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ADVANCE SHEET HEADNOTE
April 27, 2020
2020 CO 29
No. 19SA143 Amica Life Insurance Company v. Wertz—Non-Delegation Doctrine—
Interstate Compacts—Suicide Exclusion Policies.
This case requires the supreme court to answer the following certified
question from the Tenth Circuit Court of Appeals:
May the Colorado General Assembly delegate power to an interstate
administrative commission to approve insurance policies sold in
Colorado under a standard that differs from Colorado statute?
Answering the certified question narrowly, the supreme court now
concludes that the General Assembly did not have the authority to delegate to the
Interstate Insurance Product Regulation Commission the power to issue a
standard authorizing the sale of life insurance policies in Colorado containing a
two-year suicide exclusion when a Colorado statute prohibits insurers doing
business in Colorado from asserting suicide as a defense against payment on a life
insurance policy after the first year of that policy.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 29
Supreme Court Case No. 19SA143
Certification of Question of Law
United States Court of Appeals for the Tenth Circuit Case No. 18-1455
Plaintiff Counter Defendant-Appellee:
Amica Life Insurance Company,
v.
Defendant Counterclaimant-Appellant:
Michael P. Wertz.
Certified Question Answered
en banc
April 27, 2020
Attorneys for Plaintiff-Appellee:
Cozen O’Connor
Christopher S. Clemenson
Denver, Colorado
Cozen O’Connor
Lisa D. Stern
West Conshohocken, Pennsylvania
Attorneys for Defendant-Appellant:
The Law Office of Ruth Summers, LLC
Ruth Summers
Boulder, Colorado
Attorneys for Amicus Curiae Colorado Trial Lawyers Association:
McDermott Law, LLC
Timothy M. Garvey
Denver, Colorado
Attorneys for Amici Curiae National Association of Insurance Commissioners
and Interstate Insurance Product Regulation Commission:
Holland & Hart LLP
Marcy G. Glenn
Melissa Y. Lou
Denver, Colorado
JUSTICE GABRIEL delivered the Opinion of the Court.
2
¶1 This case requires us to answer the following certified question from the
Tenth Circuit Court of Appeals:
May the Colorado General Assembly delegate power to an interstate
administrative commission to approve insurance policies sold in
Colorado under a standard that differs from Colorado statute?
¶2 The certified question arises from a dispute in which plaintiff Amica Life
Insurance Company seeks a declaratory judgment that it is not required to pay
defendant Michael P. Wertz benefits under a life insurance policy naming Wertz
as the beneficiary. The policy, which was issued in compliance with a standard
enacted by the Interstate Insurance Product Regulation Commission (the
“Commission”), contained a two-year suicide exclusion, and the insured
committed suicide more than one year but less than two years after Amica had
issued the life insurance policy to him. Wertz contends, however, that the policy’s
two-year suicide exclusion is unenforceable because it conflicts with a Colorado
statute, section 10-7-109, C.R.S. (2019), which provides:
The suicide of a policyholder after the first policy year of any life
insurance policy issued by any life insurance company doing
business in this state shall not be a defense against the payment of a
life insurance policy, whether said suicide was voluntary or
involuntary, and whether said policyholder was sane or insane.
Wertz asserts that the Colorado General Assembly could not properly delegate to
the Commission the authority to enact a standard that would effectively override
this statute.
3
¶3 We agree with Wertz. Accordingly, answering the certified question
narrowly, we conclude that the General Assembly did not have the authority to
delegate to the Commission the power to issue a standard authorizing the sale of
life insurance policies in Colorado containing a two-year suicide exclusion when
a Colorado statute prohibits insurers doing business in Colorado from asserting
suicide as a defense against payment on a life insurance policy after the first year
of that policy.
I. Facts and Procedural History
¶4 In 2004, the Colorado General Assembly passed legislation to join with other
states to establish the Interstate Insurance Product Regulation Compact, section
24-60-3001, C.R.S. (2019) (the “Compact”). The Compact’s purpose is, among
other things, to create the Commission and to “develop uniform standards for
insurance products covered under the Compact.” Id. at art. I, §§ 2, 6.
¶5 As pertinent here, the Compact authorized the Commission to promulgate
rules, to establish uniform standards governing the form of insurance policies
covered under the Compact, and to review and approve such insurance policies.
Id. at art. IV, §§ 1–3. Under the Compact, such rules, standards, and complying
policies are given “the force and effect of law and shall be binding in the
Compacting States.” Id.
4
¶6 In accordance with the foregoing authority, the Commission established
certain Individual Term Life Insurance Policy Standards, IIPRC-L-04-I (2016)
(“Standards”). As pertinent here, one of these Standards provides, “The suicide
exclusion period shall not exceed two years from the date of issue of the policy.”
Id. at § 3(Y)(3).
¶7 Pursuant to this Standard, the Commission authorized the sale of life
insurance policies containing a two-year suicide exclusion in Compacting States
like Colorado. Id. In Colorado, however, by statute, insurers doing business in
this state may not assert suicide as a defense against payment of a life insurance
policy after the first year of that policy. See § 10-7-109. Thus, this case presents a
scenario in which the policy at issue complied with the Commission’s
suicide-exclusion Standard but in which enforcement of that Standard amounts to
the assertion of a defense that is precluded under Colorado statutory law.
¶8 Specifically, on January 28, 2014, Amica issued a ten-year convertible level
term life insurance policy (with an annual renewable term provision) to Martin
Fisher. The policy was in the face amount of $500,000 and named Wertz as the
beneficiary. Pursuant to the Commission’s Standards, the policy included a
suicide-exclusion section that provided, “Suicide of the Insured, while sane or
insane, within two (2) years from the Date of Issue is not covered under this
policy.”
5
¶9 Thereafter, on March 12, 2015—that is, more than one year but less than two
years after the policy was issued—Fisher committed suicide. Wertz then
submitted a claim for the death benefit under the policy, but Amica denied that
claim, relying on the policy’s two-year suicide exclusion. Amica Life Ins. Co. v.
Wertz, 272 F. Supp. 3d 1239, 1244 (D. Colo. 2017).
¶10 Recognizing the imminent dispute between the parties, Amica filed suit in
the United States District Court for the District of Colorado, seeking a declaratory
judgment that it had properly denied Wertz’s claim. Id. Wertz responded that the
two-year suicide exclusion in the policy violated Colorado state law and should
be declared unenforceable. Id. In addition, he filed counterclaims for reformation
of the policy, breach of contract, and common-law bad faith breach of insurance
contract. Id. Amica then moved for summary judgment, asserting that, as a matter
of law, the Standards control over section 10-7-109. Id. at 1245.
¶11 The district court determined that to decide the summary judgment motion
before it, it could not avoid the question of the validity of the Compact under the
Colorado Constitution. Id. at 1247. In particular, after observing that an
administrative regulation that is inconsistent with or contrary to a statute is void,
the court noted Amica’s argument that interstate compacts “operate in a different
legal dimension, where things can happen that normally do not happen.” Id. at
6
1247–48. Finding that the authorities on which Amica relied did not establish this
principle, the court certified the following question to us:
Does the Colorado Constitution empower the Colorado Legislature
to enter into the Interstate Insurance Product Regulation Compact,
Colo. Rev. Stat. § 24-60-3001, considering that: (a) the Compact will
not be approved by the United States Congress; (b) the Compact
creates an administrative body with power to promulgate rules and
regulations with the force of law in Colorado; and (c) such rules and
regulations supersede any Colorado statute to the extent of a conflict
between the rule or regulation and the Colorado statute?
Id. at 1248, 1255.
¶12 We declined to accept this certified question, and the district court
ultimately concluded, “to its surprise,” that “the Colorado Legislature may validly
delegate to an administrative agency the power to promulgate a regulation that
modifies a statute.” Amica Life Ins. Co. v. Wertz, 350 F. Supp. 3d 978, 982 (D. Colo.
2018). The court thus concluded that there was no barrier to the legislature’s
delegation of authority to the Commission here and therefore the two-year suicide
exclusion was valid and Amica had properly denied payment of the death benefit.
Id.
¶13 Wertz then appealed to the Tenth Circuit. That court subsequently certified
its own question to us, and, reframing that question, we agreed to decide whether
the Colorado General Assembly may delegate power to an interstate
7
administrative commission to approve insurance policies sold in Colorado under
a standard that differs from Colorado statute.
II. Analysis
¶14 We begin by discussing our jurisdiction under C.A.R. 21.1 and the
applicable standard of review. Next, we set forth the pertinent principles
underlying the non-delegation doctrine. Last, we apply those principles to the
facts presented here and conclude that the General Assembly did not have the
authority to delegate to the Commission the power to adopt the Standard at issue,
which effectively overrides section 10-7-109 for Commission-approved policies
sold in Colorado by insurers authorized to do business here.
A. Jurisdiction and Standard of Review
¶15 Under C.A.R. 21.1, we may answer questions of law certified to us by a
federal court if the proceeding before that court involves “questions of law of this
state which may be determinative of the cause then pending in the certifying court
and as to which it appears to the certifying court that there is no controlling
precedent in the decisions of the supreme court.” We agreed to answer the
certified question from the Tenth Circuit here because it involves a significant
question of first impression as to the reach of the non-delegation doctrine in
Colorado, and it appears that our answer to this question may be determinative of
the underlying dispute.
8
¶16 The matter before us presents a question of law, and we review such
questions de novo. See Hernandez v. Ray Domenico Farms, Inc., 2018 CO 15, ¶ 5,
414 P.3d 700, 702.
B. The Non-Delegation Doctrine
¶17 Of our three branches of government, only the General Assembly has the
power to make law. See Colo. Const. art. III (“The powers of the government of
this state are divided into three distinct departments, —the Legislative, Executive
and Judicial; and no person or collection of persons charged with the exercise of
powers properly belonging to one of these departments shall exercise any power
properly belonging to either of the others, except as in this Constitution expressly
directed or permitted.”); id. at art. V, § 1(1) (“The legislative power of the state shall
be vested in the general assembly. . . .”); id. at art. V, § 17 (“No law shall be passed
except by bill, and no bill shall be so altered or amended on its passage through
either house as to change its original purpose.”).
¶18 Accordingly, it has long been settled that the legislature may not delegate
its legislative power to another agency or person. People v. Lowrie, 761 P.2d 778,
781 (Colo. 1988); see also People ex rel. Dunbar v. Giordano, 481 P.2d 415, 416 (Colo.
1971) (“It is a general rule of law that a legislative body may not delegate the power
to make a law or define a law, but it may delegate the power to determine some
fact or state of things to effectuate the purpose of the law.”).
9
¶19 This so-called non-delegation doctrine derives from the constitutional
separation of powers. Lowrie, 761 P.2d at 781. It does not, however, absolutely
preclude the legislature from delegating certain kinds of authority to an
administrative agency. In particular, we have long recognized a distinction
between the power to make law, which is non-delegable, and the authority to
execute a law, which the legislature may properly delegate to an administrative
agency. See, e.g., Swisher v. Brown, 402 P.2d 621, 627 (Colo. 1965); see also People v.
Lepik, 629 P.2d 1080, 1082 (Colo. 1981) (“Although the power to make a law may
not be delegated, the power to determine a state of facts upon which the law
depends may be delegated.”).
¶20 Explaining the limits of the legislature’s power to delegate to an
administrative agency the authority to execute a law, in Cottrell v. City and County
of Denver, 636 P.2d 703, 709 (Colo. 1981), we stated that the legislature may
delegate power to an administrative agency as long as “there are sufficient
statutory standards and safeguards and administrative standards and safeguards,
in combination, to protect against unnecessary and uncontrolled exercise of
discretionary power.” Absent such standards, the delegation will be deemed to
violate the constitutionally required separation of powers. Lepik, 629 P.2d at 1082.
¶21 Although the foregoing principles are easily stated, the line between the
non-delegable power to make a law and the delegable authority to execute a law
10
is not readily susceptible of concise definition. Our case law, however, provides
some direction.
¶22 In Lepik, 629 P.2d at 1082, for example, we made clear that the legislature
cannot delegate to an administrative agency the authority to declare an act a crime.
The statute at issue in that case prohibited the introduction into a detention facility
of “contraband.” Id. at 1081. The statute, however, effectively delegated to the
administrative head of the detention facility the authority to define the term
“contraband.” Id. at 1081–82. We concluded that because the statute effectively
gave unbridled discretion to the administrative head to define the crime, the
statute violated the basic principle of law that only the legislature may declare an
act a crime. Id.; see also Casey v. People, 336 P.2d 308, 309 (Colo. 1959) (“Only the
legislature may declare an act to be a crime. That precious power cannot be
delegated to others not elected by or responsible to the People.”) (citation omitted).
¶23 Similarly, we have consistently concluded that the legislature may not
delegate to another person or agency the authority to impose statewide taxes. See,
e.g., Miller Int’l, Inc. v. State Dep’t of Revenue, 646 P.2d 341, 345 (Colo. 1982); see also
Cohen v. State Dep’t of Revenue, 593 P.2d 957, 961 (Colo. 1979) (“It is elemental that
only the General Assembly may originate taxes.”). In Miller, 646 P.2d at 343, for
example, the Department of Revenue promulgated a regulation that mandated
how certain income and sales of a multi-state corporation are to be allocated for
11
tax purposes. We determined, however, that this regulation was inconsistent with
the state apportionment statutes. Id. at 345. Accordingly, we concluded that in
passing such a regulation, the Department had effectively amended and expanded
existing tax laws. Id. Because the Department lacked that authority, we declared
the regulation void. Id.
¶24 And perhaps most pertinent here, we have struck down administrative
regulations that circumvented the clear terms of a statute. See, e.g., Graham
Furniture Co. v. Indus. Comm’n of Colo., 331 P.2d 507, 510 (Colo. 1958). In Graham
Furniture, for example, an administrative regulation afforded participants in a
union election certain rights to challenge the rights of others to vote in the election.
Id. In our view, however, this regulation contradicted a statute that set forth how
one attains the status of an eligible voter. Id. Accordingly, we struck down the
regulation, concluding, “When a statute clearly provides a method for
accomplishing a desired result, it follows that an administrative commission
cannot set up a regulation which is contrary thereto. Its regulations must fit within
the framework of the statute itself.” Id. We added, “To hold that the clear words
of the statute can be circumvented by a regulation adopted by the Commission is
to ignore their plain meaning and confer legislative powers on the Commission.”
Id.
12
¶25 In contrast to the foregoing lines of authority, we have observed that the
legislature does not improperly delegate its lawmaking function when it
establishes a definite framework for the law’s operation and then delegates “the
details of rulemaking to an administrative agency to carry out that operation.”
Lowrie, 761 P.2d at 781. Thus, in Lowrie, we upheld a statutory delegation of
authority to the Executive Director of the Department of Revenue, who was
designated as the state licensing authority for the Colorado Liquor Code, to make
such rules and regulations as were necessary for the proper regulation and control
of alcohol sales and the enforcement of the state’s liquor laws. Id. at 779, 783.
¶26 In Lowrie, the statute at issue required that all rules and regulations adopted
by the Director be “reasonable and just,” and it identified the types of subjects that
the rules and regulations could validly address. Id. at 779. In accordance with this
statutory authority, the Director issued regulations prohibiting establishments
that served alcohol from serving intoxicated persons, allowing employees or
patrons to expose certain parts of their bodies, or providing entertainment that
involved certain forms of actual or simulated sexual conduct. Id. at 779–80. The
defendant, who owned a nightclub in which topless dancing was offered as
entertainment, was charged with violating certain of these regulations, and she
moved to dismiss the charges, claiming that the Liquor Code unconstitutionally
delegated to the Director the legislative authority to define criminal conduct. Id.
13
We ultimately rejected this argument, concluding that the Liquor Code had
(1) provided sufficient standards and safeguards to protect against the
unreasonable exercise of the Director’s power and (2) placed limits on the
Director’s authority to make rules and regulations and therefore did not vest him
with unbridled discretion as to rulemaking. Id. at 783.
¶27 The question before us requires us to apply the foregoing principles to
decide whether the legislature’s delegation to the Commission of the authority to
create uniform standards properly included the authority to adopt the Standard
at issue, which effectively overrides Colorado statutory law precluding an insurer
doing business in this state from asserting suicide as a defense to payment on an
insurance policy after the first year of that policy. We turn next to that question.
C. The Suicide-Exclusion Standard
¶28 As an initial matter, we note that no one disputes that the Compact
authorized the Commission to adopt regulations with the force and effect of law
that would be binding on the compacting states, including Colorado. See
§ 24-60-3001, art. IV, § 1. The question before us, however, is whether the
Colorado legislature could properly delegate to the Commission the power to
adopt a suicide-exclusion Standard that effectively overrides a Colorado statute.
We conclude that the legislature could not do so.
14
¶29 Section 10-7-109 “reflects a longstanding public policy in Colorado that
disfavors suicide exclusions.” Renfandt v. N.Y. Life Ins. Co., 2018 CO 49, ¶ 44,
419 P.3d 576, 584. Thus, although the statute allows the assertion of suicide as a
defense to payment on life insurance policies, it limits the right to assert that
defense to the first year of the policy. § 10-7-109.
¶30 The Commission’s suicide-exclusion Standard, however, expands this
limitation and allows insurers who sell Commission-approved policies in
Colorado to assert suicide as a defense to payment for the first two years of the
policy. Standards, at § 3(Y)(3). In this way, the Standard effectively overrides
Colorado statutory law for insurers doing business here.
¶31 In our view, delegating to the Commission the authority to adopt a Standard
that so circumvents the clear language of section 10-7-109 is to confer legislative
powers on the Commission, and pursuant to the authorities discussed above, the
General Assembly may not properly do this. See, e.g., Graham Furniture, 331 P.2d
at 510 (“To hold that the clear words of the statute can be circumvented by a
regulation adopted by the Commission is to ignore their plain meaning and confer
legislative powers on the Commission.”). And this is so even though, under the
Compact, the Colorado Commissioner of Insurance is a member of the
Commission and may have voted in favor of the Standard. If the Commissioner
believes that the Commission should enact a regulation that conflicts with
15
Colorado statutory law, then he must request action from the Colorado General
Assembly because only that body may legislatively override one of its own
enactments.
¶32 In reaching this conclusion, we are not persuaded by Amica’s and its amici’s
various arguments to the contrary. We address these arguments in turn.
¶33 First, we disagree with Amica’s assertion that because the Compact
provided a means for the General Assembly to opt out of any Standard enacted by
the Commission, see § 24-60-3001, art. VII, §§ 3–6, the legislature did not
improperly delegate its legislative authority to the Commission. As an initial
matter, we note that the facts here present a legitimate question as to whether the
Compact’s opt-out provisions were effective, given that the Commission could
give notice of a proposed Standard and the Standard could take effect while the
legislature was not in session. See id. We need not address this question, however,
because even if the opt-out provisions were effective, we have seen no applicable
authority excusing an improper delegation of legislative authority merely because
the legislature could adopt or reject an administrative agency’s legislative action
after the fact, and neither Amica nor its amici cite any such authority. Indeed, in
our view, the General Assembly’s after-the-fact opt-out could not excuse the
Commission’s improper legislative action here because the opt-out would apply
only prospectively, see id. at art. VII, § 5, thus leaving in place the improper
16
Standard in the period between its adoption and the General Assembly’s decision
to opt out.
¶34 Second, neither Estate of Liebhardt v. Tasher, 290 P.2d 1107 (Colo. 1955), nor
People v. Peterson, 734 P.2d 118, 119–21 (Colo. 1987), on which Amica relies,
authorizes the General Assembly to delegate to an administrative agency the
power to adopt regulations that override a state statute.
¶35 In Liebhardt, 290 P.2d at 1108, we stated, “Rules and regulations adopted by
a department of government, unless expressly or impliedly authorized by statute,
are without force or effect if they add to, change or modify existing statutes.”
Relying on this language, Amica contends that our General Assembly can, in fact,
delegate to an administrative agency the authority to alter a statute. Amica,
however, reads our statement in Liebhardt out of context and fails to recognize how
the principle set forth in that case has been consistently applied.
¶36 In Liebhardt, Liebhardt’s aunt died, leaving a large portion of her estate to
him. Id. at 1107. Within three years of the aunt’s death, however, Liebhardt also
died, leaving as his sole heirs his widow and son. Id. At the time, a Colorado
statute provided for a credit on taxes to be paid upon the transfer of certain
property (in Liebhardt, to the widow and son) if, within the prior three years, the
transferor (Liebhardt) had paid taxes on the same property when the property was
transferred to him. Id. at 1108. Although the statute reflected a clear legislative
17
intent to allow credit for the full amount of the tax imposed if the previously
imposed tax exceeded that amount, the Colorado Inheritance Tax Commissioner
had devised a formula of his own to compute the tax credit, and this formula
resulted in a reduction of the credit due under the statute. Id. at 1108–09. We
concluded that the Commissioner lacked the authority to enforce the regulation
adopting his formula, stating:
Rules and regulations adopted by a department of government,
unless expressly or impliedly authorized by statute, are without force
or effect if they add to, change or modify existing statutes. To permit
such a proportionate reduction as that made by the Commissioner in
the instant case would in effect give legal sanction to a power he does
not possess, viz.: authority to amend or add to legislative enactments
concerning inheritance and succession taxes.
Id. at 1108.
¶37 Accordingly, Liebhardt does not allow an agency to alter a statute, as Amica
contends. Indeed, it concluded the opposite. Moreover, when read in context, the
language on which Amica relies reflects nothing more than the fact that
administrative agencies have the power to implement legislative standards if the
legislature authorizes them to do so. And the cases that followed Liebhardt, which
Amica also cites, simply reiterate this point. See, e.g., Graham Furniture, 331 P.2d at
510 (citing Liebhardt and concluding that an administrative commission cannot set
up a regulation that is contrary to a clear statutory mandate); Adams v. Colo. Dep’t
of Soc. Servs., 824 P.2d 83, 86, 89 (Colo. App. 1991) (referencing the Liebhardt
18
standard and concluding that the regulatory scheme at issue was not in conformity
with the agency’s enabling statute and was therefore without force and effect);
Lorance v. Colo. State Bd. of Exam’rs of Architects, 532 P.2d 382, 384 (Colo. App. 1974)
(citing Liebhardt and concluding that the regulatory board at issue had exceeded
its authority by expanding the statutory definition of fraud and deceit to
encompass conduct not covered by the statute).
¶38 Similarly, in Peterson, 734 P.2d at 119–21, a statute allowed the State
Department of Highways to set multiple speed limits applicable to various vehicle
types or weights if the Department determined, on the basis of a traffic
investigation or study, that the speed specified was greater or less than was
“reasonable or safe” under the road and traffic conditions. Id. at 120 (quoting the
statute now codified at section 42-4-1102(1)(a), C.R.S. (2019)). The pertinent
question before us was whether such a provision constituted an improper
delegation of legislative authority to the Department. Id. We concluded that it did
not because we believed, based on the authority discussed above, that the
delegation to the Department contained adequate standards and safeguards to
protect against the uncontrolled exercise of discretionary power by it. Id. at
120–21. In particular, the statute required that the alternative speed limits be
“reasonable and safe” and provided that the Department could only act after
traffic surveys and investigations established that an alteration of the speed limit
19
was necessary. Id. at 121. Accordingly, Peterson did not allow an administrative
agency to adopt a regulation in conflict with a state statute. Instead, the statute at
issue set forth certain standards and delegated to the Department the authority to
implement such standards. As set forth above, we have long permitted such
delegations of authority. See, e.g., Cottrell, 636 P.2d at 709; Lepik, 629 P.2d at 1082.
¶39 Third, we are not persuaded that because the Standard only applies to
Commission-approved policies, whereas section 10-7-109 would continue to apply
to policies approved by the Colorado Commissioner of Insurance, the
Commission’s suicide-exclusion Standard does not conflict with the statute. As
noted above, section 10-7-109 applies to “any life insurance policy issued by any
life insurance company doing business in this state.” (Emphases added.)
Accordingly, whether approved by the Commission or by the Colorado
Commissioner of Insurance, the statute applies as long as the policy was issued by
an insurer doing business here. The Commission’s suicide-exclusion Standard
therefore conflicts with section 10-7-109.
¶40 Fourth, we reject Amica’s contention that the interstate nature of the
Commission here distinguishes this case from the above-described authorities
regarding intrastate delegations of authority to administrative agencies.
Although, to be sure, regulations adopted pursuant to an interstate compact can
at times override conflicting state law, the cases that have so concluded have
20
involved interstate compacts that were approved by acts of Congress, and these
cases have relied on federal preemption or supremacy clause principles. See, e.g.,
Frontier Ditch Co. v. Se. Colo. Water Conservancy Dist., 761 P.2d 1117, 1123 (Colo.
1988) (noting that the Compact at issue was part of federal law, having been
approved by an act of Congress, and was thus preemptive of any conflicting state
law on the same subject). These cases do not assist Amica here, however, because
Congress has not approved the Compact at issue, and Amica cites no law
supporting its apparent position that any interstate compact can supersede
conflicting state law. To the contrary, all of the cases on which Amica relies to
support its argument involved congressionally approved compacts and thus
implicated federal preemption principles. See, e.g., Port Auth. Trans-Hudson
Corp. v. Feeney, 495 U.S. 299, 301 (1990) (concerning a congressionally approved
compact between New York and New Jersey); State ex. rel Dyer v. Sims, 341 U.S. 22,
24–25 (1951) (concerning a congressionally approved compact among eight states
to control pollution in the Ohio River); Hinderlider v. La Plata River & Cherry Creek
Ditch Co., 304 U.S. 92, 95 (1938) (concerning a congressionally approved river
compact between Colorado and New Mexico); Frontier Ditch, 761 P.2d at 1123
(concerning a congressionally approved river compact between Colorado and
Kansas). Thus, we are not persuaded that the legislature has the authority to
21
delegate to interstate agencies powers that it cannot constitutionally delegate to
intrastate agencies.
¶41 Finally, we are unpersuaded by Amica’s argument that our conclusion here
would limit the effectiveness of interstate compacts that are not approved by
Congress. In this case, we conclude only that, in the context of an interstate
compact that has not been approved by Congress, the Colorado legislature may
not delegate to an interstate administrative agency the power to adopt regulations
that conflict with Colorado statutory law because under longstanding Colorado
law, such a delegation amounts to the improper delegation of legislative power.
We express no opinion on any other form of interstate compact.
III. Conclusion
¶42 For the foregoing reasons, we conclude that in the context of an interstate
compact that has not been approved by Congress, the General Assembly may not
delegate to an interstate administrative agency the authority to adopt regulations
that effectively override Colorado statutory law. Under longstanding Colorado
law, such action would amount to the improper delegation of legislative authority.
¶43 Accordingly, answering the certified question before us narrowly, we
conclude that the General Assembly did not have the authority to delegate to the
Commission here the power to adopt a Standard authorizing the sale of insurance
policies in Colorado containing a two-year suicide exclusion when a Colorado
22
statute prohibits insurers doing business in Colorado from asserting suicide as a
defense against payment on a life insurance policy after the first year of that policy.
23