-approved statutory cap on the amount of TABOR revenue that the state may annually retain and spend) by $200 million for state fiscal year 2017-18 and by $200 million plus TABOR formula inflation adjustments for subsequent state fiscal years;
  4. Provided additional one-time funding for rural school districts;
  5. Required principal departments to submit reduced budget proposals to the Office of State Planning and Budgeting (OSPB) for state fiscal year 2018-19 and required the OSPB to strongly consider the proposals;
  6. Required the state to enter into up to $2 billion of lease-purchase agreements to fund transportation infrastructure and capital construction projects;
  7. Exempted retail marijuana sales that are subject to the state retail marijuana sales tax from the general state sales tax;
  8. Made the annual state payment of reimbursement to counties for property tax revenue lost due to the property tax exemption for qualifying seniors the first TABOR refund mechanism when TABOR refunds are required; and
  9. Increased the state retail marijuana sales tax rate to 15%.

In making their single subject challenge, the plaintiffs argued that, to satisfy the single subject requirement, “‘a bill must have one unifying subject and a purposive element or modification of that subject” and that “all substantive provisions of the bill must be dependent on or connected to that purpose or modification.”[3] But the Denver District Court rejected this proposed test for single subject requirement compliance, stating instead “that so long as the matters encompassed in the bill are necessarily and properly connected with each other rather than disconnected or incongruous, the single subject requirement of Section 21 is not violated.”[4]

The Denver District Court applied its stated test for single subject compliance in an order denying plaintiff’s motion for summary judgment and granting defendants’ cross-motion for summary judgment and defendant-intervenor’s[5] motion for summary judgment. The court concluded that Senate Bill 17-267 satisfied the single-subject requirement because:

  • The “general and broad” title of the bill (Concerning the Sustainability of Rural Colorado) does not indicate a single subject violation but instead is “the preferred practice” and, furthermore, was not shown in any way by plaintiffs to have actually misled any legislators or confused any citizen witnesses regarding the contents of the bill;
  • After reviewing all of the provisions of the bill, including nonsubstantive legislative declarations that indicated the General Assembly’s intention to “address a number of issues affecting rural Colorado, some of which undeniably also affected other parts of the state,” all of the provisions “relate to the subject of the sustainability of rural Colorado, are necessarily or properly connected with each other, and none are disconnected or incongruous.” Specifically the court concluded that:
    • The fourteen sections of the bill relating to the repeal of the hospital provider fee program and the creation of the CHASE and the CHASE program all related to the sustainability of rural Colorado by addressing “proposed cuts to the [hospital provider fee p]rogram that would have disproportionately impacted rural Colorado and rural hospitals in particular;”
    • Provisions of the bill concerning retail marijuana taxes, the provision of one-time funding for rural school districts, and highway funding, some of which the bill specifically redirected for rural highways, “addressed other issues impacting rural Colorado[;]” and
    • Provisions of the bill addressing business and personal property credits, as well as the property tax exemption for qualifying seniors, “disproportionately benefit rural Colorado” because of its slower “economic recovery following the Great recession compared to urban areas” and its older population compared to urban areas.[6]

What can we learn from the Denver District Court’s order in TABOR Foundation?

  • First, and in contrast to a bill with a narrow title, if a bill has a broad general title, there is a good chance that it will withstand a single subject challenge even if it includes many provisions that are not closely and obviously connected on their face. So long as each provision of the bill plausibly relates to the broad general subject expressed in the title and furthers the bill’s main purpose, the bill is likely to satisfy the single subject requirement even if some of its provisions also address matters that are not clearly identified by the title.
  • Second, and especially when contrasted with Arapahoe Cnty. Sch. Dist. No. 1 et al. v. Colorado, discussed in part I of this series, the benefit of a broad general title is that it puts legislators and the general public on notice that a bill may contain provisions that cover a lot of ground and that the bill should therefore be closely examined by anyone who wants to know what those provisions are. In this way, one of the main evils that the single subject requirement is intended to mitigate, legislator and public deception and confusion regarding the contents of a bill, can be avoided.
  • Third, if a bill is drafted with a broad general title, it likely can safely be amended in a wide variety of ways; only amendments that do not plausibly relate at all to the title or the general purpose of the bill and therefore are likely to lead to legislator or public surprise and confusion regarding the contents of the bill are likely to be at risk if subjected to a single subject challenge. A bill sponsor who wishes to limit amendments should therefore think carefully before introducing a bill with a title that is broader and more general than necessary to encompass its provisions within its clearly expressed single subject.

The plaintiffs have appealed the Denver District’s Court’s order in TABOR Foundation, and their opening brief must be filed by August 7, 2019.


[1] Case No. 15CV32305 (Denver Dist. Ct.).

[2] The plaintiffs also alleged that certain provisions of Senate Bill 17-267 violated the Taxpayer’s Bill of Rights (TABOR)

[3] Order re: parties motions for summary judgment (March 5, 2019), at 40. (court order quoting plaintiffs’ argument as made in plaintiffs’ briefs).

[4] Id. at 42.

[5] The Colorado Hospital Association, which had advocated for the provisions of Senate Bill 17-267 that repealed the hospital provider fee program and created the CHASE and the CHASE program, was the defendant-intervenor.

[6] Id. at 42-47.