Interrogatory Propounded by Governor Roy Romer on House Bill 91S-1005, In re, S-1005

CourtSupreme Court of Colorado
Citation814 P.2d 875
Docket NumberNo. 91SA225,S-1005,91SA225
Decision Date11 July 1991

Barbara A. McDonnell, Chief Legal Advisor, Denver, for Governor Roy Romer.

Office of Legislative Legal Services, Douglas G. Brown, William A. Hobbs, Alice Boler Ackerman, Sharon L. Eubanks, Denver, for Colorado General Assembly.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Denver, for Atty. Gen.

Fairfield & Woods, P.C., Jac K. Sperling, Craig A. Umbaugh, Thomas M. Pierce, Denver, for Greater Denver Chamber of Commerce and Greater Denver Corp.

John K. Reynolds, Denver, for American Constitutional Law Foundation, Inc., The Colorado Union of Taxpayers, Inc., Senator Jim Roberts, Representative Charles Duke, and John Andrews.

Richard E. Young, Denver, for amicus curiae Richard E. Young.

Larry Carroll, Denver, for amicus curiae United Veterans Committee of Colorado.

William N. Baird, Fruita, interested party.

Justice ERICKSON delivered the Opinion of the Court.

The Governor of the State of Colorado has submitted an interrogatory to this court pursuant to Colorado Constitution, article VI, section 3, asking whether House Bill No. 91S-1005, in conjunction with House Bill No. 91S-1009, is constitutional under five specific provisions of the Colorado Constitution. We now hold and determine that House Bill No. 91S-1005, on its face, does not violate any of these five constitutional provisions.


The governor's interrogatory requested this court's opinion on the following questions:

Is House Bill No. 91S-1005 titled "Concerning Incentives to Establish a New Business Facility That Will Employ a Substantial Number of New Employees" in conjunction with House Bill 91S-1009 titled "Concerning the Allocation of Revenues Attributable to Taxes Imposed on Aviation Fuel to The Aviation Fund in Accordance With Section 18 of Article X of the Colorado Constitution, and in Connection Therewith, Providing for the Use of the Moneys in Such Fund and Making an Appropriation" constitutional under the following provisions of the Constitution of the State of Colorado:


1. Article XI, Section 2, concerning aid to corporations.

2. Article V, Section 34, concerning appropriations to private institutions.

B. Article II, Section 11, concerning the irrevocable grant of special privileges.

C. Article V, Section 25, concerning special legislation.

D. Article XI, Section 3, concerning public debt of the state.

The interrogatory was submitted on June 12, 1991, and stated that House Bill No. 91S-1005 (H.B. 1005) and House Bill No. 91S-1009 (H.B. 1009) were enacted by the Colorado General Assembly and were delivered to the governor on June 10, 1991. The governor asserted that he had until July 10, 1991, to act on H.B. 1005 and to file it in the Office of the Secretary of State, and that if he did not file it by that date it would become law. 1

Section 3 of article VI of the Colorado Constitution provides that "[t]he supreme court shall give its opinion upon important questions upon solemn occasions when required by the governor, the senate, or the house of representatives...." We determined that the governor's questions were sufficiently important and proper and we agreed to exercise our original jurisdiction to answer the interrogatory. See In re House Bill No. 1353, 738 P.2d 371, 372 (Colo.1987); In re Interrogatories by the Governor, 116 Colo. 318, 319, 180 P.2d 1018, 1019 (1947). This court solicited briefs concerning the governor's interrogatory from all interested persons. The General Assembly, the governor, the Colorado attorney general, and the American Constitutional Law Foundation, Inc., among others, have filed briefs as amici curiae. Oral argument on the questions submitted by the governor was held in the Supreme Court Courtroom on June 26, 1991. We have considered the briefs and arguments of amici in answering the governor's interrogatory.

In H.B. 1005, the General Assembly established the "Colorado Business Incentive Fund" (CBIF), which consists of moneys transferred in accordance with the provisions of H.B. 1009. In addition, H.B. 1005 authorizes the state to enter into "intergovernmental agreements" with local governments or the Colorado Housing and Finance Authority (CHFA) for the purpose of providing incentives for "entities" to establish new business facilities employing a substantial number of new employees. The attorney general is to approve all intergovernmental agreements "as to form." Such intergovernmental agreements are to be funded from the CBIF and may never be funded from general fund moneys or other state moneys. The moneys in the CBIF are subject to annual appropriation by the General Assembly. Although the intergovernmental agreements are to be funded from the CBIF, H.B. 1005 does not state whether the funds appropriated by the General Assembly from the CBIF are to be paid to the local government or CHFA, or to some other entity. Nor does the bill define the term "incentive."

In entering into an intergovernmental agreement, the state is to consider a number of guidelines including the financial incentives provided by the local jurisdiction, the number of new jobs generated by the new business facility, the extent of employment of Colorado residents, and the extent to which the entity establishing the new business facility intends to contract with Colorado residents and companies for goods and services at the new facility. At a minimum, however, intergovernmental agreements relating to the establishment of a new business facility are subject to following requirements: (1) there must be an agreement between the local jurisdiction and the "entity which is to establish a new business facility" that the entity is to operate the new facility for at least thirty years; (2) the intergovernmental agreement shall provide that the entity employ at least 3,000 employees by July 1 of the tenth year following the effective date of the agreement between the local jurisdiction and the entity; (3) the agreement between the local jurisdiction and the entity shall require an average annual salary of at least $45,000 for employees at the new facility; (4) the intergovernmental agreement shall provide that the entity employ at least 2,000 employees at ancillary facilities in Colorado by July 1 of the tenth year following the effective date of the agreement between the local jurisdiction and the entity and that the ancillary employees' average annual salaries must be at least $22,500; and (5) the intergovernmental agreement shall provide that the agreement between the local jurisdiction and the entity contain certain sanctions, remedies, and procedures to enforce that agreement's terms, including, but not limited to, forfeiture of real and personal property rights. See H.B. 1105, sec. 1, § 24-46.5-103(1) & (2). We refer to intergovernmental agreements authorized by section 24-46.5-103(1) & (2) as "subsection (1)" intergovernmental agreements.

Effective January 1, 1992, local governments are authorized to enter into intergovernmental agreements "in relation to the establishment of new business facilities which shall employ a substantial number of new employees receiving an average annual salary of no less than the average annual salary for such local government." H.B. 1005, sec. 1, § 24-46.5-103(3) (emphasis added) ("subsection (3)" intergovernmental agreements). Any entity that has received, or was eligible to receive, incentives pursuant to subsection (1) may not receive benefits under subsection (3). Subsection (1) intergovernmental agreements are funded from the CBIF by means of moneys transferred to the CBIF pursuant to H.B. 1009. The General Assembly, however, has identified no specific funding for subsection (3) intergovernmental agreements in either H.B. 1005 or H.B. 1009.

Finally, the total amount of incentives financed "for any person or entity under intergovernmental agreements under this article by the Colorado Business Incentive Fund shall not exceed one hundred fifteen million dollars." H.B. 1005, sec. 1, § 24-46.5-103(5).

An "aviation fund" is established in H.B. 1009, consisting of certain revenues derived from the state excise tax, sales tax, and use tax on aviation fuel. Section 43-10-110 of H.B. 1009 provides for monthly disbursements from the aviation fund to be made to the airport operating fund of the governmental entity operating the public-accessible airport from which the taxes are derived, except

if an intergovernmental agreement is entered into pursuant to the provisions of section 24-46.5-103(1), C.R.S., the portion of the sales and use tax revenues that would otherwise be transferred to the governmental entity operating the largest airport in the state shall be transferred to the Colorado Business Incentive Fund created in section 24- 46.5-102, C.R.S. If such an intergovernmental agreement is entered into, moneys shall be transferred by the state treasurer, beginning July 1, 1991, for the length of the intergovernmental agreement, and, following the conclusion of the agreement, or if no agreement is entered into, the moneys shall be transferred to such governmental entity in accordance with the provisions of this section.... Such moneys shall only be used for aviation purposes.

H.B. 1009, sec. 7, § 43-10-110((2). Colorado Constitution, article X, section 18, provides in pertinent part:

License fees and excise taxes--use of. On and after July 1, 1935, the proceeds from the imposition of any license, registration fee, or other charge with respect to the operation of any motor vehicle upon any public highway in this state and the proceeds from the imposition of any excise tax on gasoline or other liquid motor fuel except aviation fuel used for aviation purposes shall, except costs of administration, be used exclusively for the construction, maintenance, and...

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