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Colorado Association of Public Employees v. Board of Regents of University of Colorado12/24/1990
public entity. Accordingly, the legislature did not attempt to structure the debt financing provided in the act so that it would comply with Article XI, Section 3 and the relevant caselaw regarding public entities. We note, for example, that the act contains no provision for repayment of funds borrowed by the Directors.
In our view, the debt financing provisions of the statute are inextricably intertwined with the legislative purpose to create the reorganized hospital as a private, nonprofit corporation. Since that effort has failed and we have found that the reorganized hospital is a public entity, the debt financing provisions of the statute which are dependent on the existence of the reorganized hospital as a private, nonprofit entity also must fail. See § 2-4-204, 1B C.R.S. (1980); Gallegos v. Phipps, 779 P.2d 856, 863 (Colo. 1989).
We recognize that the statute contains a severability clause. § 23-21-409, 9 C.R.S. (1990 Supp.). However, we find that the debt financing provisions are not severable from the portions of the statute which we have found unconstitutional in part III of this opinion. City of Lakewood v. Colfax Unlimited Ass'n Inc., 634 P.2d 52, 70 (Colo. 1981); 2 N. Singer, Statutes and Statutory Construction § 44.04, .08 (C. Sands 4th rev. ed. 1986). Hence, we invalidate the act in its entirety.
Conclusion
The plaintiffs challenged the constitutionality of House Bill 1143, Ch. 193, sec. 1 to 14, 1989 Colo. Sess. Laws 995-1006, on the grounds that it violates Article XII, Section 13 and Article XI, Section 3 of the Colorado Constitution. Because we find that the statute violates Article XII, Section 13, and is unconstitutional beyond a reasonable doubt, we reverse.
Disposition
JUDGMENT REVERSED.
JUSTICE KIRSHBAUM specially concurring.
Although I agree with the conclusion reached in part II of the majority opinion that the hospital created by sections 23-21-401 to -410, 9 C.R.S. (1990 Supp.) (the Act), is a public rather than a private institution, I do so on grounds more narrow than those articulated by the majority. I join part III of the majority opinion, concluding, for the reasons set forth therein, that section 23-21-406, 9 C.R.S. (1990 Supp.), violates provisions of article XII, section 13, of the Colorado Constitution establishing the personnel system for this state's public entities.
In adopting the Act, the General Assembly clearly intended to create a private, not a public, corporation. §§ 23-21-401(1)(e), -402(3), -403(1)(a), 9 C.R.S. (1990 Supp.). In the context of the facial constitutional challenge asserted by the plaintiffs in this action, the initial question is whether the Act as adopted achieves that goal. The factors relevant for a determination of whether an entity such as the hospital is in fact a private or a public entity include the source and purposes for the establishment of the institution and the source of ultimate authority and control over the institution's policies, fiscal operations and provision of services. See Queen v. West Virginia Univ. Hosp., 365 S.E.2d 375 (W. Va. 1987); Woodard v. Porter Hosp., Inc., 125 Vt. 419, 217 A.2d 37 (1966).
The majority does not suggest that an institution not "founded and maintained by private individuals or a private corporation" can never be deemed a "private" entity. (slip op. at 12). If that were the case, such governmentally created institutions as the Future Farmers of America, 36 U.S.C. § 271 (1988), and the Boy Scouts of America,
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