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.
ADVANCE SHEET HEADNOTE

September 17, 2018
2018 CO 77
No. 18SA90, People v. Brooks
— Special Le gislation Claus e — Sentencing
— Felony Murder
— Juvenile Sentencing
. This case requires the supreme court to determine whether Colorado’s recently enacted sentencing scheme for juvenile offenders who received unconstitutional mandatory sentences to life in priso n without the possibility of parole (“LWOP”) violates the Special Legislation Clause of the Colorado Constitution.
The court a ssum es without deciding that the revised sentencing scheme , which the General Assembly enacted in response to Untied States Supr eme Court cases deeming unconstitutional mandatory LWOP sentences for juvenile offenders, is subject to the Special Legislation Clause and implicates one of the provisions enumerated
therein

. The court then conclude s that the revised sentencing scheme doe s not run
afoul of the Colorado C onstitution’s prohibition of special legislation because the statute creates a genuine class and its legislative classifications are reasonable. In so concluding, the court reject s the People’s contentions that the class m ust be deemed illusory because it is “closed” and that the class is, in fact, closed to future members.Accordingly, the supreme court discharges the rule to show cause.The Supreme Court of the State of Colorado 2 East 14 th Avenue • Denver, Colorado 80203

2018 CO 77 Supreme Court Case No. 18SA90 Original Proceeding Pursuant to C.A.R. 21 Arapahoe County District Court Case No. 95CR675 Honorable Carlos A. Samour, Jr. , Judge

______________________________________________________________________________ In Re Plaintiff : The People of the State of Colorado ,

v. Defendant : Curtis A. Brooks

.

______________________________________________________________________________ Rule Discharged en banc September 17, 2018

______________________________________________________________________________ Attorneys for P laintiff : George H. Brauchler, District Attorney, Eighteenth Judicial District Susan J. Trout, Senior Deputy District Attorney Centennial, Colorado Attorneys for Defendant : Connelly Law, LLC Sean Connelly Denver, ColoradoEytan Nielsen LLC

Dru Nielsen Denver, Colorado

Ratliff Law Firm LLC Ashley Ratliff Denver, Colorado Attorneys for Amici Curiae Colorado Constitutional, Criminal, and Juvenile Law Scholars: Christopher N. Lasch Ian Farrell Denver, Colorado Attorneys for Amicus Curiae Denver District Attorney: Beth McCann, Denver District Attorney, Second Judicial District Robert M. Russel, Senior Chief Deputy District Attorney Denver, Colorado Attorneys for Amici Curiae District Attorneys for the First, Fourth, and Nineteenth Judicial Districts: Peter Weir, District Attorney, First Judicial District Donna Skinner Reed, Chief Appell ate Deputy District Attorney Golden, Colorado Daniel H. May, District Attorney, Fourth Judicial District Doyle Baker, Senior Deputy District Attorney Colorado Springs, Colorado Michael J. Rourke, District Attorney, Nineteenth Judicial District Greeley , Colorado

JUSTICE GABRIEL delivered the Opinion of the Court. CHIEF JUSTICE COATS concurs in the judgment and JUSTICE MÁRQUEZ joins the
concurrence. JUSTICE SAMOUR does not participate.3

¶1 This case presents the question of whether Colorado’s recently enacted sentencing scheme for juvenile offenders who received unconstitutional mandatory sentences to life in prison without the possibility of parole (“LWOP”) violates the Special Legislation Clause of the Colorado Constitution

. We conclude that it does not.
¶2 Based on acts that Brooks committed when he was fifteen years old, prosecutors charged Brooks as an adult with felony murder and other crimes. After a jury convic ted Brooks on multiple counts, including the felony murder c harge, the trial court imposed a mandatory LWOP sentence i n accordance with Colorado’s then

- applicable sentencing

statutes

. ¶3 Over fifteen years later, the United States Supreme Court decided Miller v. Alabama , 567 U.S. 460 (2012) , and Montgomery v. Louisiana , 136 S. Ct. 718 (2016) , which, respectively, deemed mandatory LWOP sentences for those who were under eighteen at the time of their crimes unconstitutional and concluded that Miller
announced a new substantive constitutional rule that was to be a pplied retroactively on state collateral review . In response to these rulings, the General Assembly amended the pert i nent sentencing statutes to provide for resent encing of people, like Brooks, who
were then serving unconstitutional mandatory LWOP sentences

. ¶4 Under the General Assembly’s revised sentencing scheme, most persons serving
unconstitutional sentences for class 1 felonies would be resentenced to a term of life imprisonment with the possibility of parole after forty years. See § 18

- 1.3

- 401 ( 4)(c)(I), C.R.S. (2018 ). A juvenile who had received a mandatory LWOP sentence after4

conviction for felony murder, however, c ould request a resentencing hearing before the
district court

. If, based on the evidence presented at this hearing, the district court found extraordinary mitigating circumstances, then the court could re sentence the
defendant to a determinate sentence of thirty to fifty years in prison. See § 18

- 1.3

- 401 (4)(c)(I)(A).
¶5 In accordance with these procedures, Brooks petitioned the distri ct court to
resentence him to a determinate term of thirty years in prison, over twenty of which he had already served , with ten years of mandatory parole

. The People opposed this motion, arguing that the General Assembly’s revisions to the sentencing scheme
violate d the Colorado Constitution’s Special Legislation Clause by granting to the small group of people serving unconstitutional sentences for felony murder special privilege s (namely, the resentencing hearing and the potential for a thirty

- to fif ty

- year determinate sentence ) that were unavailable to the large r class of people serving
unconstitutional sentences.
¶6 The district court ultimately concluded that the People had not carried their burden of demonstrating that the revised sentencing scheme violated the Special Legislation Clause. The People then petitioned this court for a rule to show caus e why
the district court’s order should not be vacated , and we granted that petition.
¶7 We now discharge the rule. A ssuming without deciding that the rev ised sentencing scheme is subject to the Special Legislation Clause and implicates one of the provisions enumerated there in , we conclude that the sentencing scheme does not run5

afoul of the constitution’s prohibition of special legislation because the stat ute creates a genuine class and its legislative classifications are reasonable. In so concluding, w e reject the People’s contention s that the class must be deemed illusory because it is

“ closed ” and that the class is, in fact, closed to future members

. ¶8 Accordingly, we agree with the district court’s conclusion that the Special Legislation Clause does not invalidat e the revised sentencing legislation , although our reasoning differs from that court’s analysis in several respects . We therefore discharge
th e rule to show cause.


### I. Facts and Procedural History
¶9 In 1997, a jury convicted Brooks for , among other things, a felony murder
committed in 1995 when he was fifteen years old

. Brooks had been tried as an adult, and p ursuant to the sentencing laws in eff ect at the time, the court sentenced him to a mandatory LWOP term

. Brooks began serving this sentence in 1997 , and he remains in prison today.
¶10 I n 2012 , the United States Supreme Court decided Miller , 567 U.S. at 465 , in
which it held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Montgomery , 136 S. Ct. at 732 , decided four years later, clarified that
Miller had a nnounced a substantive rule that should be applied retroactively in cases on
collateral review.6

¶11 T aken together, these two cases effectively invalidated the sentence that Brooks
had received, along with the sentences of approximately fifty other persons in Colorado
who had been convicted of class 1 felonies committed on or after July 1, 1990 and before July 1, 2006 when they were juveniles. Colorado statutory law , however, did not provide any alternative constitutional sentence s for these offenders.
¶12 The gap that Miller and Montgomery left in Colorado’s sentencing scheme thus cried out for a legislative solution. See People v. Tate , 201 5 CO 42, ¶ 47, 352 P.3d 959,
96 9

- 70 (attempting , in the absence of an applicable constitutional sentence adopted by
the l egislature, to deduce the sentence that the legislature would have adopted had it anticipated the ruling in Miller ). In 2016, the General Assembly responded and amended Colorado’s sentencing scheme to provide for the resentencing of those
persons whose se ntences had been rendered unconstitutional by Miller and Montgomery . The re vised legislation ( the “2016 sentencing legislation”) provide s , in pertinent part: (c)(I)

. . . [A] s to a person who is c onvicted as an adult of a class 1 felony following a direct filing of an information or indictment in the distri ct court pursuant to section 19

- 2

- 517, C.R.S., or transfer of proceedings to the distri ct court pursuant to section 19

- 2

- 518, C.R.S., or pursuant to either of these sections as they existed prior to thei r repeal and reenactment, wi th amendments, by House Bill 96

- 1005, which felony was committed on or after July 1, 1990, and before July 1, 2006, and who received a sentence to life imprisonment without the possibility of parole: (A) If the felony for which the person was convicted is murder in the first degree, as described in section 18

- 3

- 102(1)(b) [i.e., felony murder] , then the district court, after holding a hearing, may sentence the person to a determinate sentence within the range of thirty to fifty ye ars in prison, less any earned time granted pursuant to section 17

- 22.5

- 405, C.R.S., if, after7

considering the fa ctors described in subparagraph (II) of this paragraph (c), the district court finds extraordinary mitigating circumstances. Alternatively, th e court may sentence the person to a term of life imprisonment with the possibility of parole after serving forty years, less any earned time granted pursuant to section 17

- 22.5

- 405, C.R.S. (B) If the felony for which the person was convicted is not murder in the first degree, as described in section 18

- 3

- 102(1)(b) [i.e., if it is a form of first degree murder other than felony murder] , then the district court shall sentence the person to a term of life imprisonment with the possibility of parole after serv ing forty years, less any earned time granted pursuant to section 17

- 22.5

- 405, C.R.S. § 18

- 1.3

- 401 (4)(c)(I). ¶13 T he 2016 sentencing legislation thus divides the fifty people serving
unconstitutional sentences in Colorado in to two groups. The first group comprises those serving mandatory LWOP sentences for felony murders that they committed when they were juveniles. Although the parties dispute the exact number of people in this group, they appear to agree that the group numbers at least s ixteen people , and for convenience, we will therefore refer to this group as the “class of sixteen.” Under the 2016 sentencing legislation, this group could be sentenced either to a determinate sentence of thirty to fifty years (if the court finds, after a hearing, extraordinary mitigating circumstances) or to a term of life imprisonment with the possibility of parole after forty years. The second group comprises those serving mandatory LWOP
sentences for class 1 felonies other than felony murder that the y committed when they were juveniles. Under the 2016 sentencing legislation, members of this second group must be sentenced to a term of life imprisonment with the possibility of parole after8

forty year s
. The members of this group do not qualify for a he aring before the district

court on mitigating circumstances or for a determinate sentence of thirty to fifty years.
¶14 Brooks falls within the first group , and as pertinent here, he sought to invoke the
district court’s discretion to reduce his sentence to a term of thirty years in prison with ten years of mandatory parole. The People opposed Brooks’s motion, arg uing that the provisions of the 2016 sentencing legislation allowing the first group to receive a
determ inate sentence of thirty to fift y years are unconstitutional under the Special Legislation Clause, article V, section 25 of the Colorado Constitution. Specifically, the People contend that the sentencing provisions applicable to the first group create a special class of sixteen persons entitle d to the exclusive privilege of a thirty

- to fifty

- year prison term. According to the People, the Special Legislation Clause, which forbids the passage of local or special laws in certain circumstances, prohibits this sort of favoritism
for a few.
¶15 The dis trict court initially agreed with the People and concluded that the pertinent portions of the 2016 sentencing legislation violated the Special Legislation
Clause. On reconsideration, however, the court reversed itself and found that the People had not car ried the ir burden of proving that the challenged provisions are
unconstitutional. Accordingly, the district court determined that Brooks qualified for a hearing to determine his eligibility for a determinate sentence of between thirty and fifty years with ten years of mandatory parole

.9

¶16 Shortly b efore this resentencing hearing could occur, the People petitioned this court for a rule to show cause why the district court’s final order upholding the constitutionality of the 2016 sentencing legislation should not be vacated . We iss ued the rule to show cause, this matter has now been fully briefed, and we have heard oral argument in this case.


### II. Analysis
¶17 We begin by discussing o ur jurisdiction to hear this matter . We then proceed to discuss the Special Legislation Clause, and we apply our precedent concerning that

c l ause to the facts of this case.


### A. C .A.R. 21 ¶18 An original proceeding under C.A.R. 21 is an extraordinary remedy th at is
limited both in its purpose and availability. Ferrer v. Okbamicael , 2017 C O 14M, ¶ 17,
390 P.3d 836, 841. The exercise of our original jurisdiction under C.A.R. 21 is discretionary. I d. We have generally exercised jurisdiction under C.A.R. 21 “in cases that raise issues of first impression and are of significant public importance.” Id.
¶19 This court has not yet addressed the applicability of the Special Legislation
Clause to the 2016 senten cing legislation, and a significant number of cases pending throughout Colorado implicate this issue . Accordingly, we believe that the exercise of

our original jurisdiction under C .A.R. 21 is warranted and appropriate here

. 

### B
. The Special Legislation Cla use ¶20 Articl e V, section 25 of the Colorado C onstitution prohibits the General
A ssembly from “pass[ing] local or special laws ” in a number of “ enumerated cases , ”10

including, for example, “granting divorces,” “regulating county or township affairs , ” “regulating the practice in courts of justice,” and “granting to any corporation,
association or individual any special or exclusive privilege, immunity or franchise
whatever.” T he section further provides , “In all other cases, where a general law can b e made applicable no special law shall be enacted.” Id.
¶21 T he 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. People v. Canister , 110 P. 3d 380, 382 (Colo. 2005). This provision, however, is not merely a redundant equal protection clause. Id. 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. ” Id. at 38 2

– 83. Since the adoption of our state constitution, we have only rarely concluded that a statute violated the Special Legislation Clause. Id. at 383.
¶22 Modern approaches to the question of whether a statute amounts to prohibited special legislation differ depending on whether the challenged legislation implica tes
one of a rticle V, section 25’s enumerated cases
. See id.
¶23 If the challenged legislation addresses an enumerated case , then we first answer “a threshold question of ‘ whether the classification adopted by the legislature is a real or potential class, or whether it is logically and factually limited to a class of one and thus illusory. ’ ” Id. (quoting In re Interrogatory Propounded by Governor Roy Romer11

on House Bill 91S

- 1005 , 8 14 P.2d 875, 886 (Colo. 1991) )

. If the class created by the challenged legislation is “illusory,” then the legislation will be deemed prohibited special legislation

. Id. Once it is determined that the legislation affects a “genuine” class, however, we address whether the classification is reasonable. See id.
¶24 I f the challenged legislation does not implicate an enumerate d case , then “we are unconcerned with the composition of the class ‘ so long as the legislature has not abused
its discretion. ’ ” Id. (quoting Interrogatory , 814 P.2d at 886).
¶25 Here, the People argue that the 2016 sentencing legislation implicate s two enumerated cases , namely , (1) “regulating the practice in courts of justice” and (2) “granting to any corporation, association or individual any special or exclusive privilege.” Assuming without deciding that the legislation at issue here even implicates the Special Legisl ation Clause, 1 w e need not decide whether either of the case s on which the People rely is implicated in this case because even if the y were , we conclude that the class created by the legislation is genuine and not illusory and that the classification adopt ed by the legislature is reasonable. We proceed to explain why this is so.



### 1. T he Class a t Issue Is Not Illusory
¶26 We have recognized that w hether a classification is “ logic ally and factually
limited to a class of one and thus illusory” depends on a number of factors, including ,

1 In this regard, we acknowledge the issue raised in Justice (now

- Chief Justice) Coats’s dissent in Canister , 110 P.3d at 386

– 88 (Coats, J., dissenting), as to whether the Special Legislation Clause is even implicated in a case like this involving curative legislation adopted after prior legislation has been deemed unconstitutional.12

but not limited to, (1) the class’ s size, cf. Interrogatory , 814 P.2d at 886 ( noting that if no enumerated case is implicated , then “the size of the class becomes irrelevant so long as the legislature has not abused its discr etion ”) ; (2) whether the challenged legislation was limited as to time in its operation, Canister , 110 P.3d at 383

– 84; (3 ) the potential future applicability of the legislation , see id. at 384; and (4 ) the extent to which the legislation appears to have “singl e[d] out” or “ targeted ” the class for special treatment ,

see id. at 38 4

- 8 5 (“No matter how abhorrent the crimes that Canister committed are, the legislature cannot single him out for special punishment.”); Vitetta v. Corrigan , 240 P.3d 322, 328 (Colo . App. 2009) (“ [The Special Legislation Clause] bars law s targeted at specific parties and incapable of more general application .”)

. We address each of these
factors in turn.
¶27 With respect to the class’s size, although our opinion in Interrogatory refer r ed to a “class of one ” as illusory, Interrogatory , 814 P.2d at 886, we have recognized that
class es composed of more than one member also can be illusory , s ee , e.g. , Canister , 110 P.3d at 385 (invalidating legislation “designed to solely apply to two people” ). W e have never held that a c lass as large as sixteen was illusory, however, and th e class’s
size here thus militates against an invalidation of the 2016 sentencing legislation as unconstitutional special legislation.
¶28 With respect to any time limitation, we note that the 2016 sentencing legislation, although directed to juveniles who committed class 1 felonies in a certain time frame , is
unlimited as to time in its operation. Cf. In re Senate Bill No. 95 , 361 P.2d 350, 35413

(Colo. 1961) (noting that the legislation at issue contained a date on which it would be repealed and therefore, once it had accomplished the particular purpose for which it was adopted, it “would die before it could possibly accomplish a like purpose in any other pla ce”). Accordingly, t his factor, too, suggests that the class at issue is genuine.
See Canister , 110 P.3d at 383

– 84.
¶29 Related to the question of whether the 2016 sentencing legislation contains any time limitation, we also consider the “potential future ap plicability” of th at legislation

. Specifically, we look to whether the class is “ drawn so that it will never have any members other than those targeted by the legislation.” Canister , 110 P.3d at 38 4. Here, although the People contend that the class of s ixteen can never inclu de any other members, we disagree.
¶30 As Brooks contends, the 2016 sentencing legislation, and specifically section
18

- 1.3

- 401(4)(c)(I) (A) , could conceivably apply to a “cold case , ” that is, a case in which a

now - unknown person is convicted and sentenced in the future for a felony murder
committed on or after July 1, 1990 and before July 1, 2006 when that person was a juvenile. Although t he People argue that contrary to the eligibility requirements of
section 18

- 1.3

- 401(4)(c)(I), this person will never be convicted or sentenced during the time period of July 1, 1990 to July 1, 2006 and t herefore could never have receive d a mandatory LWOP sentence or be eligible for consideration under the revised statute ,

w e are not persuaded.14

¶31 The People’ s argument appears to be premised on the view that the juvenile

must be convicted or sentenced on or after July 1, 1990 and before July 1, 2006 , but that is not what the statute says. It concerns persons convicted as adults of a class 1 felony,
whi ch felony was committed in the above

- noted time frame and who received a mandatory LWOP sentence upon conviction of that crime

. See id. Accordingly, the statute requires only that the offense be committed in the referenced time frame. It does not require that either the conviction be entered or the sentence be received in that time
frame.
¶32 Moreover, under the People’s interpretation, if a future cold case defendant were
to be convicted of a felony murder t hat he or she committed as a juvenile on or after July 1, 1990 and before July 1, 2006 , then no constitutional sentence created by the legislature would apply. T he law in effect at the time an offense is committed generally
controls the sentence to be imp osed for that offense

. People v. Cali , 2018 COA 61, ¶ 8 ,

___ P.3d ___ . The sentencing law in effect in the above

- referenced time frame, however,
which dictated a mandatory LWOP term for felony murders committed by juveniles during that period , has now be en declared unconstitutional . Moreover, prior to the 2016 sentencing legislation, the legislature had not provided for any other applicable sentence. Accordingly, if the People were correct, then, as occurred in Tate , 352 P.3d at 970, the courts, rather than the legislature, would be tasked with filling the legislative
gap . We do not agree that this should be the preferred mechanism for deciding the question of legislative prerogative at issue

. E ven if it were, however, applying the15

reasoning in Tate , i n which we asked “what the legislature would have imposed” had it
known that its sentenc ing scheme would be invalidated, i d. , we would likely look to
section 18

- 1.3

- 401(4)(c)(I) (A) as the best indication of what the legislature would have
done.
¶33 In addition to the possibility of a cold case defendant, as amicus curiae th e Denver District Attorney pos i t s, the class of sixteen could also potentially expand by way of a post

- conviction challenge. For example , a juvenile might have been charged as an adult and convicted of both murder after deliberation and felony murder for acts
committed on or after July 1, 1990 and before July 1, 2006 . Had this occurred, the trial court could have entered judgment either on a generic count of murder or on a single
count of murder after deliberation and then sentenced the juvenile to a mandatory
LWOP term

. T h e juvenile could then, however, initiate and prevail in a post

- conviction proceeding seeking to invalidate his or her pri or conviction , and a post

- conviction order in favor of the juvenile might result in an amended judgment reflecting a conviction for felony murder. See Crim. P. 35(c) (3)(V) (“If the court finds that defendant is entitled to postconviction relief, the court shall make such orders as may appear appropriate to restore a right which was violated, such as vacating and setting aside the judg ment, imposing a new sentence, granting a new trial , or discharging the defendant .”). Were this to occur, the class of sixt een would expand

. ¶34 For these reasons, the potential future applicability of the legislation at issue weighs against a conclusion that th at legislation violates the Special Legislation Clause.16

¶35 In reaching this conclusion, we are not persuaded by t he People ’s assertion that
section 18

- 1.3

- 401(4)(c) (I) would not apply to the juvenile in the above

- described post

- conviction scenario because the statute applies only to those convicted of a felony
murder committed on or after July 1, 1990 and before July 1, 2006 an d who received a mandatory LWOP sentence for that conviction. T he People contend that this juvenile

w ould never have receive d a mandatory LWOP sentence for felony murder as required for eligibility under the challenged provision. For several reasons, we disagree

. ¶36 First, as set forth above, we perceive nothing in section 18

- 1.3

- 401(4)(c)(I) that requires the conviction or sentencin g to have occurred on or after July 1, 1990 and
before July 1, 2006 , as the People appear to presume.
¶37 Second, to the extent that the People’s argument hinges on the statute’s reference to a person “who received a sentence to life imprisonment without the possibility of parole,” § 18

- 1.3

- 401(4)(c)(I), the juvenile in o ur hypothetical post

- conviction challen ge satisfies this criterion and therefore qualifies for possible determinate sentencing under
the statute

. ¶38 Lastly , for the reasons set forth above, the People’s interpretation would leave
trial court s with no constitutional o ptions for sentencing in the ab ove - described post

- conviction scenario . We do not believe that the legislature would have intended such a result, nor are we willing to countenance this result in the circumstances presented here.17

¶39 For these reasons, we reject the People’s contention that the 2016 sentencing legislation has no potential future applicability.
¶40 Finally, with respect to whether the 2016 sentencing legislation “single[d] out” or “targeted” a class for special treatment , we have indicated that legislation does so when, for exampl e, a bill was “unquesti onably conceived, cut, tailored and amended to accomplish a particular purpose with reference to a particular area.” In r e S enate Bill
No. 95 , 361 P.2d at 354

. In re Senate Bill No. 95 provides a good example of such a bill.
In th at case, the city of Denver wished to annex the town of Glendale. Id. at 353

. After Glendale voters, pursuant to procedures decreed by then

- existing law, twice refused by
election to be annexed, proponents of the annexation introduced statewide legislation
that would have allow ed a city that surrounded a certain

- sized town for a defined period of time to annex that town by compulsion and without having to obtain the town’s approval in an election, as otherwise required by then

- existing law. Id. at
351

- 53 . W e observed, however, that this legislation could apply only to Denver and
Glendale: “We would be blind to stark reality indeed if we assumed the possibility of any other geographical areas in Colorado to which [the statute] would apply, save and except the city of Denver and the town of Glendale. ” Id. at 353. On these facts, w e concluded t hat the legislation at issue did “exactly what the constitution forbids in plain language.” Id. at 354; see also id. (observing that “ [t]he thin veneer of language used to ‘get around’ the constitutional prohibition, and to give the measure a mask of general application , falls from the face of the bill when considered in light of common18

knowledge of which we take judicial notice

. ” ). We thus held that the l egislation was a local or special law in violation of the Special Legislation Clause. See i d. at 353.
¶41 The circumstances of the present case bear little resemblance to In re Senate Bill
No. 95

. Here, the legislature did not conceive, cut, or tailor the legislation to accomplish a particular purpose with respect to a particular favored person or entity . Rather, the Supreme Court’s decisions in Miller and Montgomery demanded that the legislature act to remedy the unconstitutional sentences issued between 1990 and 2006 and to fill the statutory gap created by tho se decisions

. Nor do we perceive any basis to conclude that in adopting the 2016 sentencing legislation, the legislature employed statutory language

to “get around” the special legislation clause. See In re Senate Bill No. 95 , 361 P.2d at
354. And t he fact that the 2016 sentencing legislation has potential future applicability
to unknown class members demonstrates that the legislature neither “singled out” nor “targeted” any particular persons for special treatment

. Thus, this last factor, too, weighs against a conclusion that the 2016 sentencing legislation creates an illusory class.
¶42 For these reasons, we conclude that the class created by the 2016 sentencing legislation is genuine and not il lusory.
¶43 In so concluding, we are unpersuaded by t he People ’s contention that the class at issue is necessarily illusory because it is “closed.” We reject this assertion for three

reasons. ¶44 First, for the reasons discussed above, we disagree with the People’s premise that the class at issue here is, in fact, closed.19

¶45 Second, even if the class were arguably closed, our case law in the context of the Special Legislation Clause has not adopted or developed the distinction between “open” and “closed” classe s on which the People rely

. ¶46 Third, we disagree with the People’s contention that every “closed” class is, by definition, illusory. Such an interpretation would amount to a blanket prohibition on the passage of any legislation concerning closed classes in enumerated cases, however large those classes, no matter their composition, and regardless of the nature of the underlying legislation. The People cite no applicable authority to support so drastic a result, and we have seen none. Moreover, adop ting the People’s reasoning could potentially invalidate a broad swath of legislation previously deemed constitutional. See, e.g. , Gates Rubber Co. v. S. Suburban Metro. Recreation & Park Dist. , 516 P.2d 436,
437

– 38 (Colo. 1973) (upholding as constitutional l egislation with a grandfather clause exempting a closed class of pre - existing properties in a special district from certain ad
valorem tax es because grandfather clauses properly p reserve and protect interests existing at the time of a legislative enactment )

. Absent any applicable authority supporting the People’s position , we decline to overturn such settled precedent

. ¶47 Accordingly, we conclude that the class at issue is genuine, and we proceed to
address the reasonableness of the legislative classification at issue

.



### 2. T he Classification a t Issue I s Reasonable
¶48 W hen legislation implicates an enumerated case and affects a genuine class, we must uphold the legislation “if we can conceive of any reasonable relation between [ the20

legislation’s ] legitimate stated purposes and the classifications made. ” Interrogatory , 814 P.2d at 8 87 ; accord Canister , 110 P.3d at 383

. “ Th[ose] classification [s] must be based on some distinguishing peculiarity and must reasonably relate to the purpose of
the statute.” Interrogato ry , 814 P.2d at 887

. As the party challenging the legislation, the People bear the burden of showing that the classification is unreasonable

. See Poudre Valley Rural Elec. Ass’ n v. City of Loveland , 807 P.2d 547, 553 (Colo. 1991)

. ¶49 Th e parties do not appear to dispute that the General Assembly enacted the 2016 sentencing legislation to close the sentencing gap created by the Supreme Court’s
decisions in Miller and Montgomery

. On its face, this constitutes a legitimate legislative
purpose. See People v. Deroulet , 48 P.3d 520, 526 (Colo. 2002) (noting the General Assembly’s “primacy

. . . in crafting sentencing schemes”).
¶50 We therefore must consider whether a reasonable relation ship exists between the legislature’s legitimate purpose and the classifications made

. See Interrogatory , 814 P.2d at 887. The 2016 sentencing legislation distinguishes members of the cl ass of
sixteen from other juveniles tried as adults for class 1 felonies in two ways: (1) based on the crime of which they were convi cted (i.e., felony murder versus other forms of first degree murder ) and (2) based on the time of their offense (i.e., committed on or after July 1, 1990 and before July 1, 2006 versus committed at any other time )

. The People challenge both of these disti nctions as unreasonable, and we address them in turn.
¶51 Regarding the distinction s made by the legislature based on the crime s committed , we have said, “It is clearly within the legislature’s prerogative to establish21

the penalties

. . . which shall apply to specific criminal offenses.” People v. Bramlett , 573 P.2d 94, 97 ( Colo. 1977)

. Consequently , the General Assembly may establish more severe penalties for conduct that it believes has greater social impact and more grave
consequences. Smith v. People , 852 P.2d 420, 421 (Colo. 1993)

. ¶52 As the district court noted , the 2016 sentencing legislation likely reflects a policy judgment that a juvenile’s conviction for felony murder may warrant a lesser penalty
than a convict ion for a different class 1 felony. This policy choice rests squarely with
the legislature, and we perceive no basis for deeming it unreasonable here

. See
Bramlett , 573 P.2d at 97 (“The matter properly lies with the legislature subject to the limits of the constitution.”)

. ¶53 T he 2016 sentencing legislation’s distinction between offenses committed on or after July 1, 1990 an d before July 1, 2006 , on the one hand, and those committed a t any
other time , on the other, is likewise reasonable

. This distinction plainly manifests the General Assembly’s intent to f ill the gap created by Miller and Montgomery ’ s invalidation of the mandatory LWOP sentencing scheme that existed in Colorado during that period. Additionally , as the district court observed , Brooks and other juveniles sentenced for class 1 felonies commit t ed during this period are uniquely
situated because , by the time of the district court’s opinion, they would have been
servi ng unconstitutiona l sentences for at least a decade ( two decades in Brooks’s case)

. Moreover, t hroughout these sentences, these class members have l ived with the belief that they would never have an opportunity to be released from prison. These facts22

mak e Brooks and his fellow class members different from juvenile defendants
sentenced at other times , and in our view, they reasonably justify different legislative

treatment.
¶54 Accordingly, we conclude that the 2016 sentencing legislation classification is
reasonable.


### III. Conclusion
¶55 For these reasons, we conclude that the 2016 sentencing legislation affects a genuine class and that the People have not met the ir burden o f showing that the legislative classification s at issue are unreasonable. Accordingly, we hold that the 2016
sentencin g legislation does not violate the Special Legislation Clause.
¶56 We therefore discharge the rule to show cause.
CHIEF JUSTICE COATS concurs in the judgment , and JUSTICE MÁRQUEZ joins in the concurrence. JUSTICE SAMOUR does not participate.1

CHIEF JUSTICE COATS, concurring in the judgment.
¶57 While I would also find that the amendment to the juvenile sentencing scheme at issue here does not offend the Special Legislation Clause of the state constitution, I am unconvinced by the majority’s efforts to distinguish our rationale in People v. Canist er , and therefore I do not join the majority opinion. Instead, I believe the situation presented by the case before us today amply demonstrates that our analysis of the constitutional bar to special legislation in Canister went awry and requires a course correction. Rather than perpetuate an unsustainable analytic framework, through what I for one consider implausible and unsupportable distinctions, I believe it is time to simply acknowledge that a class, however fortuitously small, imposed upon us by
Uni ted States Supreme Court action is never “illusory,” and curative legislation concerning that class cannot be a “special law” within the contemplation of our
constitution.
¶58 Some thirteen years ago, in People v. Canister , 110 P.3d 380 (Colo. 2005), we
struck down as special legislation an act of the General Assembly permitting a jury to be impaneled for the penalty phase of a capital case, where the defendant had already been convicted at the time capital sentencing by three

- judge panels, like the procedure

r equired by Colorado law, was barred by a Supreme Court opinion overturning long

settled law to the contrary. Because only two defendants, as fate would have it, fell within the class for which the curative legislation was required, rather than addressing the constitutionality of the statute in terms of the well

- accepted ex post facto analyses of2

both the state and federal constitutions, we found “the classification adopted by the legislature [to be] logically and factually limited to a ‘class of one,’ and thus [to be] illusory.” Id. at 385. The prosecution asserts that the curative legislation at issue in this case is indistinguishable from that struck down by us in Canister , excepting only that
Canister was a capital case and the statute in question pote ntially disadvantaged, rather than advantaged, the defendant, neither of which should be of consequence in a special legislation, as distinguished from an ex post facto, analysis.
¶59 Although the terms “special” and “general laws” are not further defined in t he constitution, there can be little question but that the constitutional bar to special legislation, which was adopted in the late nineteenth century by the vast majority of states in the union, was inspired by, and aimed at curbing, legislative favoritis m of the economic elite at the expense of the general welfare. See generally Justin R. Long, State Constitutional Prohibitions on Special Laws , 60 Clev. St. L. Rev. 719 (2012); Donald Marritz, Making Equality Matter (Again): The Prohibition Against Specia l Laws in the Pennsylvania Constitution , 3 Widener J. Pub. L. 161 (1993); Anthony Schutz, State Constitutional Restrictions on Special Legislation as Structural Restraints , 40 J. Legis. 39 (2013

- 14).
¶60 Because a law that expressly benefits only a named indiv idual or entity is more easily identified as a private, or special, law, there is clearly an impetus, in evading the prohibition, for defining in general class terms any laws singling out such individuals or entities for special benefit, and we have in the past referred to the “classes” created3

by such laws as “illusory” classes. See, e.g. , In re Senate Bill No. 95 , 361 P.2d 350 (Colo. 1961). But a class dictated by constitutional necessity, no matter how few its members, is clearly not illusory. Similar ly, defining a “class” in such a way as to admit no additional members can sometimes be a technique for limiting the special benefit to a targeted individual, but the fact that a class is “closed” is hardly indicative that it is “illusory,” or not “genuine .” A class may be small or closed, or both, simply because the problem requiring legislative solution, especially if dictated by an intervening judicial determination of constitutional strictures, is unique to a class of that size and
limitation.
¶61 For per haps obvious reasons, the majority does not assert, as did the trial court, that the statute in question fails even to regulate practice in the courts of justice in this jurisdiction. Instead the majority labors, over the course of some twenty

- five
paragr aphs, to distinguish the statute at issue in this case from the one we struck down as special legislation in Canister , on the grounds that the latter, but not the former, involved a “closed” class. I consider unconvincing, and in fact untenable, the major ity’s conclusion that the class defined and benefited by the relevant statute can yet be expanded.
¶62 The majority offers two scenarios in which it opines that the class of those benefited by the statute’s new formula for sentencing juveniles convicted of f elony murder could expand. As to the first, the majority suggests that despite being limited by its own terms to juveniles convicted of class 1 felonies committed between 1990 and4

2006 and sentenced to life without parole, as mandated by the controlling s tatute at the time, the class of those entitled to the felony murder resentencing formula could include someone who was a juvenile at the time but is later convicted as an adult for committing such a felony during the designated period. The majority reaso ns either 1)
that although the former sentencing provision has been found unconstitutional, and therefore no one can be lawfully sentenced to life without parole as required by it, such
a “cold case” defendant would nevertheless still have to be sentenced under the unconstitutional statute and therefore fall within the statutorily defined class or 2) that
because the former sentencing provision has now been found unconstitutional, the newly convicted defendant would have to be sentenced under the current f elony murder formula and therefore come within the benefited class, despite not meeting the statutory definition of that class by having originally been sentenced to life without parole. In addition to being contrary to what we decided in People v. Tate , 2015 CO 42, 352 P.3d 959, concerning the penalty for a juvenile convicted of a class 1 felony committed during the period for which the controlling sentencing statute was unconstitutional, I find the majority’s explanation not only hard to decipher but als o unconvincing.
¶63 With regard to the second scenario, the majority opines that the class could be expanded by a successful post

- conviction challenge to only a deliberation murder finding against a juvenile defendant who was sentenced to life without parole a s required by the unconstitutional statute on the basis of jury findings of both5

deliberation and felony murder. While this eventuality is certainly conceivable, it is hardly apparent why such an individual should be categorized as an addition to, rather than an already existing member of, the class. The statute clearly defines the class to include a juvenile convicted of felony murder committed during the applicable time period and sentenced to life without parole, whether or not a separate conviction fo r deliberation murder prevents him from realizing any actual benefit from the statutory reduction of felony murder by a juvenile to the status of lesser homicide offense. The elimination of other convictions in no way alters the statutory definition of th e class in question, but if it could, and if we were to hold that the constitutionality of the statute turned on the possibility of expanding the class membership in this way rather than simply based on the curative nature of the legislation in question, w e would, at least to my mind, be doing no one a favor.
¶64 In my view, we have come to use concepts like “closed” or “illusory” in ways that no longer serve the purpose for which they were developed, and our constitutional prohibition against special laws has come to be largely superseded by the subsequent development of modern equal protection law. At a minimum, it seems clear that curative legislation concerning a class dictated by Supreme Court action, rather than by a choice of the General Assembly at all, cannot be a special law within the contemplation of our constitution. Rather than saddle the General Assembly and lower courts of the jurisdiction with the kind of unpredictable and unworkable distinctions exemplified by the current litigation, and the c oncomitant burden of delay imposed6

upon the intended beneficiaries of the legislation like that at issue here, I believe it is
time to retreat from our rationale in Canister , whether its ultimate conclusion about the constitutionality of the legislation at issue there was or was not correct, and conclude that amendatory legislation required as a matter of constitutional necessity, regardless of the number of individuals or entities impacted by it, in no way implicates the so

called Special Legislation Claus e of the Colorado Constitution.
¶65 Because I would therefore also discharge the rule, I concur in the judgment of the

court. I am authorized to state that JUSTICE MÁRQUEZ join s in this concurrence.