Colorado LegiSource

An informational and educational resource for the Colorado General Assembly by the Office of Legislative Legal Services.

Category: Court Cases – Opinions

  • Does the Colorado Constitution Prohibit Benevolent Legislation? [Part 2]

    by Jery Payne

    If you haven’t read the May 14th post , you will probably need to read it to make sense of this week’s post. But for a quick reminder: In the late 19th century, the Colorado Supreme Court struck down legislation that provided monetary relief for farmers because it violated section 34 of article V of the state constitution. This section prevents appropriations to persons that are not under the state’s control. In the late 20th century, the Colorado Supreme Court upheld legislation that provided monetary incentives for airlines to locate their headquarters in Colorado, even though these airlines were not under the state’s control. What changed? The Colorado Supreme Court developed the public-purpose doctrine, which we will explore this week.

    In Bedford v. White, the court first articulated, in 1940, the public-purpose doctrine. The General Assembly had provided pensions for retired public servants, including judges. State Auditor Homer Bedford was concerned because pensions are appropriations for people who have retired from the state, so these people are no longer under the control of the state. Pensions appear to fall squarely within the holding of the farmer-relief case. When the two retired justices Harrison White and John Adams asked for their pensions, the state auditor refused to issue vouchers for the pension. The justices sued the state auditor. This case presented the issue of section 34’s prohibition squarely before the court.

    The opinion wrestles with the fact that invalidating the pensions would really hurt the state’s ability to attract high-quality judges and employees: “[P]ensions, generally, are not considered donations or gratuities but inducements to continued service.” After all, a typical justice could probably make more income in private practice. And given that firefighters and peace officers can die in the line of duty, the state would have a harder time with recruitment unless it promised to take care of their families. Because pensions are not charity, the court didn’t believe that section 34 was really intended to forbid pensions.

    The court also realized just how far reaching the holding would be: “In recent years legislation providing for pensions and retirement compensation to large numbers of persons after their retirement from service as public officers, servants, employees, and agents of the state has been enacted by the General Assembly.” And then, realizing that the opinion was going far afield from the facts presented, they made excuses for bringing it up:

    We are aware of the fact that the rights of none of these classes are directly involved or may be determined in this suit. We mention them merely as instances of the possible far reaching effect of the construction of these two sections of the Constitution contended for by [the state auditor] in this case.

    Yet the holding in the farmer-relief case appears to apply to pensions, which benevolently pay persons not under absolute state control. (Is the state’s control over anybody absolute?) In all this wrestling with the potential reach of section 34, the court realized that the decision in the farmer-relief case went too far.

    Therefore, the court narrowed section 34 from its broad interpretation in the famer-relief case. The court held that section 34 does not prohibit appropriations that serve a public good or purpose:

    If a pension has no reasonable relation to the public good it is of course a mere private grant and void. But if it serves a present public purpose it is not a mere private grant even though as an incident to the accomplishment of the public purpose the recipients thereof may be personally benefitted.

    So the court upheld the pensions because they serve the public good.

    During the 20th century, the Colorado Supreme Court developed the public purpose doctrine because a broad, substantive reading of section 34 is a monster that could swallow any act. Each act is passed, at least in the mind of the act’s sponsor, for benevolent purposes. (Yes, a legislator could sponsor an act for malevolent purposes, say for revenge, but how likely is that act to pass unless the sponsor can at least articulate a benevolent purpose?) The law against murder serves the benevolent purpose of protecting people. And an appropriation is required to enforce the law against murder. Therefore, the law against murder requires an appropriation that benefits the small group of people who would otherwise die and who are not controlled by the state.

    Faced with this dilemma, the court developed a way to harmonize section 34 with the General Assembly’s ability to pass any appropriation: the public purpose doctrine. If the narrow reading is too narrow and the broad reading is too broad, the public purpose doctrine is the Goldilocks position; it’s a compromise. The idea is that an act is legitimate if it is for the public good rather than for private gain. The only type of act that would run afoul of this prohibition would appear to be an act that a court finds has a significant private gain with little or no public benefit. An act that has the appearance of corruption would probably fit this description, but appropriations made for a legitimate public purpose should not run afoul of section 34.

  • Does the Colorado Constitution Prohibit Benevolent Legislation? [Part 1]

    By Jery Payne

    Toward the end of the 19th century, some farmers moved to an area in the eastern plains of Colorado then known as the “the rain belt region.” The name was a bit optimistic. Due to a drought, the farmers lost their crops. The General Assembly passed a relief act, which provided for the purchase of seeds and grain for the farmers. Attorney General Byron Rogers was concerned that the act violated section 34 of article V of the Constitution of Colorado.

    So the attorney general asked Governor Albert McIntire to submit interrogatories to the Colorado Supreme Court. In a case titled In re Relief Bills, the court held that:

    We think it is clear that the state cannot, in its sovereign capacity, extend aid for charitable, industrial, educational or benevolent purposes to any person, corporation or community, unless such person, corporation or community is under the absolute control of the state.

    Toward the end of the 20th century, Governor Roy Romer called a special session to pass legislation creating incentives for airlines to place operations in Colorado—specifically, United Airlines was considering placing a maintenance facility in Colorado. The General Assembly passed an incentive act, which provided for building airport facilities to accommodate United’s planned expansion. The governor was concerned that the bill might violate section 34.

    So the governor submitted interrogatories to the Colorado Supreme Court. In a case titled In re Interrogatory Propounded by Governor Roy Romer on House Bill 91S-1005, the court held: “We conclude that, on its face, [the act] does not violate article V, section 34.”

    What a difference a century makes! Let’s look at the language of section 34:

         Section 34. Appropriations to private institutions forbidden. No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association.

    Both acts made appropriations. Both acts apply to the forbidden categories: charitable, industrial, educational or benevolent. The first act was for charitable and benevolent purposes; the second act was for industrial and benevolent purposes. Both acts spent the money for a covered entity: a person, corporation, or community. And finally, neither farmers nor airlines are under the absolute control of the state. So far, the two cases both fall under section 34.

    I’ll bet I know what some of you are thinking: Neither of these cases falls under section 34 because in both cases, the appropriation was made for, not to, the farmers and the airline. The words to and for don’t mean the same thing. Therefore, an appropriation must be made to state agencies, and then the state agencies may spend the money for charitable, industrial, educational, or benevolent purposes. This narrow reading is procedural rather than substantive. The Colorado Supreme Court, however, has not adopted the narrow procedural reading. In 1895, the court struck down the farmer’s relief act, which didn’t actually appropriate the money to the farmers. And although the court upheld the airlines incentive act, the court didn’t uphold the act by distinguishing between the words to and for. Instead, the court’s holding is based on the public purpose doctrine:

    [T]he legislation must evince a discrete and particularized public purpose which, when measured against the proscription of Article V, Section 34, preponderates over any individual interests incidentally served by the statutory program.

    The court has drawn a distinction between appropriations made for the good of the state versus appropriations made for the good of a smaller group. Of course, the second case’s appropriation was made to help the small group of airline companies. The act, however, helpfully explains that the “health, safety, and welfare of the people of this state are dependent upon the continued encouragement, development, and expansion of opportunities for employment in the private sector….” In other words, an airline placing an operation within Colorado would bring jobs. Specifically, the act requires the new operation to employ 3,000 people with an average salary of at least $45,000. That many jobs would increase tax revenue, lower social welfare spending, have social benefits, etc. Therefore, the public purpose of more jobs outweighs the private interests of helping an airline.

    A case can be made that the farmer-relief act wasn’t only charity. It gave the farmers the seeds and grains they needed to grow more food. Everyone in Colorado eats food, so the public would benefit from a greater supply of food. And because farmers grow food from seeds and grain, farmers can’t do the job of farming without seeds or grain. So giving seeds and grain to farmers is an inexpensive way to increase jobs. If more jobs justify helping out an airline, why wouldn’t more jobs and more food justify helping out farmers? Did the act’s proponents fail to argue the case well? Did the court decide that, in this case, the private purpose outweighed the public purpose?

    No. The court didn’t decide the farmer­-relief case based on the public purpose doctrine. The court didn’t rest its holding on the basis of the act’s private purpose. The court simply held that the “state cannot … extend aid for charitable, industrial, educational or benevolent purposes to any person….” It was a blanket substantive prohibition.

    In two weeks, I’ll explain what happened between these two cases.

  • United States Supreme Court Equates Annotators to Legislators and Judges

    By Michele Brown

    In a case that began in Georgia in 2017, the U.S. Supreme Court concluded last Monday that copyright protection for original works of authorship does not extend to the annotations included in Georgia’s official annotated code.

    As background, the State of Georgia sued Public.resource.org (PRO) after PRO purchased a copy of the Official Code of Georgia Annotated (OCGA) and posted it online in its entirety. The District Court for the Northern District of Georgia determined that the Georgia statutory annotations were, in fact, original works entitled to broad copyright protection.

    However, PRO, an organization whose mission is to increase access to government materials, appealed that ruling to the U.S. Court of Appeals for the Eleventh Circuit (Eleventh Circuit). The question before the Eleventh Circuit was whether to treat the annotations in the OCGA in the same manner under copyright law as a legislative enactment or a judicial opinion. It is uncontested that legislative enactments and judicial opinions are not copyrightable, because they represent the exercise of sovereign power and are therefore considered part of the public domain. This policy is referred to as the government edicts doctrine. In October of 2018, the Eleventh Circuit concluded that the OCGA annotations were sufficiently “law-like” to be regarded as a sovereign work and therefore not copyrightable. For more in-depth explanations of the facts and issues in this case, see our earlier LegiSource articles published April 2017 and December 2019.

    Georgia appealed that ruling to the highest court and, on April 27, the Supreme Court released its 5-4 decision, split along unusual lines. Chief Justice John Roberts wrote the majority opinion, joined by Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh.

    The Supreme Court upheld the decision of the Eleventh Circuit but for different reasons.  Instead of examining whether written material carries “the force of law,” the Court instead focused on whether the author of the work is a judge or a legislator, observing that, whatever work that judge or legislator produces in the course of judicial or legislative duties is not copyrightable. Under the government edicts doctrine, judges and legislators are not considered the authors of the works they produce in the course of their official duties as judges and legislators. That rule applies regardless of whether the written material carries the force of law. And, according to the Court’s majority opinion, it applies to the annotations because they are authored by an arm of the legislature in the course of its official duties.

    Justice Clarence Thomas dissented, joined by Justice Samuel Alito and for the most part by Justice Stephen Breyer, arguing that Georgia’s annotations do not purport to embody the will of the People because they are not the law. Georgia’s General Assembly does not enact statutory annotations under its legislative power.

    The core question for Justice Ruth Bader Ginsberg, joined in her dissent by Justice Breyer, was whether Georgia’s annotations are created in a legislative capacity. Her answer? “No.” The role of the legislature encompasses the process of making laws—not construing statutes after their enactment. Justice Ginsberg observed that annotating begins only after lawmaking ends. In her view, annotations are descriptive rather than prescriptive, and they merely provide the public with convenient references.

    As noted in a previous LegiSource article, the outcome of this case does not directly affect Colorado. In 2016, the Committee on Legal Services suspended the practice of copyrighting the annotations to the Colorado Revised Statutes. The Committee recognized that, unlike most states, Colorado’s nonpartisan legislative staff in the Office of Legislative Legal Services writes the annotations. Because the annotations are the product of state-paid legislative staff and are available at no cost on the Colorado General Assembly’s public access website, the Committee elected to suspend the historical practice of registering a copyright in the editorial work of the legislative staff, including the annotations.

  • Statutory Annotations Take Center Stage Before the U.S. Supreme Court

    By Jennifer Gilroy

    To listen to the news you would think the U.S. Supreme Court was concerned only with Second Amendment rights in hearing oral arguments last Monday. But they actually saved some energy for a vigorous discussion about copyrighting the annotations to state statutes.

    As we explained in LegiSource in April of 2017 (it takes a while for a case to wend its way from the trial court to the U.S. Supreme Court), while the text of the statutes is not copyrightable, most parts of the federal and state codes are accompanied by “ancillary works” such as editor’s notes, source notes, and, most substantively, annotations that summarize appellate court cases interpreting the statutes. Up to now, most states have routinely filed a copyright on these writings, recognizing them as original, individual expressions that have a “modicum of creativity” (the general standard for copyrighting material). But now, the assumption that these writings are copyrightable is called into question.

    Our earlier article explained that the State of Georgia sued Public.resource.org (PRO) after it purchased a copy of the Official Code of Georgia Annotated (OCGA) and posted it, in its entirety, online. Georgia claimed this posting infringed on Georgia’s copyright of the annotations.[1] As explained in the earlier article, Georgia successfully defended against PRO’s motion for summary judgment in the case pending before the District Court for the Northern District of Georgia. The District Court determined that the Georgia statutory annotations are, in fact, original works entitled to broad copyright protection.

    PRO, an organization whose mission is to increase access to government materials, appealed that ruling to the U.S. Court of Appeals for the Eleventh Circuit (Eleventh Circuit). The question before the Eleventh Circuit was whether it should treat the annotations in the OCGA in the same manner under copyright law as a legislative enactment or a judicial opinion. It is uncontested that legislative enactments and judicial opinions are not copyrightable because they represent the exercise of sovereign power. Because they are written by the People’s representatives, they are in effect written by the People and are therefore part of the public domain. This policy is referred to as the government edicts doctrine.

    In October of 2018, the Eleventh Circuit observed that the issue before it was a “close one,” acknowledging that there were important considerations of public policy at stake on both sides. Ultimately, however, it concluded that the annotations in the OCGA were sufficiently “law-like” to be regarded as a sovereign work and therefore not copyrightable. In reaching this conclusion, the Eleventh Circuit stated that: The annotations clearly had authoritative weight in explicating and establishing the meaning and effect of Georgia’s law; the procedures by which the annotations were incorporated in the OCGA bore the hallmarks of legislative process, namely bicameralism and presentment; and Lexis, with which the Georgia Code Revision Commission contracted to draft the annotations, did so pursuant to highly detailed instructions set out in the contract.

    Last March, the state of Georgia petitioned the United States Supreme Court (the Court) for a writ of certiorari, posing the question whether the government edicts doctrine extends to, and thus renders uncopyrightable, works that lack the force of law such as the annotations in the OCGA. The Court granted Georgia’s petition. Over the spring, summer, and fall, there were 33 amicus briefs filed. The amicus brief filed by Lexis even included a citation to the April 2017 LegiSource article. After the briefing schedule concluded, the Court heard oral arguments on December 2nd. We anxiously await the Court’s ruling likely sometime before June next year.

    However, as explained in the previous article, the outcome of the case will not directly affect Colorado. In 2016, the Committee on Legal Services suspended the practice of copyrighting the annotations to the Colorado Revised Statutes. The Committee recognized that, unlike most states, Colorado’s nonpartisan staff in the Office of Legislative Legal Services writes the annotations. Because the annotations are the product of state-paid legislative staff and are made freely available on the Colorado General Assembly’s public access website, the Committee decided a copyright was not appropriate.

     

    [1] For purposes of this case, “annotations” includes “history lines, repeal lines, cross references, commentaries, case notations, editor’s notes, excerpts from law review articles, summaries of opinions of the Attorney General of Georgia, summaries of advisory opinions of the State Bar, and other research references.”

  • Recent Developments in Single Subject Requirement Case Law – Part III

    By Jason Gelender

    Editor’s Note: This is the third 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, and the second article was posted July 25, 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 examined a recent case concerning a single-subject challenge to a lengthier and more complex bill, Senate Bill 17-267, “Concerning the sustainability of rural Colorado”, in which the Denver District Court decided that the bill did not violate the single-subject requirement.

    In this article, we examine a recent Colorado Supreme Court case, In re Title, Ballot Title, and Submission Clause for 2019-20 #3,[1] in which the court held that a proposed initiative to repeal the Taxpayer’s Bill of Rights (TABOR)[2] in its entirety has a single subject. Article V, section 1 (5.5) of the Colorado constitution requires every proposed initiative to have a single subject, which must be clearly expressed in its title. Consequently, before setting a title for a proposed initiative, the Title Board[3], must first find that the proposed initiative has a single subject.[4]

    Initiative proponents proposed initiative 2019-20 #3 (initiative #3), to repeal the Taxpayer’s Bill of Rights (TABOR) in its entirety. Initiative #3 is structured as a “simple repeal” that does not include the full text of TABOR in strike type but instead simply states: “In the constitution of the state of Colorado, repeal section 20 of article X.” The Title Board concluded that initiative #3 does not have a single subject and that therefore the board lacked jurisdiction to set a title. In making this conclusion, the Title Board relied on cases in which the Colorado Supreme Court had indicated that (1) TABOR includes multiple subjects and (2) a proposed initiative to repeal a constitutional provision that includes multiple subjects itself includes multiple subjects. Proponents filed a motion for rehearing, but the Title Board denied the motion and again declined to set a title. Proponents appealed.[5]

    The Colorado Supreme Court reversed the title board and remanded initiative #3 back to the Title Board for title setting, holding that initiative #3 contains a single subject: the repeal of TABOR. The court first noted, as it had in prior cases, that the single-subject requirement serves the following functions:

    • Forbidding the treatment of incongruous subjects in the same measure, especially the practice of putting together in one measure subjects having no necessary or proper connection, for the purpose of enlisting in support of the measure the advocates of each measure, and thus securing the enactment of measures that could not be carried upon their own individual merits (e., preventing “logrolling”); and
    • Preventing surreptitious measures and apprising the people of the subject of each measure by the title to prevent surprise and fraud from being practiced upon voters.

    The court then concluded that initiative #3 satisfies both functions and therefore has a single subject because it “effectuates one and only one general objective or purpose, namely the repeal of TABOR … and could not be written more simply or directly. It essentially asks voters a single question: should TABOR be repealed in full?”

    The court acknowledged that it had stated in multiple prior cases that if a constitutional provision contains multiple subjects, then a proposed initiative to repeal the entire provision also contains multiple subjects. But the court then characterized those statements as nonbinding “dicta” that lacked underlying analysis. The court specifically distinguished In re Proposed Initiative 1996-4,[6] a case in which the court had concluded that a proposed initiative that would have repealed and reenacted certain individual provisions of TABOR had multiple subjects, from the total repeal of TABOR, without reenactment of any provisions, proposed by initiative #3. The court then declined to adopt the “dicta” for the following reasons:

    • “[A] one-sentence initiative asking voters to decide if a constitutional provision should be repealed meets all of the requirements of a single subject[;]”
    • There is “no basis for creating … a unique single-subject rule for efforts to repeal constitutional provisions, whether or not such provisions contain multiple subjects[;]” and
    • “[C]oncluding that an initiative [to repeal a constitutional provision] contains multiple subjects merely because the targeted provision contained multiple subjects effectively makes the original provision impervious to challenge.”

    Having declined to adopt the “dicta,” the court concluded that initiative #3 satisfied the single subject requirement.

    In a dissenting opinion, two justices rejected the majority of the court’s characterization as “dicta” of the court’s prior statements that TABOR includes multiple subjects and that an initiative proposing to repeal a constitutional provision that includes multiple subjects itself includes multiple subjects. The dissenters concluded that initiative #3 includes multiple subjects because:

    • The single subject requirement applies to all initiatives, including those that only repeal existing constitutional provisions;
    • TABOR includes multiple subjects because (1) the court actually held in In re Proposed Initiative 1996-4, that the initiative’s proposed repeal of specified portions of TABOR itself violated the single-subject requirement even without consideration of the initiative’s proposed reenactment of some of the provisions, (2) the court later relied on that holding in other cases, and (3) if a partial repeal of TABOR violates the single-subject rule, it is logically impossible that a full repeal of TABOR does not;
    • The constitutional single subject requirement for initiatives was adopted in 1994 in response to the adoption of TABOR for the purpose of preventing multiple-subject initiatives like TABOR from being placed on the ballot in the future, and allowing initiative #3 to appear on the ballot is thus “directly contrary to the intent of the single subject requirement[;]” and
    • Case law has consistently held that a proposed initiative to repeal a multiple-subject constitutional provision violates the single subject requirement, and the majority had no justification to overrule that case law.

    What can we learn from the decision?

    • First, the decision establishes that a proposed initiative to repeal TABOR in its entirety and do nothing else has a single subject.
    • Second, the decision strongly suggests, notwithstanding the court’s explicit statement that it “is not adopting an exception to the single subject rule for repeal measures,” that a proposed initiative that does nothing more than repeal a discretely identified constitutional or statutory provision has a single subject even if the provision to be repealed is complex and might itself include multiple subjects. This seems especially likely to be true if the entire provision was enacted at the same time.
    • Third, beyond the first and second points, the decision may raise more questions than it answers. For example:
      • If a proposed initiative to repeal a constitutional provision in its entirety has a single subject, does a proposed initiative that repeals only a portion of the provision (and does nothing else) necessarily also have a single subject? Two days after the court’s decision in In re Title, Ballot Title, and Submission Clause for 2019-20 #3, the Title Board considered whether proposed initiative 2019-20 #84, which proposed the partial repeal of TABOR, had a single subject. A majority of the Title Board concluded that initiative #84 contained multiple subjects because it was not a simple repeal of all of TABOR as a single constitutional provision while the dissenting Title Board member argued that initiative #84 had a single subject because #3 has a single subject and it includes everything that initiative #84 includes and more. The proponents of initiative #84 did not appeal the denial of title.
      • If a proposed initiative proposes the simple repeal of multiple consecutive constitutional or statutory sections that were all enacted together, does it automatically have a single subject regardless of the breadth or complexity of the provisions? For example, does an initiative that states “In the constitution of the state of Colorado, repeal sections 1 to 16 of article II.” (a repeal of the first 16 sections of the state bill of rights, all of which were adopted simultaneously in 1876 and have not been amended since) have a single subject?
      • Does the decision elevate form over substance? For example, if a proposed initiative proposes to repeal TABOR just like initiative #3 does but, instead of proposing a “simple repeal,” shows the full text of TABOR in strike type, could the measure contain multiple subjects because it could have been “written more simply or directly” and might confuse voters with a wall of text?

    Stay tuned for future clarification regarding the single-subject rule as the Title Board will likely have to wrestle with the questions raised by the decision, applying the decision to the best of its ability, and the Colorado Supreme Court will have to assess the merits of the Title Board’s efforts.

     

    [1] 2019 CO 57, 442 P.3d 867.

    [2] Colo. Const. art X, sec. 20.

    [3] The Title Board is a three-member statutory board consisting of designees of the Secretary of State, the Attorney General, and the Director of the Office of Legislative Legal Services that is charged with setting “a proper fair title” for each proposed initiative. 1-40-106 (1), C.R.S.

    [4] Section 1-40-106 (1), C.R.S. See section 1-40-106.5 (3), C.R.S.

    [5] Appeals of Title Board decisions are made directly to the Colorado Supreme Court. Section 1-40-107 (2), C.R.S.

    [6] 916 P.2d 528 (Colo. 1996).

  • 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.

  • Recent Developments in Single Subject Requirement Case Law – Part I

    By Jason Gelender

    The single subject requirement of the Colorado constitution prohibits bills enacted by the General Assembly, constitutional amendments submitted for a vote of the people by the General Assembly, and initiated statutory changes and constitutional amendments from addressing more than one subject. While three distinct constitutional provisions separately prescribe the rule for bills, referred constitutional amendments, and initiatives, they all respectively state that a bill, referred constitutional amendment or initiative cannot “contain more than one subject, which shall be clearly expressed in its title, but if any subject shall be embraced in [the bill, referred constitutional amendment, or initiative] which shall not be expressed in the title, [it] shall be void only as to so much thereof as shall not be so expressed.” [1]

    Most of the single subject case law from the last quarter century addresses proposed initiatives and is generated when the Colorado Supreme Court considers appeals of Title Board decisions.[2] But two recent single-subject challenges to bills enacted by the General Assembly have yielded interesting and informative, albeit not precedentially binding, Denver District Court decisions. One case involves a successful challenge to a bill that was not especially lengthy, complex, or broad in its scope; the other case involves a thus far unsuccessful challenge to a bill that was lengthy, complex, and broad in its scope.

    This post, which is the first of a three-post series on recent developments in single subject case law, examines the first of those two decisions. The second post will examine the second of those decisions, and the third post in the series will examine the Colorado Supreme Court’s recent decision holding that a proposed initiative to repeal the Taxpayer’s Bill of Rights (TABOR) contains a single subject.

    The first case, Arapahoe Cnty. Sch. Dist. No. 1 et al. v. Colorado,[3] involved a single subject challenge to House Bill 18-1306, “Concerning ensuring education stability for students in out-of-home placement, and, in connection therewith, making an appropriation.” House Bill 18-1306 contained six substantive sections;[4] the plaintiffs alleged that section 7 of the bill violated the single subject requirement. Section 7, which was added to the bill in the Senate, eliminated a requirement that a school district that wishes to furnish transportation to a child who resides in another school district first obtain the approval of the school district in which the child resides. The plaintiffs contended that it violated the single subject requirement because, unlike the other substantive provisions of the bill, it did not apply only to “students in out-of-home placement.” The Denver District Court agreed with the Plaintiffs. In an order granting their motion for summary judgment, the court declared “[s]ection 7 of House Bill 18-1306 … to be void and of no effect” on the grounds that:

    • The “modern application” of the single subject requirement “requires an act and its title [(1) to] notify the public and legislators of pending bills so that all may participate; (2) to make the passage of each legislative proposal dependent on its own merits; and (3) to enable the governor to consider each single subject of legislation separately in determining whether to exercise veto power;”
    • The title of the bill “is not general,” but instead “is narrow in its focus, specifically ‘out of home’ placed students;”
    • The title therefore did not provide proper notice to the General Assembly or the public that section 7 of the bill modified “transportation for all students, in all school districts, without any restrictions or qualifications;”
    • Because section 7 of the bill was identical to language that had been included in a different bill, Senate Bill 18-228, which the General Assembly had postponed indefinitely, section 7 could not have passed on its own merits and its inclusion in the bill was “logrolling;” and
    • The addition of section 7 to the bill deprived the Governor of the opportunity to consider the remainder of the bill, all of which had a necessary and proper connection to the narrow single subject of ensuring educational stability for out-of-home-placed students, separately from section 7.[5]

    The state initially planned to appeal the order granting plaintiffs’ motion for summary judgment, but the General Assembly rendered the appeal moot by enacting Senate Bill 19-039, which restored the district of residency approval requirement that the voided section 7 of House Bill 18-1306 had sought to eliminate.

    What can we learn from the Denver District Court’s Order in Arapahoe Cnty. Sch. Dist. No. 1?

    • First, legislators, bill drafters, and anybody else who happens to get involved in the drafting of a bill should make sure to carefully consider and review the scope of the bill’s title before the bill is introduced. House Bill 18-1306 did not fail to meet the single subject requirement because it was a lengthy or complex “omnibus” bill that addressed a myriad of matters that could not reasonably fit under even a broad title. It failed because the title was drafted too narrowly to encompass all of its provisions, specifically a provision that was added by amendment, which a broader title could have encompassed.
    • Second, there is a real risk that a provision that actually relates to the single subject of a bill will nonetheless be found to create a second subject if the provision also relates to other matters. The issue with section 7 of House Bill 18-1306 wasn’t that it didn’t apply to students in out-of-home placement, but that it also applied to all other students. Again this risk can often be mitigated by drafting a bill with a broad general title.
    • Third, a narrow title remains a useful tool for limiting the scope of a bill and preventing the bill from being amended in a way that is contrary to the sponsors’ intentions. This tool is especially useful for a bill sponsor who knows, before a bill is introduced, exactly what the sponsor wants to accomplish and how it should be accomplished. But a narrow title does carry some risk if, after introduction, the policy goal of the bill or the means of achieving it change.

    In the next posting, we’ll discuss the lessons to be learned from the district court’s decision in TABOR Foundation et al. v. Colorado Dept. of Health Care Policy and Financing et al., which addressed a single subject challenge to Senate Bill 17-267, “Concerning the sustainability of rural Colorado.”

     

    [1] For general information about the single subject rule, see the Colorado LegiSource post titled “Single Subject Requirement Prevents a Multitude of Evils” (https://legisource.net/2012/12/06/single-subject-requirement-prevents-a-multitude-of-evils/)

    [2] Before a proposed initiative to change the Colorado Revised Statutes or amend the Colorado constitution can be circulated for signatures and placed on the ballot, the Title Board, a three-member statutory body composed of designees of the Secretary of State, the Attorney General, and the Office of Legislative Legal Services, must determine whether the measure satisfies the single subject requirement and, if it does, “designate and fix a proper fair title” for it. Sections 1-40-106 and 1-40-106.5, C.R.S. Appeals of Title Board decisions are made directly to the Colorado Supreme Court. Section 1-40-107 (2), C.R.S.

    [3] Case No. 2018CV32901 (Denver Dist. Ct.).

    [4] Sections 2 through 7 of the bill included substantive amendments to Colorado law, while section 1 contained a non-statutory legislative declaration, section 8 contained an appropriation, and section 9 was a standard “act subject to petition” clause.

    [5] Omnibus order re: plaintiffs’ motion for summary judgment, defendant’s motion for summary judgment, and defendant-intervenors’ motion for summary judgment (December 14, 2018).

  • Colorado Supreme Court Upholds New Sentences for Juvenile Offenders Serving Unconstitutional Mandatory Life Sentences Without the Possibility of Parole

    by Michael Dohr

    The Colorado Supreme Court recently had to decide whether Senate Bill 16-181, concerning the sentencing of persons convicted of class 1 felonies committed while the persons were juveniles, was unconstitutional because it violated the special legislation clause, Article 5, section 25 of the Colorado constitution. S.B. 16-181 is related to juvenile sentences that were determined to be unconstitutional based on two U.S. Supreme Court decisions.

    BACKGROUND

    In Colorado from July 1, 1990, to July 1, 2006, a juvenile convicted of a class 1 felony in a district court was sentenced to life in prison without the possibility of parole (LWOP). In 2012, the U.S. Supreme Court ruled that a mandatory LWOP sentence for a juvenile violated the Eighth Amendment’s prohibition on cruel and unusual punishment. Then, in 2016, the U.S. Supreme Court ruled that its decision applied retroactively. Together, these decisions invalidated the Colorado LWOP sentences for approximately 50 individuals.

    That created a problem for the Colorado courts that had to resentence those individuals, because there was no statutory guidance for what type of sentence could be imposed. Ultimately, the Colorado Supreme Court was forced to decide: What sentence range would the legislature have adopted if it knew an LWOP sentence was unconstitutional? In People v. Tate, the Colorado Supreme Court implored the legislature to address the issue. In 2016, the General Assembly did so by passing S.B. 16-181.

    S.B. 16-181 essentially creates two different sentencing ranges for those individuals serving the unconstitutional LWOP sentences. For those serving a sentence for a conviction of felony murder[1], the range is 30 to 50 years and for those serving a sentence for a conviction of another class 1 felony it is a life sentence with the possibility of parole after 40 years.

    Curtis Brooks was sentenced in 1997 to an LWOP sentence after being convicted of felony murder. Brooks sought resentencing of his unconstitutional sentence under the new sentencing scheme created in S.B. 16-181, asking the court to sentence him within the 30-to- 50-year range. The prosecution objected arguing the 30-to-50-year range violated the constitutional prohibition on special legislation. Originally, the district court agreed with the prosecution that the provision was unconstitutional, but then reversed itself on reconsideration. Before resentencing occurred, the prosecution appealed to the Colorado Supreme Court on the special legislation question.

    ANALYSIS

    The prosecution premised its claim on the fact that the sentencing provision had two different provisions, one for those who committed felony murder and one for those who committed any other class 1 felony. They argued that the felony murder sentencing provision was special legislation because it created a special class apart from everyone else subject to an unconstitutional LWOP sentence.

    The special legislation clause was enacted, in part, to prevent legislation that applies to some classes but not others without a reasonable basis for distinguishing them. It was also intended to curb favoritism on the part of the General Assembly, prevent the state government from interfering with local affairs, and preclude the legislature from passing unnecessary laws to fit limited circumstances. To determine if a statute is special legislation, there is a two-part inquiry. First, is the classification adopted by the legislature a genuine class or is it logically and factually limited to a class of one and thus illusory? If the class is illusory, then it is prohibited special legislation. If not, then the question is whether the classification is reasonable.

    The Colorado Supreme Court considered whether the classification the legislature created for those convicted of felony murder was genuine or illusory. First, it was estimated that the class in this case currently applies to at least 16 of the approximately 50 persons who are serving the unconstitutional LWOP sentence. The Court found that the class being larger than one favored a finding that it was genuine. Second, the Court found that the class was not limited by time, also suggesting it was genuine. Although there are currently at least 16 individuals in the class, an individual in the future who is convicted of felony murder for a cold case committed between 1990 and 2006 would also be subject to the classification. So, it was possible the class could expand beyond 16. Finally, the court analyzed the legislation and found that the legislature did not tailor the legislation to accomplish a particular purpose. Instead, the legislature was responding to fill the gap left by the U.S. Supreme Court’s determination that an LWOP sentence is unconstitutional. The Colorado Supreme Court found that the classification was genuine.

    That led the Court to consider whether the classification was reasonable. To determine whether the classification is reasonable, a court must consider whether there is a reasonable relationship between the legislation’s legitimate stated purpose and the classification. The Court found it reasonable to treat those who committed felony murder different from those who committed a different class 1 felony in two contexts. The legislature’s plenary authority allows it to adopt more severe penalties for conduct with more grave conduct and vice versa, so the legislature reasonably decided to treat those convicted of felony murder differently from those convicted of a different class 1 felony. The court also found it was reasonable for the legislature to create a different sentencing scheme for those convicted between 1990 and 2006 rather than just applying the current scheme to those individuals since the gap was created by the U.S. Supreme Court decisions. It was reasonable to create a different scheme for those individuals, because the individuals had already served a decade or more in prison and thus were in a unique position compared to a person convicted today.

    With these findings, the Colorado Supreme Court upheld the juvenile sentencing provision adopted in S.B. 16-181 against claims it is special legislation.

     

    [1] A person commits felony murder by committing or attempting to commit arson, robbery, burglary, kidnapping, sexual assault, or escape and in the course or furtherance of the crime or while in immediate flight therefrom the death of another person is caused. §18-3-102, C.R.S.

  • When More is More

    by Jery Payne

    A United States Court of Appeals’ opinion begins, “For want of a comma, we have this case.” The facts are simple. Delivery drivers employed by a Maine dairy company were suing for overtime. The dairy wasn’t paying them overtime, which they believed the law required.

    Whether the law required it was not so simple. The law states that the overtime protection law does not apply to:

    The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

    (1) Agricultural produce;

    (2) Meat and fish products; and

    (3) Perishable foods.

    The intent appears to be that overtime shouldn’t be required for jobs when dawdling might cause food to perish. The court was wrestling with whether this exemption covers delivery drivers.

    Is the phrase packing for shipment or distribution of one item or two items on the list? In other words, which of the following is exempted?

    • Packing for shipment and packing for distribution; or
    • Packing for shipment and any kind of distribution.

    The dairy argued that distribution of should be read as one item on the list. If the distribution of perishables is read as one item on the list, then the law doesn’t require the dairy to pay the delivery drivers overtime. But if the whole phrase packing for shipment or distribution of is meant to be read together, then the dairy owed the delivery drivers a lot of money.

    The statute has at least one of two grammar errors. Notice that the list starts with a series of gerunds, which is a five-dollar word for a noun created by adding “ing” to the end of a verb: canning, processing, preserving, freezing, drying, marketing, storing, packing. And distribution of isn’t a gerund. Because every other item on the list is a gerund, the grammar indicates that the phrase was intended to be one item, packing for shipping and distribution of. But if this is true, then the statute is missing the word “or” before the last item of the list. It should read marketing, storing, or packing for shipment or distribution of. And it doesn’t. So the statute should have been written in one of two ways:

    • …marketing, storing, or packing for shipment or distribution of:
    • …marketing, storing, packing for shipment, or distributing of:

    These dueling errors bedeviled the court, so it gave up trying to parse the sentence. It decided that the ambiguous exception should be read narrowly and ruled that the dairy had to pay the delivery drivers.

    As I mentioned, the court pointed out several times that an Oxford comma would have solved the issue. If the statute had read storing, packing for shipment, or distribution of perishables, it would have been clear that the statute covered the delivery drivers.

    So using the Oxford comma is good advice. We aim to use it in the Colorado Revised Statutes.

    But what if the legislature hadn’t intended to cover the delivery drivers? How could we draft the statute so that it is clear? What if we repeated the preposition of?

    The canning of, processing of, preserving of, freezing of, drying of, marketing of, storing of, or packing for shipment or distribution of:

    (1) Agricultural produce;

    (2) Meat and fish products; and

    (3) Perishable foods.

    Now the statute is clear.

    I bet I know what a lot of you are thinking: “We don’t need all those extra prepositions, of. Just don’t forget the disjunctive, or.” No, I suppose in this case we didn’t need the extra prepositions. But they do help. And what about the following statute[1] that authorized the defendants to move a case to federal court:

    Any officer of the United States or any agency thereof …

    Can any officer of any agency move the case to federal court? Or does the defendant have to be the agency itself? In other words, the list was ambiguous because it could be read either of these two ways:

    • An officer of the US or an officer of an agency of the US; or
    • An agency of the US or an officer of the US.

    The United States Supreme Court settled this issue by deciding that an officer of an agency could move the case. They decided that Congress meant an officer of an agency. If that is the correct intent, repeating the preposition of would have solved the issue:

    Any officer of the United States or of any agency thereof …

    I know that people will be tempted to dispense with the repetitious preposition in a list, but repeating those prepositions does remove ambiguity. My advice is to repeat those prepositions when clarity is at stake.

     

    [1] Hat tip to Bryan Garner from his Advanced Legal Drafting Course.

  • Wayfair Decision Changes Commerce Clause Jurisprudence

    by Esther van Mourik

    Loyal LegiSource readers are already experts in the Commerce Clause of the United States Constitution. (See: “United States Supreme Court Effectively Upholds Colorado Internet Sales Tax Law”) Well, this summer the United States Supreme Court (Supreme Court) issued an opinion that made significant changes in Commerce Clause jurisprudence!

    South Dakota v. Wayfair is a case about e-commerce, a term used to describe purchases made from online retailers like Amazon, Wayfair, eBay, Newegg, and countless others. As described in earlier articles, until the Wayfair decision, when you made a purchase from an online retailer and the online retailer did not have physical presence in your state of residence, your state’s revenue department was not allowed to require that retailer to collect the sales tax owed on that purchase. Instead, you were required to pay the tax (now called use tax) on those purchases yourself. Unsurprisingly, most people did not voluntarily remit the use taxes they owed.

    While states have nearly complete authority to tax commercial activities within their own borders, these broad taxing powers are subject to limitations in the United States Constitution when the commerce goes beyond the state’s borders. The Commerce Clause reserves to Congress the power to “regulate commerce . . . among the several states.” In general, a state law cannot discriminate against or unduly burden interstate commerce, even in the absence of federal legislation regulating the activity. In addition, a Supreme Court decision frequently referenced as “the Quill case” stood for the rule that states could not require retailers to collect the sales tax from consumers if the retailer did not have physical presence in the consumer’s state of residence.

    The Quill case was decided in 1992, well before the era of e-commerce as we know it now. Consequently, the physical presence requirement became a big hurdle for states seeking parity between online purchases and purchases made in local stores. Many people figured it made more sense to buy an item online and not be charged sales tax rather than purchasing the same item in a local store where the price reflects the sales tax owed (conveniently ignoring the use taxes that were still due). The lost sales tax revenue provoked many states to deal with this issue in two ways: first, through numerous attempts to seek congressional action (not successful); and second, by individual states passing legislation that challenged the physical presence requirement (a description of Colorado’s effort can be found here). In 2016, South Dakota took the most direct position, passing a law requiring a retailer without physical presence in the state to collect sales and use tax on purchases and services at the point of sale. The legislative declaration even described the bill as a direct challenge to the Quill case.

    Wayfair, Overstock, and Newegg sued South Dakota, arguing that the law was unconstitutional under the Commerce Clause. The South Dakota trial court found for the companies, and the South Dakota Supreme Court agreed, relying on the fact that the Quill case had not yet been overturned and still required physical presence in South Dakota before companies could be forced to collect the sales tax. South Dakota appealed to the Supreme Court. In its June 21, 2018, opinion, the Supreme Court overruled Quill, holding that “the physical presence rule, both as first formulated and as applied today, is an incorrect interpretation of the Commerce Clause.” This means that the South Dakota law is constitutional insofar as a company’s physical presence is no longer required. However, the case was remanded back to South Dakota to determine whether the law is discriminatory or an undue burden on interstate commerce.

    The Supreme Court stated, however, that, “South Dakota’s tax system includes several features that appear designed to prevent discrimination against or undue burdens upon interstate commerce.” The Court focused on the following three particulars:

    • The South Dakota law defined “retailer” as a business with annual gross sales revenue in the state exceeding $100,000 or having made 200 or more separate sales transactions in the state in a year;
    • The law was not retroactive; and
    • South Dakota had already adopted the Streamlined Sales and Use Tax Agreement.

    So where does this leave Colorado? The Colorado Department of Revenue (Department) recently moved toward requiring retailers without physical presence (out-of-state retailers) to collect state sales tax and the sales taxes levied by certain cities, counties, and special districts that are currently collected and distributed by the Department. In addition, the Department adopted emergency rules to assist in administering the sales tax collections and, among other things, to specify that the state’s collection requirement would not be retroactive and would apply to the same definition of retailer that South Dakota adopted.

    However, Colorado has not adopted the Streamlined Sales and Use Tax Agreement. In the Wayfair decision the Supreme Court described the agreement as follows:

    This system standardizes taxes to reduce administrative and compliance costs: It requires a single, state level tax administration, uniform definitions of products and services, simplified tax rate structures, and other uniform rules. It also provides sellers access to sales tax administration software paid for by the State. Sellers who choose to use such software are immune from audit liability.

    The Colorado Constitution provides home rule jurisdictions the full right of self-government in both local and municipal matters, including the “assessment of property in such city or town for municipal taxation and the levy and collection of taxes thereon for municipal purposes….” This constitutional authority of home rule jurisdictions to levy and collect taxes is arguably an obstacle to statewide uniformity as contemplated by the Streamlined Sales and Use Tax Agreement. As of this writing, home rule jurisdictions have no coordinated requirement for out-of-state retailers to collect sales taxes.

    While the Supreme Court has arguably made things simpler by overruling the physical presence requirement laid out in the Quill case, states that have complicated sales tax systems, like Colorado, will still see uncertainty. The Supreme Court could find that a fractured collection requirement is discriminatory or an undue burden to interstate commerce.  Commerce clause enthusiasts will have to wait to see if the Colorado General Assembly will take on this issue in the next legislative session starting in January 2019.