COLORADO SUPREME COURT 101 W. Colfax, # 800 Denver, Colorado 80202

Colorado Court of Appeals, 2013CA1621 District Court of Denver County, 2012CV3113

Petitioner: TABOR FOUNDATION, a Colorado non-profit corporation, v. Respondents: COLORADO BRIDGE ENTERPRISE; COLORADO TRANSPORTATION COMMISSION; TREY ROGERS, GARY M. REIFF, HEATHER BARRY, KATHY GILLILAND, KATHY CONNELL, DOUGLAS ADEN, STEVE PARKER, LES GRUEN, GILBERT ORTIZ, EDWARD J. PETERSON, all in their official capacities as members of the Colorado Transportation Commission.

COURT USE ONLY

Jeffrey W. McCoy (Atty. Reg. No. 43562) Steven J. Lechner (Atty. Reg. No. 19853) MOUNTAIN STATES LEGAL FOUNDATION 2596 S. Lewis Way Lakewood, Colorado 80227 (303) 292-2021 (303) 292-1980 (facsimile) jmccoy@mountainstateslegal.com lechner@mountainstateslegal.com

Case No.:

2014SC766

Reply In Support Of Petition For Writ Of Certiorari

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R. 28

and C.A.R. 32, including all formatting requirements set forth in these rules.

Specifically, the undersigned certifies that:

The brief complies with C.A.R. 53(d). It contains 3,144 words, exclusive of

this Certificate of Compliance, the Table of Contents, the Table of Authorities, the

Certificate of Service, the Supplemental Appendix, and the signature block.

/s/ Jeffrey W. McCoy Jeffrey W. McCoy

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TABLE OF CONTENTS Page CERTIFICATE OF COMPLIANCE TABLE OF AUTHORITIES .................................................................. ii INTRODUCTION .................................................................................. 1

ARGUMENT .......................................................................................... 1

I. RESPONDENTS’ ATTEMPT TO MISCHARACTERIZE THIS CASE IS UNAVAILING ................................................... 1

II. THIS COURT SHOULD GRANT THE PETITION TO

ENSURE A MEANINGFUL DISTINCTION BETWEEN A TAX AND A FEE ........................................................................ 8

III. THIS COURT SHOULD GRANT THE PETITION TO

ENSURE MEANINGFUL LIMITS ON TABOR-EXEMPT ENTERPRISES ............................................................................ 12

CONCLUSION ....................................................................................... 14 CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES Page Cases Anema v. Transit Const. Authority, 788 P.2d 1261 (Colo. 1990) ............................................................... 11 Barber v. Ritter, 196 P.3d 238 (Colo. 2008) ................................................................. 8, 9 Bickel v. City of Boulder, 885 P.2d 215 (Colo. 1994) ................................................................. 2 Bloom v. Fort Collins, 784 P.2d 304 (Colo. 1989) ................................................................. 10 Board of County Com’rs v. Vail Associates, Inc., 19 P.3d 1263 (Colo. 2001) ................................................................. 3–4 Cherry Hills Farms, Inc. v. City of Cherry Hills Village, 670 P.2d 779 (Colo. 1983) ................................................................. 4 City and County of Denver v. Gushurst, 210 P.2d 616 (Colo. 1949) ................................................................. 12 City of Greenwood Vill. v. Pet. for Proposed City of Centennial, 3 P.3d 427 (Colo. 2000) ..................................................................... 8 Colorado Common Cause v. Bledsoe, 810 P.2d 201 (Colo. 1991) ................................................................. 4 Federal Power Comm’n v. New England Power Co., 415 U.S. 345 (1974) ........................................................................... 9 Gen. Motors Corp. v. City & Cnty. of Denver, 990 P.2d 59 (Colo. 1999) ................................................................... 9

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Goldberg v. Sweet, 488 U.S. 252 (1989) ........................................................................... 9 Hinojos-Mendoza v. People, 169 P.3d 662 (Colo. 2007) ................................................................. 7 Lindner Packing & Provision Co. v. Industrial Comm'n, 60 P.2d 924 (Colo. 1936) ................................................................... 12 National Cable Television Ass’n v. United States, 415 U.S. 336 (1974) ........................................................................... 9 Nicholl v. E-470 Public Highway Authority, 896 P.2d 859 (Colo. 1995) ................................................................. 8, 9, 12, 13 Sanger v. Dennis, 148 P.3d 404 (Colo. App. 2006) ........................................................ 8 Submission of Interrogatories on Senate Bill, 93-74 852 P.2d 1 (Colo. 1993) .......................................................... 7 Constitutional Provisions Colo. Const. art. X, § 20(2)(d) ................................................................ 12 Colo. Const. art. X, § 20(4)(a) ................................................................ 3 Statutes C.R.S. § 24-77-101 et seq. ...................................................................... 6 C.R.S. § 24-77-101(2)(a) ................................................................... 6 C.R.S. § 24-77-102 ................................................................................. 2, 5, 6, 7, 14 C.R.S. § 24-77-103 ................................................................................. 7

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C.R.S. § 43-4-805 .................................................................................. 5 C.R.S. § 43-4-805(2)(b)(I) ...................................................................... 2, 3 C.R.S. § 43-4-805(2)(b)(II) ..................................................................... 4 C.R.S. § 43-4-805(2)(c) .......................................................................... 3, 4, 5 C.R.S. § 43-4-805(4) ............................................................................... 5, 13 C.R.S. § 43-4-805(5)(g) .......................................................................... 3 Other Authorities Daniel D. Domenico, The Constitutional Feedback Loop: Why No State Institution Typically Resolves Whether A Law Is Constitutional and What, If Anything, Should Be Done About It, 89 Denv. U. L. Rev. 161 (2011) .................................................................. 1–2 E-470 Public Highway Authority, Paying Tolls, available at https://www.expresstoll.com/PayingTolls/Pages/Paying-Tolls.aspx (last visited October 27, 2014) ................................................................ 13 Richard A. Posner, The Rise and Fall of Judicial Self-Restraint, 100 Cal. L. Rev. 519 (2012) ................................................................... 1

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INTRODUCTION

The TABOR Foundation (“Foundation”) asks this Court to review the

decision of the Court of Appeals in order to clarify the constitutional limits on

government action. Respondents Colorado Bridge Enterprise (“CBE”) and

Colorado Transportation Commission (“Commission”) incorrectly argue that this

Court should deny the Petition. See Opposition Brief to Petition for Writ of

Certiorari (“Opp.”). As demonstrated in the Petition, and further demonstrated

below, this Court should grant the Petition because the Court of Appeals’ decision

fails to provide any meaningful limitation on government conduct.

ARGUMENT

I. RESPONDENTS’ ATTEMPT TO MISCHARACTERIZE THIS CASE IS UNAVAILING.

Respondents misrepresent the nature of this case and incorrectly argue that,

if this Court grants the Petition, it will have to review the facial constitutionality of

several statutes and determine whether Petitioners proved those statutes were

unconstitutional using a “beyond a reasonable doubt” standard of review. 1 Opp. at

1 The “beyond a reasonable doubt” standard is archaic and undefined. Richard A. Posner, The Rise and Fall of Judicial Self-Restraint, 100 Cal. L. Rev. 519, 522 (2012) (explaining that the “beyond a reasonable doubt standard” was created by Professor Thayer in 1893); Daniel D. Domenico, The Constitutional Feedback Loop: Why No State Institution Typically Resolves Whether A Law Is Constitutional and What, If Anything, Should Be Done About It, 89 Denv. U. L.

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4–7. As the Court of Appeals recognized, this is not an accurate interpretation of

the Foundation’s Complaint. See COA Op. at 8 (not applying the “beyond a

reasonable doubt” standard). In this suit, the Foundation alleges that CBE violated

TABOR by levying a tax on vehicle registration and by issuing revenue bonds

without first seeking voter approval. See Complaint ¶¶ 43–62.2 This suit

challenges CBE and the Commission’s actions and seeks an injunction preventing

CBE from levying the bridge surcharge and issuing debt unless and until it

acquires voter approval. See Complaint Prayer for Relief ¶¶ 1–7. Accordingly, the

standard of review, as correctly articulated by the Court of Appeals, is “[w]here

multiple interpretations of TABOR are equally supported by the text, a court

should choose that interpretation which it concludes would create the greatest

restraint on the growth of government.” COA Op. at 8 (citing Bickel v. City of

Boulder, 885 P.2d 215, 229 (Colo. 1994)).

First, Respondents suggest that the Foundation’s challenge is a facial

challenge to the section establishing the bridge surcharge. Opp. at 4–5. Although

C.R.S. § 43-4-805(2)(b)(I) grants authority to CBE to levy a bridge surcharge,

Rev. 161, 167–68 (2011) (Stating that there is a dispute about the scope of the “beyond a reasonable doubt” standard and whether it should be applied at all.). 2 The Complaint is reproduced at Supplemental Appendix O. The Supplemental Appendix is filed concurrently herewith.

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nothing in that section requires CBE to levy that surcharge without first seeking

voter approval. The section simply provides that “the bridge enterprise may. . .

[i]mpose a bridge safety surcharge as authorized in” C.R.S. § 43-4-805(5)(g).

C.R.S. § 43-4-805(2)(b)(I) (emphasis added).

Therefore, C.R.S. § 43-4-805(2)(b)(I) is not self-executing. Instead, CBE

chose to exercise its discretion to levy the surcharge without first seeking voter

approval. It is this action that the Foundation challenged. Complaint ¶¶ 51, 62.

Indeed, if CBE had sought, and received, voter approval before levying the

surcharge (or issuing new debt), then it would not have violated TABOR, and

Petitioner would not have sued. See id. Moreover, if a court grants the

Foundation’s requested relief, CBE will not be prevented from ever levying the

surcharge, it will only be prevented from levying the surcharge without voter

approval. See Colo. Const. art. X, § 20(4)(a). Accordingly, and contrary to

Respondents’ suggestion, the Foundation is not bringing a facial challenge to the

constitutionality of C.R.S. § 43-4-805(2)(b)(I).

Second, Respondents attempt to use the General Assembly’s suggestion that

the surcharge is a fee to argue that the Foundation is bringing a facial challenge to

the last sentence of C.R.S. § 43-4-805(2)(c). Opp. at 4–5. The General

Assembly’s suggestion, however, is merely advisory. Board of County Com’rs v.

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Vail Associates, Inc., 19 P.3d 1263, 1273 (Colo. 2001) (“[T]he legislature’s

construction of a statutory or constitutional provision is advisory, not binding.”);

see also Cherry Hills Farms, Inc. v. City of Cherry Hills Village, 670 P.2d 779,

782 (Colo. 1983) (“The [Service Expansion Fee], regardless of its label, is a tax.”);

Colorado Common Cause v. Bledsoe, 810 P.2d 201, 206 (Colo. 1991) (Stating that

it is “peculiarly the province of the judiciary to interpret the constitution and say

what the law is.” (internal quotations and citations omitted)). This Court should

not give the language in C.R.S. § 43-4-805(2)(c) any more weight than non-

binding legislative history.

Third, Respondents incorrectly argue that the Foundation is bringing a facial

challenge to the portion of C.R.S. § 43-4-805(2)(c) that provides that CBE is a

TABOR-exempt enterprise. Opp. at 5. This is simply not true. The Foundation is

bringing an as-applied challenge to CBE’s actions, which demonstrates that it is

not acting as a TABOR-exempt enterprise and, thus, it cannot issue new debt

without voter approval.3 Although the General Assembly sought to establish CBE

3 As with the bridge surcharge, the statute does not require CBE to issue bonds. C.R.S. § 43-4-805(2)(b)(II).

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as an enterprise to avoid TABOR, it is the responsibility of CBE to thereafter act in

accordance with TABOR to ensure that it retains its enterprise status.4

Assuming, arguendo, that CBE did not lose its enterprise status by levying a

tax, then it lost its enterprise status when it received more than ten percent of its

annual revenue in grants from the state. See Petition at 13–16. Nothing in C.R.S.

§ 43-4-805 requires the Commission to transfer any funds to CBE, or requires CBE

to accept the funds. C.R.S. § 43-4-805(4) (“The commission may transfer moneys

from the state highway fund” and “[t]he bridge enterprise may accept and expend

any moneys so transferred . . . .” (emphasis added)). If CBE wanted to keep its

enterprise status, then, at a minimum, it should not have accepted such large

transfers of money from the Commission. Therefore, Respondents’ actions, rather

than C.R.S. § 43-4-805, are at issue in this case.

Finally, Respondents suggest that the Foundation is facially challenging the

constitutionality of the definition of “grant” in C.R.S. § 24-77-102. Opp. at 5–6.

The Foundation is not challenging that definition, only that the transfer of funds

and property to CBE required CBE to hold an election before it issued any new

4 The General Assembly expressly recognized that CBE could lose its enterprise status. C.R.S. § 43-4-805(2)(c) (“The bridge enterprise shall constitute an enterprise . . . so long as it retains the authority to issue revenue bonds and receives less than ten percent of its total revenues in grants from all Colorado state and local governments combined.” (emphasis added)).

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debt. See Complaint ¶¶ 21–23; Petition at 15–16. In response to these allegations,

Respondents argued that that definition of “grant” in C.R.S. § 24-77-102 applies

and, under that definition, CBE retained its enterprise status. Therefore, the

Foundation did not bring a facial challenge to the definition of “grant” in C.R.S. §

24-77-102, rather Respondents used that definition in defense of its actions.

Furthermore, if this Court grants the Foundation’s requested relief, the

definition of “grant” in C.R.S. § 24-77-102 will not be rendered null because of its

applicability to TABOR’s state fiscal year spending limits. See C.R.S. § 24-77-

101 et seq. As a result, the Foundation is not bringing a facial challenge to the

definition of “grant” in C.R.S. § 24-77-102 because it will continue to apply in at

least one context, regardless of the outcome of this case.

In fact, even the as-applied constitutionality of the definition of “grant” is

not at issue in this case because the definitions in C.R.S. § 24-77-102 are only

applicable in the context of the state fiscal year spending limit. C.R.S. § 24-77-102

(limiting use of the definitions to “this article ”). As the words of that statute make

clear, C.R.S. § 24-77-102 was “enacted to facilitate compliance with the state

fiscal year spending limit” contained in TABOR. C.R.S. § 24-77-101(2)(a). This

limited purpose is reflected by the substantive provisions of the statute, which only

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apply to state fiscal year spending limits. See, e.g., C.R.S. § 24-77-103 (entitled

“Limitation on state fiscal year spending--legislative declaration.”).

This Court’s language in Submission of Interrogatories on Senate Bill 93-74,

852 P.2d 1, 4-5 (Colo. 1993), did not broaden the scope and applicability of the

definitions in C.R.S. § 24-77-102. In that case, this Court analyzed C.R.S. § 24-

77-102 in the limited context of state fiscal year spending limits. 852 P.2d 1 at 4-5

(Describing the interrogatory as “[a]re any lottery proceeds dedicated pursuant to

the provisions of article XXVII of the state constitution, which was also approved

at the 1992 general election, subject to the limitation on state fiscal year spending

set forth in [TABOR]?”). Therefore, this Court did not examine C.R.S. § 24-77-

102 outside of the limited context provided for in the statute. Accordingly,

Respondents’ argument that C.R.S. § 24-77-102 has broad applicability has no

support and, thus, the constitutionality of the definition of “grant” in C.R.S. § 24-

77-102 is not at issue in this case.

Respondents’ attempt to mischaracterize the issues before this Court fails

and the “beyond a reasonable doubt” standard of review is not applicable in this

case. See Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo. 2007) (Stating

that the “beyond a reasonable doubt” standard applies when the plaintiff is

“challenging the facial constitutionality of a statute . . . .” (emphasis added)); see

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Sanger v. Dennis, 148 P.3d 404, 410–11 (Colo. App. 2006) (Discussing the

difference between seeking to render a statute “utterly inoperative” and other

situations). As this Court has stated, “[t]he type of constitutional challenge, the

nature of the challenged statute, and the standing of the parties determine how we

approach judicial review in a particular case . . . .” City of Greenwood Vill. v. Pet.

for Proposed City of Centennial, 3 P.3d 427, 440 (Colo. 2000). Accordingly,

Respondents’ standard of review argument is unavailing and does not provide a

compelling reason to deny the Petition.

II. THIS COURT SHOULD GRANT THE PETITION TO ENSURE A MEANINGFUL DISTINCTION BETWEEN A TAX AND A FEE.

Respondents attempt to downplay this Court’s precedent that a fee must be

assessed in “direct relation to services provided . . . .” Nicholl v. E-470 Public

Highway Authority, 896 P.2d 859, 869 (Colo. 1995); see also Barber v. Ritter, 196

P.3d 238, 249 (Colo. 2008) (“If the [statute] discloses that the primary purpose for

the charge is to finance a particular service utilized by those who must pay the

charge, then the charge is a ‘fee.’”) (emphasis added). As demonstrated in the

Petition, and further demonstrated below, this Court’s rulings in Nicholl and

Barber are significant, and the statements of this Court are not just “partial

phrases” that the Court of Appeals could choose to ignore. Opp. at 12; Petition at

5–10.

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Contrary to this Court’s precedent, the Court of Appeals’ opinion essentially

eliminates the distinction between a tax and a fee. Under the definition proffered

by the Court of Appeals and Respondents, a charge is a fee if the government says

it is a fee and the charge is used to fund some particular program. Opp. at 8–14.

According to them, if the payer of a charge is “reasonably likely to benefit from or

use the service” then it does not matter if the payer actually receives a direct

benefit as a result of paying the charge. COA Op. at 18. In fact, under the Court

of Appeals’ new precedent, a fee “may be charged to persons who may not utilize

the services at all.” COA Op. at 17.

This definition, however, is no different from the definition of a tax. Taxes

fund services that provide generalized or indirect benefits. Gen. Motors Corp. v.

City & Cnty. of Denver, 990 P.2d 59, 73 (Colo. 1999) (“The taxpayer enjoys a

‘wide range’ of benefits from the state . . .”) (quoting Goldberg v. Sweet, 488 U.S.

252, 266-67 (1989)). Fees, on the other hand, provide specific or direct benefits, as

this Court’s precedent makes clear. Nicholl, 896 P.2d at 869; Barber, 196 P.3d at

249; see also National Cable Television Ass’n v. United States, 415 U.S. 336, 340–

41 (1974) (“A fee . . . bestows a benefit on the applicant, not shared by other

members of society.”); Federal Power Comm’n v. New England Power Co., 415

U.S. 345, 350 (1974) (A charge will most often be a tax “when the identification of

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the ultimate beneficiary is obscure and the service can be primarily considered as

benefiting broadly the general public.”). By ignoring this Court’s language, the

Court of Appeals has now removed that distinction.

The Court of Appeals also misinterpreted the pre-TABOR case, Bloom v.

Fort Collins, 784 P.2d 304, 310 (Colo. 1989). COA Op. at 20. In that case, this

Court recognized the need for a direct connection between the charge assessed and

the service provided. In Bloom, the only properties assessed were those that

actually benefited from the service, because they were developed lots adjacent to

the city streets that were to be repaired by the fee collected:

The owners and occupants of developed lots subject to the fee receive the benefit of a program of city maintenance calculated to provide effective access to and from residences, buildings, and other areas within the city.

Bloom, 784 P.2d at 310. Moreover, the fee in Bloom was based on usage, because

it “varies with the amount of the lot’s street frontage and the ‘traffic generation

factor’ (or estimated street usage) applicable to the lot.” Id. at 309. It would have

been impossible for the properties charged in Bloom to avoid benefiting from the

fee, because they were physically adjacent to the roads that were being maintained.

The opposite is true in this case, as many of the vehicles assessed the bridge

surcharge never come within miles of a CBE bridge. See Petition at 9–10.

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Similarly, this Court’s decision in the pre-TABOR case Anema v. Transit

Const. Authority, 788 P.2d 1261, 1267 (Colo. 1990), also recognized the need for a

direct connection between the charge and the service provided. In that case, the

only fee payers were owners of “commercial property within the service area” and

“employers within the service area.” Id. at 1262–63. The fee payers received a

direct and immediate benefit from the fees they paid because “the service

performed was the determination of the feasibility, contours, and cost of rapid rail

transit.” Id. at 1267. The Court’s “reasonably likely” language did not apply to

the service provided, i.e. the plan, but rather the extent of the plan. Id. Indeed, the

only benefit the fee payers could possibly receive was the plan itself, since the

entity collecting the charge lacked the authority to actually build the system

envisioned. Id. at 1263. Accordingly, Anema also requires a direct connection

between the fees paid and a benefit that actually accrues to the property assessed

the charge.

As this Court’s precedent has made clear, a fee requires a direct connection

between the charge assessed and the service provided. The Court of Appeals failed

to follow that precedent, and now the difference between a tax and a fee is

nonexistent. In order to ensure a meaningful distinction between a tax and a fee,

this Court should grant the Petition.

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III. THIS COURT SHOULD GRANT THE PETITION TO ENSURE MEANINGFUL LIMITS ON TABOR-EXEMPT ENTERPRISES.

The Court of Appeals’ decision also removes any meaningful distinction

between a TABOR-exempt enterprise and a government district. TABOR defines

“enterprise” as “a government-owned business authorized to issue its own revenue

bonds and receiving under 10% of annual revenue in grants from all Colorado state

and local governments combined.” Colo. Const. art. X, § 20(2)(d). As this Court’s

precedent makes clear, a “business” is independent, self-supporting, and receives

income through market exchanges. See Nicholl, 896 P.2d at 868; Lindner Packing

& Provision Co. v. Industrial Comm'n, 60 P.2d 924, 926 (Colo. 1936); City and

County of Denver v. Gushurst, 210 P.2d 616, 619 (Colo. 1949); see also Op. Att’y

Gen. No. 95-07. The Court of Appeals failed to follow this precedent, however,

and failed to articulate a distinction between a government-owned business and

any other government entity.

Respondents argue that Nicholl does not support the conclusion that a

TABOR-exempt business requires a competitive market exchange and incorrectly

state that there was no competitive market exchange in Nicholl. Opp. at 15. That

motorists chose to use E-470 demonstrates that the Authority was engaging in a

competitive market exchange. Nicholl, 896 P.2d at 875 (Erickson, J., concurring

and dissenting) (“By allowing access to the highway in exchange for user fees, the

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Authority is engaging in a business.”). Common sense indicates that the Authority

would not set the toll at a rate so high that no one would be willing to pay it. That

is the essence of a competitive market exchange.5 Op. Att’y Gen. No. 95-07

(“[W]here an enterprise is also providing market driven services to the public, as

here, there is a greater likelihood that the enterprise meets TABOR restrictions.”).

Accordingly, because the Court of Appeals misrepresented this Court’s opinion in

Nicholl, the Petition should be granted.

The Court of Appeals decision also fails to give any meaning to TABOR’s

ten percent limit. The purpose of that limit is “to distinguish a purported enterprise

from a governmental unit.” Nicholl, 896 P.2d at 869. The Court of Appeals’

decision does not maintain this distinction, because it allows one government

entity to fund another government entity without limitation.

As demonstrated in the Petition, and further demonstrated above, CBE

would not have received any federal funds without the Commission’s independent

decision to transfer those funds. See Petition at 13–16; C.R.S. § 43-4-805(4).

Although CBE may have applied to the federal government for those funds, it had

5 The fact that the Authority offers discounts for ExpressToll users further demonstrates that it is engaged in a competitive market exchange. See E-470 Public Highway Authority, Paying Tolls, available at https://www.expresstoll.com/PayingTolls/Pages/Paying-Tolls.aspx (last visited October 27, 2014).

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no right to those funds unless and until the Commission decided to transfer the

funds. Id. Therefore, the Court of Appeals erred when it concluded that the

Commission had no control over the $14.4 million it transferred to CBE. COA Op.

at 26–27.6 Accordingly, this Court should grant the Petition to provide a

meaningful distinction between an enterprise and a government district.

CONCLUSION

This Court should grant the Petition for Writ of Certiorari.

Respectfully submitted this 27th day of October 2014.

E-filed in accordance with C.A.R. 30. /s/ Jeffrey W. McCoy Jeffrey W. McCoy Steven J. Lechner Mountain States Legal Foundation 2596 South Lewis Way Lakewood, Colorado 80227 (303) 292-2021 jmccoy@mountainstateslegal.com lechner@mountainstateslegal.com

Attorneys for Petitioner

6 Furthermore, as demonstrated above, the Court of Appeals mistakenly ruled that the definition of “grant” in C.R.S. § 24-77-102 applied. COA Op. at 22–23.

CERTIFICATE OF SERVICE

I certify that on the 27th day of October 2014, the foregoing document was

filed with the Court and true and accurate copies of same were served on counsel

of record via the Integrated Colorado Courts E-Filing System.

/s/ Jeffrey W. McCoy Jeffrey W. McCoy

Pursuant to C.A.R. 30(f,) an original copy of the Brief is maintained at the office of Petitioner’s counsel.