United Air Lines, Inc. v. City & County of Denver

647 whо cur- those are licensed and dissenting: individuals ERICKSON Justice attorney rently law. An who is on practicing respectfully dissent. I eligible practice not law inactive status convic- majority reverses defendant’s The until, unless, granted permission to re- and the trial court tion and sentence 227(A)(6)and turn active status. C.R.C.P. cause of a challenge for a defense denied 227(A)(7); Newman, People v. C.R.C.P. juror, juror. The whom defen- prospective (Colo.1996) 783, (censuring attorney peremptory P.2d by the of a dant excused (1) I lawyer inactive status. challenge, a on implying was “that he was improperly for challenge for granting the disagree that in even practice law Colorado licensed by the statute. cause was mandated (2) though on inactive status” and he was 16-10-103(1), C.R.S.1997, does not practice on engaging Section in the while law lawyer exempt disqualify a аutomatically status); Cassidy, People v. P.2d inactive service, a for provides but basis jury from (Colo.1994) (selling living packages trust lawyer jury juror who a challenging a the unau- while inactive status constitutes on establishing preju- bias or service without law). practice of thorized dice. equated lawyer People, supra, a Binkley v. 16-10-103(1) was construed Section person provides who statute with a (Colo.1986), Binkley People, 716 P.2d 1111 v. legal prac- and who is licensed advice prospective a challenge a when defense attorney ticing and counselor at law. as an juror a juror was The was for cause denied. juror was not such a prospective here graduate passed had the Montana law bar, Thus, expire. properly license to person. but had allowed her de- trial court Supreme upheld the de- Court Colorаdo challenge nied for cause. the defense Binkley’s conviction. nial affirmed v. People reached A different result was There, (Colo.App.1997). 944 P.2d 689 Pope, lawyer, juror, was prospective who was juror challenged cause. The stated that for status, had applied had for inactive but he LINES, INC., a AIR Delaware UNITED application that his not received confirmation Wisconsin, Inc., a corporation; and Air granted. The trial court denied had been corporation, Plaintiffs-Appel Wisconsin cause, appeals challenge and the court for lants, there had on the basis that been reversed showing require- the administrative v. obtaining inactive status had been ments for DENVER, a AND COUNTY OF CITY satisfied. city munici home rule and Colorado Pope, supra, People To v. the extent Defendant-Appellee. pal corpоration, facts may in that be construed No. 97CA0151. case, Binkley I with it as conflict view to follow it. People, supra, would decline Appeals, Court of Colorado Here, juror had ad- prospective been II. Div. but had mitted to the Colorado bar the mid-1980s. been on inactive status since April 1998. Binkley I upon People, supra, Based Rehearing Modified Denial As not to would such individual consider 25, 1998. June “lawyer” meaning of within the 16-10- 103(1). uphold the trial court’s deni- I would March 1999.* Certiorari Granted cause, al of the would and sentence. affirm defendant’s conviction exclude, required to trial showing enmity, only

apart of bias or * applied Com- as not to violate the Code to be so OF ISSUE: SUMMARY of the States Constitution. merce Clause United holding appeals erred in Whether the court Denied as to all other issues. 53-97(11) Revised that section 53-92(c) participatе. does SCOTT Justice Municipal Code allows section

649

more than once after and re- rehabilitation pair. period The audit for United Airlines January 1, was through June period 1994. Air Wisconsin’s audit was from July through December 1993. dispute stored, There is no both airlines used, consumed, parts distributed such during periods question. operations Air Wisconsin conducted at Sta- pleton Airport International for commercial flights passenger between Denver and As- pen, flights Colorado. the Those were flights by conducted out of Denver Air Wis- During period, consin. the audit Air Wiscon- purchased sin parts suppliers aircraft outside shipped of Denver that were either Denver or installed on aircraft outside Denver subsequently but removed Denver. paid Air Wisconsin Denver use tax based Skadden, Slate, Arps, Meagher Flom, & upon parts shipped the total value of aircraft L.L.P., Olson, Washington, D.C., Pamela F. parts transport- into Denver less the value Plaintiffs-Appellants, for shipped ed or out of Air Denver. Wisconsin Brownstein, Hyatt, Strickland, Farber & received an assessment from the Denver P.C., Farbes, Jr., A. Lynne Hubert M. Huf- Manager upon of Revenue based the afore- Denver, nagel, Plaintiffs-Appellants. for unpaid mentioned audit for use for taxes Muse, City Attorney, E. depreciated Daniel airplane parts Maria values all Kayser, City Attorney, Assistant Office of shipped during period. into Denver the audit Denver, City Attorney, the for Defendant- No other use tax Air against was assessed Appellee. parts by any Wisconsin’s aircraft other state jurisdiction. or local

Opinion by Judge TAUBMAN. United Airlines also conducted its carri- air Plaintiffs, Inc., Lines, United Air and Air operations er from Stapleton International Express (collectively Wisconsin United d/b/a Airport. It received an assessment from the airlines), appeal judgment the the in favor of Manager upon Denver of Revenue based defendant, City County Denver, up- calculation of the use tax owed United holding constitutionality of the Denver airlines, depreciated applied use Airlines for values tax as of all rotable and the subsequent penalties imposed assessment of parts shipped during aircraft into Denver pursuant Municipal to Denver Revised Code period. audit The calculation included a (Denver Code) 53-114(a). § disagree We credit paid for sales or use taxes to Califor- with the airlines’ contention ordi- jurisdictions nia state local taxing to the applied nance rights violated their taxes,were paid extent such particular for Clause, the Commerce but agree that to, рarts than, equal or less the amount of imposition penalties must be reversed. use tax parts. due Denver for the same parties stipulated following to the separate In hearings, administrative facts. Denver audited airlines and as- officer, hearing behalf the Denver Man- use, storage, sessed a use tax on the distribu- Revenue, tion, ager of consumption in concluded that Denver’s Denver rotable i.e., parts, parts aircraft which can be used assessment of use tax was constitutional parts question, ing aircraft suffered imposition penalties pursu- upheld and, therefore, 53-114(a). legal injury does not have spe- § More Denver Code ant to Simi- standing to the ordinance. cifically, hearing officer concluded larly, argues that because United Denver 92(c), Municipal Code Revised 53— for all other taxes Airlines received credit its tax gives credit which paid to paid parts, including taxes on its .paid to other previously use taxes sales or California, it state of likewise does have the Commerce municipalities, did not violate injury. cognizable legal poten- both the eliminates Clause of, for, actuality greater taxation tial Although both Denver and the trial court goods. standing, presume, than intrastate have we based for interstate addressed Mesquite upon City reliance on their that, hearing be- officer determined Inc., Castle, 283, 102 Aladdin’s 455 U.S. S.Ct. provision pre- the ordinance’s credit cause (1982), that the chal 71 L.Ed.2d assessing higher tax vents Denver lenge premised upon the doctrine of is also taxpayer when a against interstate articles disagree We with both conten mootness. municipalities, Den- paid has taxes other tions. afoul of the Com- tax does not run ver’s use Contrary separate to United’s conten hearing officer then merce Clause. tion, may, filing a appellee without notice alternative, that, in the Denver concluded support cross-appeal, arguments raise 53-97(11) § Municipal none- Revised Code judgment which would not increase his from use tax constitu- theless insulates the rights judgment, her under the ‍‌‌‌‌‌​​‌​​​​‌‌‌‌‌‌‌​‌​​‌​​​​​‌​‌​​‌‌​‌​​​​​​‌‌‌​‍whether or or exempts attack because it from tional argu those not trial court has ruled on pro- is otherwise all sales which Denver tax Thompson, v. 37 City ments. Delta Colo. taxing from under Constitution hibited (1975). App. 548 P.2d 1292 States. of the United Similarly, file a the failure to cross- pursuant to appeal In a .consolidated jurisdic preclude appeal not review does 106(a)(4), the trial affirmed C.R.C.P. v. La by appellate tion an court. Best Plata hearing of the officer. the decisions (Colo. Commission, 701 P.2d 91 Planning court, provisions of the construing all trial jurisdiction may App.1984). question together, that Denver tax determined litigation, any stage in be at raised 53-97(11) tax exempts § the use Code appeal. the first time on See cluding for purchases is oth- all which Denver sales Corp. Arapahoe County Broadway S. v. (Colo. taxing Commissioners, prohibited from erwise 815 P.2d 966 Board of App.1991). trial court’s Clause. Under Commerce construction, pass- goods of the airlines Accordingly, we address Denver’s conten- subject would ing in commerce be interstate concerning standing and mootness. tions Thus, goods. tax to the same as intrastate ordinance, the construing the trial court so Standing A. found it constitutional. that, because Air Denver contends fact, injury in has not suffered Wisconsin appeal This followed. constitutionality the use tax review of the persuad precluded. We are ordinance is Standing I. and Mootness ed. outset, Denver’s conten- At the we address standing inquiry The conventional airline has that because neither suffered injury tion plaintiff has suffered is whether standing injury, has to cognizable neither legally protected interest contem fact ato constitutionality provi use tax statutory plated by or constitutional Rights argues specifically, Application More ordinance. In re Water sions. for Co., Liability potential Turkey Air had no Ranch Limited because Canon Wisconsin (Colo.1997). regard- liability any jurisdiction P.2d other tax Therefore, party injury if challenged practice suffers no not resume the once the fact, dismissed, injury thereby or suffers in fact but not from effectively action is de- legal right, the violation of no relief can feating be intervention in court’s the dis- аfforded, pute. and the case City Mesquite should dismissed v. Aladdin’s Inc., standing. Castle, Wimberly Ettenberg, for lack of supra. 194 Colo. 570 P.2d 535 Here, United by Airlines was taxed both may satisfy A complaining party taxing jurisdictions state and local of Califor- injury requirement by demonstrating actual nia. plain language Because the of Denver caused, challenged action has 53-92(c) § Code allows a credit for sales cause, injury. threatens to economic imposed or use taxes municipalities, other injury palpable. Hughey must be direct and subjected United Airlines would have been County Board Commission taxation, multiple Jefferson absent a credit for state ers, (Colo.App.1996). 921 P.2d 76 county However, taxes. Denver “inter- preted” provide its ordinance so as to a cred-

Here, undisputed that Air Wisconsin it to United Airlines for the amount of taxes jurisdictions. had not been tаxed in other paid taxing jurisdic- both state local though even Air Wisconsin had not Thus, although tions of California. Denver’s subject multiple been taxation under Den voluntary effectively any action tax, was, eliminated ver’s use it nonetheless and contin taxation, injury disparate economic be, subject penalties ues to to the and inter voluntary such action does not moot United pursuant est assessed to Denver challenge. 53-114(a). Airlines’ injury Code Such is both direct and, therefore, palpable satisfies the first effectively Denver cannot avoid constitu- requirement Further, standing. inquiry tional concerning the ordinance party who bears the financial burden of a through voluntary challenged cessation party aggrieved, tax the second re City Mesquite conduct. See v. Aladdin’s of quirement standing of met. See is also Hu Castle, Inc., Board, suprа; Byrne v. Title ghey v. County Board Commis Jefferson of (Colo.1995) 907 570 (appeal P.2d from Title sioners, supra. hearing Board’s refusal to conduct within 48- moot, period hour not rendered even after B. Mootness hearing, elector received because there was Denver next contends that United that, future, no to reason believe in the precluded seeking Airlines is review in circumstances, similar elector would be able voluntary this matter because Denver’s deci to obtain review before board within 48 sion to credit United Airlines for state and hours). paid local taxes California has made Unit Further, Airlines, we note that challenge Again, ed Airline’s United like moot. we dis Wisconsin, Air suffered agree. injury economic be- was, be, subject cause it and continues to to Appellate will generally courts not penalties against and interest assessеd it. opinions render appeal the merits of an Thus, standing neither lack of nor mootness presented litigation when issues in the be precludes our review. subsequent come moot because events. A judgment case is moot a when would have no II. Challenge Commerce Clause practical upon existing controversy, effect an Use Tax to any put uncertainty. would not an end to Foundation, Religion Freedom From Inc. v. challenge airlines trial Romer, (Colo.App.1996). 921 84 P.2d ruling upholding constitutionality court’s However, voluntary a Specifically, they defendant’s tax. the use contend practice challenged cessation does not Denver’s use tax violates Commerce deprive power its to unfairly determine the Clause because it discriminates legality practice. This is so parts pass its rotable aircraft whiсh certainty there defendant will agree. interstate commerce. We do not

653 1076, (1977); that, outset, 51 L.Ed.2d 326 Riverton in their S.Ct. we note At the (Colo. State, brief, v. P.2d 1213 maintain that be Produce Co. 871 the airlines appellate 1994). cross-appealed not The airlines’ here concerns Denver “has cause the Denver Use only steps decision that of this District Court’s two three test. face,... its this is unconstitutional on Tax facially may violate neutral statute A the Court....” properly before issue not if the state enforces Clause Commerce contention, Contrary airlines’ the trial to the in a manner that favors intrastate carriers the use tax ordinance court did not rule over interstate carriers. Amerada Hess Thus, its we ad unconstitutional on face. Taxation, Corp. 490 v. DirectorDivision constitutionality of the ordi dress 104 58 S.Ct. L.Ed.2d U.S. applied. nance as State, (1989); suprа, Riverton Produce Go..v. Clause, although The Commerce grant authority merely as a phrased determining the When constitur Congress regulate among the commerce ordinance, tionality guided a court states, negative command contains a several First, statutory construction. basic rules forbidding states from dis the individual typically presumed to be an ordinance trade. More criminating against interstate constitutional, party, attacking and the specifically, prohibits the clause economic ordinance has burden establish i.e., regulatory de measures protectionism, beyond a is unconstitutional ordinance signed to economic interests benefit in-state Publishing reasonable doubt. See competition. by burdening out-of-state New (Colo. Aurora, P.2d City Co. Limbach, 269, 108 Energy 486 U.S. Co. 1995). Gibson, Beyond Reason See also 1803, 100L.Ed.2d 302 S.Ct. able Doubt: Colоrado’s Standard Review ing Constitutionality, 23 Colo. a Statute’s if tax is valid it is 1994) origin of (April (discussing Law.-835 compensate designed to compensatory tax standard). beyond a reasonable doubt municipality a state or for revenue lost when goods for use purchase residents out-of-state Second, challenged if a ordinance D.H. Co. v. McNa within the state. Holmes constructions, one lends itself alternate mara, 1619, 100 486 U.S. 108 S.Ct. constitutional, in which is the constitutional (1988). Thus, compensa a valid L.Ed.2d 21 adopted. People ex terpretation must be liability tory may impose greater tax tax Nissen, City rel. Arvada v. 650 P.2d than on intrastate arti on interstate articles (Colo.1982). duty is to It the a court Lohman, v. cles. Industries Associated as not to invalidate construe an ordinance so 641, 114 S.Ct. 128 L.Ed.2d U.S. Springs, 154 Colo. it. Hiatt Manitou (1994). 392 P.2d 282 not allow a A use tax which does ordinance, just Additionally, tax jurisdic taxing paid for to credit taxes other statute, give be construed to like a should the Commerce Clause because ‍‌‌‌‌‌​​‌​​​​‌‌‌‌‌‌‌​‌​​‌​​​​​‌​‌​​‌‌​‌​​​​​​‌‌‌​‍tions violates consistent, harmonious, to effect and sensible only single imposes tax on intrastate Chames, Co. parts. Walgreen all its purchases, payment multiple but results (Colo.1991). 819 P.2d 1039 purchases. taxes on interstate Associated Lohman, supra. Industries v. 53-92(c) § provides: Denver Code legisla- commerce, hereby to the It is declared be tax on A state interstate city, acting through its tax, of the not violate the tive intent as use does such Denver’s (1) the duly representatives, applied if the is to elected tax: Commerce Clause to apply provision of this article shall nexus with the activity an with a substantial (3) already (2) paid a retail state; any person who has taxing fairly apportioned; to the rеspect or a tax sales tax use against interstate com does discriminate tangible (4) personal merce; a service or fairly to ser sale of related the and hereunder, munici- to a by property taxable provided taxing Complete the state. vices existing organized and Transit, pal corporation Brady, Inc. v. 430 U.S. Auto authority the Significantly, of the laws or the the ordinance defines the any terms, “sale,” “purchase,” Constitution of state an amount pur- and “sale and by article, imposed than the tax identically. less this chase” Denver Munici- Revised 53-95(21) § and who thereafter or pal provides: causes service Code tangible personal property, taxable here- ‘sale,’ ‘purchase,’ or term ‘sale under, used, stored, to be distributed or purchase’ includes transactions city, in the consumed but the tax im- whereby acquisition per- tangible the shall, posed by event, this article in such (a) property by sonal was effected be measured the difference between transfer, conditionally absolutely, or imposed by amount this article and possession tangible title or both or of the previously imposed by the amount (b) lease, personal property; or hire or municipality other on said sale. If the of, grant rental or a of a to license use imposed paid retail sales tax to such royalty (including agreements) tangible municipal equal corporation aforesaid is personal property.... imposed by to more or than the tax this Thus, construing provisions these of the article, no tax shall be for due hereunder 53-91(11) together, § ordinance Denver Code privilege using, the exercise of the or exempts pur- from taxation all sales and storing, distributing consuming or such chases which Denver is constitu- otherwise personal city. property service in the tionally prohibited taxing. from Municipal § Denver Revised Code 53- Accordingly, taxpayer may seek ex- 96(1) provides that Denver’s use tax is levied emption from the if use tax fails Denver “purchase price paid charged upon or give full for paid taxing credit taxes other purchases” tangible all personal sales jurisdictions, states, counties, including However, property. exempts construction, municipalities. Under this tax, city use sales which “[a]ll liability tax would the same on the air- prohibited taxing under the Constitu- parts lines’ rotable aircraft as on intrastate tion laws States United or the purchases. Additionally, since the ordinance Constitution of state.” Denver Revised provides against a credit tax use 53-97(11). Muniсipal Thus, Code on its paid states, taxes in other tax use face, exemption applies the use tax fairly apportioned. See D.H. Co. v. Holmes only to sales applies while the tax itself McNamara, supra. purchases. both sales Thus, applied, the Denver ordinance use subject the ordinance is two fairly apportioned tax was and does not dis- conflicting airlines, interpretations. criminate interstate commerce. upon plain based language of the ordi- Therefore, the ordinance does not violate the nance, interpret tax to allow a credit Commerce Clause. paid municipal corpo- for taxes to other paid rations and not for taxes to other states Associated Industries v. Director Reve non-municipal governments. nue, and local (Mo.1996), The 918 S.W.2d 780 decided on construction, adopted by other the trial remand from Associated Industries Loh court, interprets man, provision the use tax supra, as a persuade does not us to the comport There, whole to contrary. with the Commerce Clause. supreme Missouri’s Specifically, the trial court construed the struck down an entire use tax ordinance as tax exempting from all the tax sales and violative of the Commerce Clause because it purchases prohibited which are imposed otherwise an additional 1 use tax on all 1/2% being from taxed under subject it, the constitution or thereby transactions impermis- to view, laws of the United our sibly discriminating against States. In the com interstate interpretation trial court’s rejected is correct. argument Such merce. The court the is supreme for, construction consistent with the an exemption that in the ordinance use, both court’s mandate in “property, storage, consumption Hiatt Manitou the Springs, supra, People City prohibited taxing ex rel. of which this state is of Constitution., Nissen, supra. Arvada v. under the of the United that, Here, hearing officer found the States,” from otherwise the ordinance saved 53-114(a), imposition § the Denver Code The court con-

violating the constitution. automatic, penalties against the airlines is cluded: penalties the resulted from an audit by ‘proper exemption is defined ... The paid, taxes due which were not revealed were type ty,’ certain discernible presumably a § not Code 53-133 did mandate Supreme ex ... the Court’s property penalties. the waiver In [in tax Associated ception to the use circumstances, we these conclude Under is] v. Lohman based dustries Missouri matter must be remanded for factual that the property the inherent nature not on cause findings regarding good whether exist- local sales tax question, in but rather on penalty against 10% the ed to waive the rates. Ap- Boice v. Industrial Claim airlines. See Industries, the in here Unlike Associated (Colo.App.1990) Office, P.2d 1339 peals upon the inherent is based exemption not (where findings fact and conclusions of law the property, but rather how nature of the proper is unclear whether insufficient and it sales, or more general applies to use tax in legal applied, remand for clarifica- standard Thus, purchases. specifically, sales necessary). findings tion further is view, the ordinance exemption the allows our discretion, may, in his hearing officer or her constitutional bounds applied within parties evi- to submit additional allow exemption Associ- unlike nature concerning the issue. dence Industries, supra. ated judgment respects in all is affirmed permits credit this construction Because upholding portion except as thereof jurisdictions taxing paid to other for taxes portion penalties. That imposition need not deter- apart municipalities, we reversed, is judgment cause tax credit Denver’s lateral mine whether hearing remand to the remanded further Clause. violates the Commerce structure concerning the issue waiver officer resolve opinion. with this penalties consistent Penalties III. Judge concurs. CASEBOLT also

The airlines contend upholding penalties Judge specially trial court erred concurs. BRIGGS Munici pursuant to Denver Revised assessed concurring. specially Judge BRIGGS 53-114(a) they § have pal Code outcome, I write I concur in the While required by the good demonstrated cause as First, I separately for two reasons. cannot § Municipal 53-133. Denver Revised Code join expressing my con- opinion without ambiguous as to the record party litany: chal- cerns with familiar hearing officer concluded whether present legislative must lenging a enactment required by penalties imposition was the enact- proof a reasonable doubt or whether she exer Denver Code 53-114 Second, my con- is unconstitutional. ment upholding the assess cised her discretion driven, just by not what issues currence penalties the airlines. ment of raised, raised. are but also what hearing determined that If the officer mandatory, she imposition penalties was I. considering whether the airlines erred in not challenge, rejecting a constitutional good waiver of When cause wаrrant have shown alternative, appellate opinions typically begin even if we Colorado penalties. In the such by referencing supposed requirement of hearing arguendo, officer assume beyond Howev- “proof a reasonable doubt.” uphold- did in fact exercise her discretion actually er, supreme court has never findings in ing penalties, there are no reject- cause, thus, requirement as a basis applied we regard good and to waiver for I challenge. do not take entry ing a constitutional of the matter for the must remand literally adding step a to be the reference as findings on that issue. 656

applied analysis. proper gravest duty a constitutional and most delicate that a court is time, I perform.). Nor do believe it should be added and called on At the same applied, particularly present in its incanta- authority, courts also retain inherent duty, tion. independently to determine whether a legislative enactment a violates constitutional opinion addressing When added right prohibition. Marbury or See v. Madi constitutionality legislative of a enact- (1 Cranch) son, 137, (1803); 5 U.S. 2 L.Ed. 60 ment, requirement proof a (Colo. Court, Pena v. District 681 P.2d 953 appears enough. reasonable doubt innocent 1984). Hence, converting into deference a However, subtly accepted mutates the presumption, nothing untoward has occurred. beginning point analy- for a constitutional sis, creating step an additional and final B.

which, even properly, when taken treach- importantly, step More it is erous. a sel- step, long The next derivative also ‍‌‌‌‌‌​​‌​​​​‌‌‌‌‌‌‌​‌​​‌​​​​​‌​‌​​‌‌​‌​​​​​​‌‌‌​‍taken dom, ever, properly if taken. ago, to espouse legislative was that а enact- ment must “proved unconstitutional be-

A. yond a reasonable doubt.” See Alexander v. People, 155, 894, (1884); 2 7 Colo. P. 896 see genesis phrase The is the familiar Saunders, Ogden also v. supra. Despite its court, observation a addressing when benign appearance, the result is to extend constitutionality legislative of a enact- necessary degree, deference to an extreme ment, must co-equal accord deference to a creating analytical while at the same time representative government. branch of difficulties. recognizes This but that the structures our national, state, governments and local Typically, are with presumption a of constitu- separation based on the pow- tionality starting doctrine of point, a proceeds as a court system, ers. In this recog- analysis the courts with by articulating must its applying political responsi- nize the and administrative an appropriate standard of review. ex- For not, legislature bilities ample, addressing and must even pro- a substantive due negatively, legislate. gen- equal undertake to protection cess or challenge, a court Sacks, erally H. Hart A. Legal & Pro- must first challenged determine whether the Making cess: Basic legislative Problems in the suspect enactment a creates class (W. Application Eskridge Frickey Law & affects right. fundamental constitutional eds.1994); Thayer, Origin State, (Colo.1996). J. Scope Lorenz v. 928 P.2d 1274 so, The American Doctrine If Constitutional then “strictly the court must scruti- Law, (1893). 7 Harv. L.Rev. 129 challenged provision nize” the to determine narrowly whether it is tailored to achieve a principle long ago A derived from this compelling governmental not, interest. If legislative deference is enactment is then the court need determine whether presumed to Ogden be constitutional. See v. relationship” enactment bears “rational Saunders, 213, 12 Wheat. 25 U.S. 6 legitimate governmental to a purpose. Peo- (1827); People L.Ed. ex rel. Tucker v. (Colo.1993). ple Young, v. P.2d Rucker, 5 Colo. 455 This rephrasing general pre- deference as applies derivative The court next the appropriate sumption merely begin- review, creates an obvious striking standard such as ning point analysis: for a proper constitutional Un- competing balance between interests. otherwise, persuaded State, less (Colo.1983). a court will not See Cole 673 P.2d 345 legislative strike down a Finally, having enactment uncon- applied the standard re- view, stitutional. the court comes to its If conclusion. persuaded the enaсtment is unconstitution- presumption necessary retains the al, presumption of constitutionality has sensitivity Blodgett to the court’s task. See been overcome. Holden, 275 U.S. 48 S.Ct. L.Ed. 206 (1927)(resolving a constitutional This would seem to be the end legislative analysis. a is by requiring enactment that majority upheld beyond must be because “proof on statute be conclusion based

court’s “beyond convinced a reasonable doubt,” was not creates “some- a court a reasonable language.” doubt.” form of more than a mere thing at Thayer, supra, Harv. L.Rev. 143.

See J. court is that longer is it sufficient

No D. enactment is uncon- persuaded legislative a in questionable wisdom Apart from completed its Having otherwise stitutional. beyond theory adding “proof a reasonable of conclusion, the that analysis and reached step a as and final an additional doubt” additionally dеtermine must now analysis, the serious con- more constitutional by its a it of decision is convinced whether requirement practice. comes The cern conviction, certainty, or firmness of degree of simply properly applied. been The has It is a doubt.” “beyond is reasonable that 1) misapplications are: most common- three con- step raises several additional this be, best, height- misstating at a what should cerns. evidentiary persuasion as burden of an ened 2) be, proof; merging what should burden C. analy- best, step in a constitutional at last persuaded that a be Requiring a court to 3) espousing the step; an or sis into earlier “be- is unconstitutional legislative enactment litany, applying never it. but then is de- yond an extreme a reasonable doubt” not, deference, is and gree that itself one 1. been, Among the free of doubt. has never legislative typical It is to state both that by degree of defer- concerns raised such presumed to be constitutional enactment is recognize members its ence is failure “beyond “proof’ the burden may for a law legislative branch vote of a nothing This resembles reasonable doubt.” so, expedient to do politically presumption much as of innocence so question though they or at least doubt even proof in a involved criminal case— burden Further, constitutionality. the enactment’s evidentiary proof. burden of degree of certain- requiring such an extreme impact ty on the constitutional not without analysis is purpose The of a constitutional generally G. Lawson rights citizens. See findings. not to make factual Some course Moore, Consti- & The Executive Power C. may have underlying disputes to bе factual L.Rev. 1267 Inte'i'pretation, 81 Iowa tutional heightened standard resolved. (1995-96); Thayer, supra. J. purpose is and the ultimate proof applies, a constitutional chal- still the resolution of addition, places requirement In legal analysis. lenge through persuasion citizens in burden of heavier those in our federal courts than on our state challenge is to the constitu- Even when the challenge is the identical courts. When applied, tionality legislative enactment of a constitution state raised under our federal analysis required legal for the the “evidence” courts, why not clear federal it is consisting no more undisputed, is often vary. persuasion should burden enactment, a factual con- legislative than text, legisla- perhaps uncontested some requirement proof a reason- history. may even take ‍‌‌‌‌‌​​‌​​​​‌‌‌‌‌‌‌​‌​​‌​​​​​‌​‌​​‌‌​‌​​​​​​‌‌‌​‍expressed “evidence” provided the tive doubt has never able speculation. See form of mere striking legislative rational enact- basis down Communications, Inc., 508 appellate opinions. v. Beach F.C.C. any of our state’s ment 2096, 2102, 307, 315, 113 S.Ct. very many upholding U.S. decisions fact that (1993)(“[A] legislative have far from L.Ed.2d been legislative enactments factfinding subject courtroom choice is not arguably that our courts indicates unanimous speculation may on rational be based actually to such an have not deferred often data.”). Indeed, empirical unsupported evidence sur- degree. would extreme legislative en- is that a any court that was When prising appellate to see overbroad, underlying facially was actment firmly legislative convinced a enactment may important. less even facts become conclude the unconstitutional nevertheless People Tooley government, just rel. Thirty-Five ex v. Seven to the to come forward Inc., (Colo.1985). Colfax, justification enactment, East 697 P.2d 348 with but also prove constitutionality of the enact- Nevertheless, striking simi- by degree ment —albeit some unarticulated larities, analyses, legal the two unrelated one certainty apparently “beyond than a less factual, easily and one are confused. reasonable People, doubt.” Rickstrew v. can unfortunate result be misdirected focus (Colo.1991); 822 P.2d 505 see also Denver analysis in constitutional on the “evidence” Aurora, Publishing City v.Co. 896 P.2d presented, improperly implying thus that (Colo.1995). question of fact controls must re- be Gibson, generally Beyond solved. See L. A merging What is of interest in this Reasonable Doubt: Colorado’s Standard For separate steps analytical the defer- Reviewing A .Constitutionality, Statute’s co-equal govern- ence to which a branch of 1994)(“Colorado (April Colo. Law. 835 courts appears ment is disappears, entitled ease do not find statutes unconstitutional absent case, depending on the nature (em- evidence a reasonable doubt.” right constitutional or classification asserted. added)). phasis may appropriate vary While it be contrary, To the the court’s ultimate de- analy- standard of review in a constitutional gree certainty, conviction, bases, or why firmness of sis on such is unclear resolving a conclusion respect a constitutional chal- sensitivity to which each branch lenge evidence, government does not result from the or anything entitled should be “proof,” presented. force, It results from the less than invariable. persuasiveness, legal argument.

or 3.

2. final, common, and most use of the The confusion does not end there. It is litany is simply to at the state outset of the supposedly not unusual to see this ana- final legal analysis that a to the consti- lytical step analysis in a constitutional in- tutionality legislative requires of a enactment merged steps stead into the earlier of select- proof beyond sup- a reasonable doubt. The ing applying appropriate standard of posed requirement is then never mentioned review, such relationship” as “rational or again. scrutiny.” “strict happens, longer When this no does purpose explained. Its is never Because relationship” lesser standard of “rational supposed principle typi- constitutional merely require legislative enactment cally ignored recited and in opinions in which upheld long governmental so as the classi challenged legislative up- enactment fication is based on differences are real held, appears thinly- more than a illusory and not rationally and is related a veiled pur- rationalization. Whatever legitimate governmental interest. Under the pose, its this manner neither adds to merged test, relationship” “rational the chal analysis. nor clarifies constitutional lenging party “prove” must also the enact “beyond ment unconstitutional a reasonable E. doubt.” Colorado Auto Auction Services Corp. City City, Commerce 800 P.2d recognize I Supreme the United States 998, 1004(Colo.1990). Court first formulated the incantation.

Conversely, Context, however, if the classification affects a is critical. It was not class, right suspect Madison, fundamental until Marbury supra, that the merged consequence just test the judi- is not to Court had even addressed the issue subject the enactment scrutiny” authority to “strict cial constitutionality to review the narrowly order to legislative determine if it is tailored declarations. The decision in compelling to achieve a governmental Marbury hardly inter- quieted the debate. See addition, In proof’ Thayer, est. “burden generally supra. shifts J.

659 princi- extremely constitutional decision become surprising that an not is thus It they acquire Court, ples, principles Og- as Supreme and cautious sensitive [T]hey Saunders, 270, own.... stand force their 25 at found supra, U.S. den weapon’ waiting a loaded to around ‘like ob- additional astute add an politically it to fired when the constitutional occasion to respect due is but a decent “It servation: arises. wisdom, patriotism integrity, and the the the any law legislative body, whiсh of the Miller, Supreme the The Court and Uses C. validity, its in favor of passed, presume to (1969); R. History, 11-14 see pp. also proved constitution is its violation the until 3, Aldisert, § 4 Process Ch. Judicial beyond a reasonable doubt.” judicial (1976)(diseussing the role of rules principles). surprising that it is likewise not has not Supreme Court States the United analysis, in the final important What is phrase part of a constitutional the as otherwise, uttered appellate constitutional or that century. See analysis in half a more than principles articulate and standards courts 525, Hospital, 261 U.S. Adkins Children’s It is debatable that are needed useful. (1923). In its 67 785 43 L.Ed. S.Ct. any degree requiring heightened whether returned to place, Supreme the has Court v. National deference is either. Walters Cf. expression of deference. See Walters simple Survivors, supra. Even Ass’n Radiation Survivors, Ass’n Radiation v. Nationаl both, requiring that a constitutional chal if L.Ed.2d S.Ct. 473 U.S. lenge beyond reasonable “proof rest on doubt” neither.

F. II. parties have raised issue concern- a violation of the Com- United asserts analyzing the constitu- ing the framework for not, example, It does merce Clause. litany Repeating us. the tional issue before Code, Municipal so assert that the Denver has not beyond reasonable doubt” “proof process by failing to interpreted, due violates in this case. impacted result we reach just give what activities fair advance notice noted, impacted already has not it As subject are to taxation. properties any published case—thus far. result single Hence, is limited to the our review appeal. issue raised separately write because it I nevertheless is, all, principle we are a constitutiоnal after not construing taxing In scheme Denver’s impact espousing. It has on the supposedly Clause, majority to violate Commerce appellate courts: perception of our state’s exemption from and use relies on sales Municipal forth in Denver Revised uphold taxes set opinions] to [Appellate serve 53-91(11). exempts sales courts, § “[a]ll It Code power of the without

the moral taxing un- city prohibited which judiciary be ineffectu- which the would laws of the United der constitution or judiciary prestige of the [T]he al.... state.” quality opin- States or Constitution ... is related to exempt from taxa- majority construes this to of rea- of the courts statements ions purchases Denver is that tion all sales and reasoning of an soning. When the prohibited constitutionally otherwise support opinion adequately fails taxing. case, judi- entire in a is the decision process

cial that suffers. (al- majority, persuaded I am Like' the not a reasonable

though perhaps doubt) reflects Den- construction this construed, exemption intent. ... ver’s So the most intense contro- One of any chal- constitutional jurispru- necessarily defeats American versies recent any purchase. any any lenge tax on ‍‌‌‌‌‌​​‌​​​​‌‌‌‌‌‌‌​‌​​‌​​​​​‌​‌​​‌‌​‌​​​​​​‌‌‌​‍sale precisely has centered on the dence application particular judicial reasoning If a determines adequate point of 53-96(1) § would otherwise violate of of The reasons reaching decisions.... Clause, 53-97(11) § Commerce must 53-96(1) applica-

construe exclude It tautology say

tion. thus becomes a imposed

the tax Municipal under the Denver

Code does violate the Commerce Clause.

Therefore, light of the limited issue us,

before I concur.

In the Matter of the ESTATE OF ONGARO,

Veronica C.

Deceased. Department

Denver Water Credit

Union, Claimant-Appellant, Ongaro,

The Estate of Veronica C.

Respondent-Appellee.

No. 97CA0041. Appeals,

Colorado Court

Div. II.

April 1998.

Rehearing Denied June 1998.

Certiorari Granted March 1999.* * OF comply SUMMARY ISSUE: proper with the reasonable notice and presentation requirements of section 15-12- appeals Whether the court of ing erred in determin- 803(l)(a)(III), 5 C.R.S. that creditor's claim the decedent’s petitioner all estate Denied other issues. was barred because failed to

Case Details

Case Name: United Air Lines, Inc. v. City & County of Denver

Court Name: Colorado Court of Appeals

Date Published: Mar 29, 1999

Citation: 973 P.2d 647

Docket Number: 97CA0151

Court Abbreviation: Colo. Ct. App.