Direct Marketing Association, The v. Huber

Filing 87

LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 86 Notice of Appeal filed by Roxy Huber to the U.S. Court of Appeals. (Retained counsel; Fee not paid) (Attachments: # 1 Docket Sheet, # 2 Preliminary Record including Notice of Appeal)(bjrsl, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 10-cv-01546-REB-CBS
THE DIRECT MARKETING ASSOCIATION,
Plaintiff,
v.
ROXY HUBER, in her capacity as Executive Director, Colorado Department of
Revenue,
Defendant.

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
Blackburn, J.
This matter is before me on the Plaintiff’s Motion for a Preliminary Injunction
and Incorporated Memorandum of Law [#15]1 filed August 13, 2010. The defendant
filed a response [#50], and the plaintiff filed a reply [#56]. Having considered the
evidence, the parties’ written arguments, the relevant law, and the oral arguments
presented by counsel for the parties at a hearing held on January 13, 2011, I find and
conclude that the motion for preliminary injunction should be granted.
I. JURISDICTION & STANDING
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question).
Although the defendant challenges the plaintiff’s standing to pursue certain of its claims
in this case, the defendant does not challenge the plaintiff’s standing to present its
claims under the Commerce Clause. The plaintiff seeks a preliminary injunction based
1

“[#15]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

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only on its Commerce Clause claims. Therefore, I need not and do not address
standing.
II. BACKGROUND
The plaintiff, The Direct Marketing Association (DMA), asks the court to enjoin
the defendant from enforcing the notice and reporting obligations imposed on many outof-state retailers under a new Colorado law, now codified at §39-21-112(3.5), C.R.S.
(2010) (the Act), and under the concomitant regulations promulgated by the Colorado
Department of Revenue (DOR) to implement the Act, 1 Colo. Code Regs. § 201-1:3921-112.3.5 (2010) (the Regulations). A copy of the Regulations is attached to the
DMA’s motion [#15] as Exhibit 2. In general, the Act and Regulations require retailers
that sell products to customers in Colorado, but do not collect and remit Colorado sales
tax on those transactions, to report certain information about the customers’ purchases
from the retailer to each customer and to the Colorado Department of Revenue. DMA is
an association of businesses and organizations that market products directly to
consumers via catalogs, magazine and newspaper advertisements, broadcast media,
and the internet. The Act and the Regulations will affect many members of the DMA.
The defendant, Roxy Huber, is the Executive Director of the Colorado Department of
Revenue, the state agency charged with enforcing the Act and the Regulations. The
DMA alleges that certain requirements of the Act and the Regulations violate the
constitutional rights of many members of the DMA. In its motion for preliminary
injunction, the DMA relies on its allegation that the Act and the Regulations violate the
rights of many of its members under the Commerce Clause of the United States
Constitution. U.S. Const. art. I, § 8. The DMA asserts other claims in its complaint, but
the DMA does not rely on those claims as bases for its motion for preliminary injunction.
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The Act and the Regulations establish three new obligations for retailers who sell
products to customers in Colorado, but do not collect and remit Colorado sales tax on
those transactions. First, such retailers must notify their Colorado customers that the
retailer does not collect Colorado sales tax and, as a result, the purchaser is obligated
to self-report and pay use tax to the DOR (Transactional Notice). Second, such
retailers must provide to each of their Colorado customers an annual report detailing
that customer’s purchases from the retailer in the previous calendar year, informing the
customer that he or she is obligated to report and pay use tax on such purchases, and
informing the customer that the retailer is required by law to report the customer’s name
and the total amount of the customer’s purchases from that retailer to the DOR (Annual
Purchase Summary). The Annual Purchase Summary must be provided only the
customers who spend more than 500 dollars in the calendar year with a particular
retailer. Third, such retailers must provide the DOR with an annual report concerning
each of the retailer’s Colorado customers stating the name, billing address, shipping
addresses, and the total amount of purchases from the retailer by each of the retailer’s
Colorado customers (Customer Information Report). The Law exempts retailers with
less than 100,000 dollars in gross annual sales in Colorado. In its motion for
preliminary injunction, the DMA asks the court preliminarily to enjoin Huber from
enforcing those provisions of the Act and the Regulations that require retailers to
provide Transactional Notices, Purchase Summaries, and Customer Information
Reports.
III. STANDARD OF REVIEW
FED. R. CIV. P. 65 authorizes federal courts to issue preliminary injunctions.
Because a preliminary injunction is an extraordinary remedy, the plaintiff’s right to such
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relief must be clear and unequivocal. See Federal Lands Legal Consortium ex rel.
Robart Estate v. United States, 195 F.3d 1190, 1194 (10th Cir. 1999). The plaintiff is
entitled to a preliminary injunction only if it proves (1) that there is a substantial
likelihood that it will prevail on the merits; (2) that it will suffer irreparable harm unless
the preliminary injunction is issued; (3) that the threatened injury to the plaintiff
outweighs the harm the preliminary injunction might cause defendant; and (4) that the
preliminary injunction is in the public interest. Prairie Band of Potawatomi Indians v.
Pierce, 253 F.3d 1234, 1246 (10th Cir. 2001).
IV. ANALYSIS
A. LIKELIHOOD OF SUCCESS
To secure a preliminary injunction, the plaintiff first must establish a substantial
likelihood that it is likely to prevail on the merits of the substantive claims that are the
basis for its motion. Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234,
1246 (10th Cir. 2001). “The determination of a motion for a preliminary injunction and a
decision on the merits are different.” Valdez v. Applegate, 616 F.2d 570, 572 (10th Cir.
1980). “It is not necessary that plaintiffs show positively that they will prevail on the
merits before a preliminary injunction may be granted.” Atchison, Topeka and Santa
Fe Railway. Co. v. Lennen, 640 F.2d 255, 261 (10th Cir. 1981). Rather, plaintiff need
only establish “a reasonable probability of success, . . . not an ‘overwhelming’ likelihood
of success[.]” Id.
The plaintiff asserts two claims under the Commerce Clause of the United States
Constitution and argues that it has demonstrated a substantial likelihood of success on
both of these claims. The Commerce Clause expressly authorizes Congress to
“regulate Commerce with foreign Nations, and among the several States.” U.S. Const.
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art. I, § 8. The Commerce Clause long has been read as having a negative or dormant
sweep as well. The clause, “‘by its own force’ prohibits certain state actions that
interfere with interstate commerce.” Quill Corp. v. North Dakota By and Through
Heitkamp, 504 U.S. 298, 309 (1992) (quoting South Carolina State Highway Dept. v.
Barnwell Brothers, Inc., 303 U.S. 177, 185 (1938)). The negative Commerce Clause
“denies the States the power unjustifiably to discriminate against or burden the
interstate flow of articles of commerce.” Oregon Waste Systems, Inc. v. Department
of Environmental Quality of State of Or., 511 U.S. 93, 98 (1994). A state law
violates the discrimination aspect of the dormant Commerce Clause if it discriminates
against interstate commerce either facially or in practical effect. Hughes v. Oklahoma,
441 U.S. 322, 336 (1979). If a law discriminates against interstate commerce, then the
state has the burden to demonstrate a legitimate local purpose served by the law which
cannot be achieved through reasonable nondiscriminatory alternatives. Id. at 336 - 337.
If the law in question regulates evenhandedly among in-state and out-of-state interests,
“and its effects on interstate commerce are only incidental, [the law] will be upheld
unless the burden imposed on [interstate] commerce is clearly excessive in relation to
the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
i. Discrimination Claim
In its first claim for relief, the DMA alleges that the Act and the Regulations
discriminate against out-of-state retailers who do not collect Colorado sales tax,
because the Act and the Regulations impose on those retailers notice and reporting
obligations that are not imposed on Colorado retailers. Under Colorado law, all retailers
doing business in Colorado and selling to Colorado purchasers must obtain a sales tax
license and must collect and remit the sales tax applicable to each sale. §§39-26-103,
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104, C.R.S. Under the Act and the Regulations, retailers who collect and remit
Colorado sales tax are not obligated to provide the Transactional Notice, the Annual
Purchase Summary, and the Customer Information Report otherwise required by the
Act and the Regulations. Under the law established in Quill and related cases,
Colorado may not impose any duty to collect sales and use taxes on out-of-state
retailers whose only connection to Colorado is by common carrier or the U.S. mail.
Quill, 504 U.S. at 315. Thus, out-of-state retailers that do not have a physical presence
in Colorado generally are not obligated to collect and remit sales tax on their sales in
Colorado. The plaintiff contends that the Act and the Regulations discriminate against
this group of out-of-state retailers by imposing on those retailers burdens that need not
be borne by in-state retailers.
In the context of the dormant Commerce Clause, a law discriminates against
interstate commerce if it imposes “differential treatment of in-state and out-of-state
economic interests that benefits the former and burdens the latter.” Oregon Waste
Systems, Inc. v. Department of Environmental Quality of State of Or., 511 U.S. 93,
99 (1994). In Oregon Waste Systems, for example, the Supreme Court concluded
that Oregon’s two dollar and twenty-five cent per ton surcharge on out-of-state solid
waste brought into Oregon for disposal was discriminatory in violation of the dormant
Commerce Clause, when compared to the eighty-five cents per ton surcharge imposed
on in-state solid waste. Id. at 100. The Oregon Waste Systems Court noted that the
degree of a differential burden or charge on interstate commerce “is of no relevance to
the determination whether a State has discriminated against interstate commerce.” Id.
at n. 4 (internal quotation and citation omitted).
The text of the Act and the Regulations does not explicitly target out-of-state
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retailers as opposed to in-state retailers. The defendant argues that the plain language
of the Act and the Regulations applies to all retailers, in-state and out-of-state, that sell
to Colorado purchasers but do not collect Colorado sales tax. Accordingly, the
defendant contends that the Act and the Regulations are not discriminatory. I note,
however, that under Colorado law, in-state retailers long have been required to collect
and remit Colorado sales tax and are subject to civil and criminal penalties if they fail to
do so. §§39-26-103 (4); 39-21-118(2), C.R.S. Unless they defy these legal
requirements, these retailers are not subject to the notice and reporting requirements of
the Act and the Regulations. Evidence submitted by the defendant indicates that the
Tax Compliance Section of the Colorado Department of Revenue discovers each year
only a very small number of Colorado retailers who are not complying with their legal
obligation to collect and remit sales tax. Response [#50], Exhibit 16 (Reiser Affidavit).
Under Colorado law, any retailer who is not subject to the statutory obligation to
collect and remit Colorado sales tax necessarily is an out-of-state retailer. The Act and
the Regulations impose a notice and reporting burden on these out-of-state retailers
and that burden is not imposed on in-state retailers, except for the very few in-state
retailers who defy their statutory sales tax obligations. Given these circumstances, I
conclude that the plaintiff has shown a substantial likelihood that it will succeed in
showing that the Act and the Regulations are discriminatory because, in practical effect,
they impose a burden on interstate commerce that is not imposed on in-state
commerce.
If the DMA succeeds in showing that the Act and the Regulations are
discriminatory, then “the burden falls on the State to justify [them] both in terms of the
local benefits flowing from the statute and the unavailability of nondiscriminatory
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alternatives adequate to preserve the local interests at stake.” Hughes v. Oklahoma,
441 U.S. 322, 336 (1979). However, it is exceedingly difficult to meet this standard. “If
a restriction on commerce is discriminatory, it is virtually per se invalid.” Oregon Waste
Systems, 511 U.S. at 99. In this case, the defendant asserts Colorado’s need to collect
tax revenue as the local benefit that justifies the Act and the Regulations. Without
question, this is a legitimate local interest. However, the DMA has noted the availability
of non-discriminatory alternatives. For example, like other states, Colorado might
collect use tax from Colorado taxpayers via the Colorado income tax form. Given this
and other alternatives, I conclude that it is unlikely that the defendant will be able to
show a lack of nondiscriminatory alternatives to the Act and the Regulations.
Regardless of the state’s salutary local purposes, its enactment of a statutory
scheme and concomitant regulations that produce, in effect, a geographic distinction
between in-state and out-of-state retailers discriminates patently against interstate
commerce, id. at 100, which triggers the virtually per se rule of facial invalidity that has
not been surmounted by a demonstration by the state of a legitimate local purpose that
can not be served adequately by reasonable nondiscriminatory alternatives. Id. (internal
quotation and citations omitted). Thus, on the current record, I conclude that the DMA
has demonstrated a substantial likelihood of success on its discrimination claim under
the dormant Commerce Clause.
ii. Undue Burden Claim
In its second claim for relief, the DMA alleges that the Act and the Regulations
impose improper and burdensome regulation of interstate commerce. The DMA relies
heavily on the law established in Quill Corp. v. North Dakota By and Through
Heitkamp, 504 U.S. 298, 309 (1992) to support its undue burden claim. In Quill, the
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Court concluded that undue burdens on interstate commerce sometimes may be
avoided by the application of a bright line rule. The Quill court concluded that the
dormant Commerce Clause and the Court’s earlier holding in National Bellas Hess,
Inc. v. Department of Revenue of State of Ill., 386 U.S. 753, 758 (1967) create a
bright line rule with regard to the collection of sales and use tax. This law creates a
“safe harbor for vendors whose only connection with customers in the [taxing] State is
by common carrier or the United States mail. Under Bellas Hess, such vendors are
free from state-imposed duties to collect sales and use taxes.” Quill, 504 U.S. at 315
(internal quotation omitted).
The Quill Court examined and applied the quadripartite test enunciated in
Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977). Under Complete
Auto, a state tax will be sustained against a Commerce Clause challenge as long as the
tax (1) is applied to an activity with a substantial nexus with the taxing state; (2) is fairly
apportioned; (3) does not discriminate against interstate commerce; and (4) is fairly
related to the services provided by the state. Complete Auto, 430 U.S. at 279.
Complete Auto rejected the previously applied distinction between direct and indirect
taxes on interstate commerce “because that formalism allowed the validity of statutes to
hinge on legal terminology, draftsmanship and phraseology.” Quill, 430 U.S. at 310
(internal quotation, citation, and brackets omitted). The Complete Auto test
emphasizes the importance of looking past the formal language of a tax statue to its
practical effect. Quill, 504 U.S. at 310. The first and fourth prongs of the Complete
Auto test “limit the reach of state taxing authority so as to ensure that state taxation
does not unduly burden interstate commerce.” Quill, 504 U.S. at 313. The safe harbor

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established in Quill is a meant to delineate and define the limits of the substantial nexus
requirement of the Complete Auto test to ensure that a state tax law does not impose
an undue burden on interstate commerce. Id.
The Act and the Regulations do not require out-of-state retailers to collect sales
and use taxes. However, they do require out-of-state retailers to gather, maintain, and
report information, and to provide notices to their Colorado customers and to the
defendant about their Colorado customers. The sole purpose of these requirements is
to enhance the collection of use taxes by the State of Colorado. I conclude that these
requirements likely impose on out-of-state retailers use tax-related responsibilities that
trigger the safe-harbor provisions of Quill. Although the burden of the notice and
reporting obligations imposed by the Act and the Regulations may be somewhat
different than the burden of collecting and remitting sales and use taxes, the sole
purpose of the burdens imposed by the Act and the Regulations is the ultimate
collection of use taxes when sales taxes cannot be colleted. Looking to the practical
effect of the Act and the Regulations, I conclude that the burdens imposed by the Act
and the Regulations are inextricably related in kind and purpose to the burdens
condemned in Quill. The Act and the Regulations impose these burdens on out-ofstate retailers who have no connection with Colorado customers other than by common
carrier or the United States mail. Those retailers likely are protected from such burdens
on interstate commerce by the safe-harbor established in Quill.
iii. Conclusion
I find and conclude that the DMA has demonstrated a substantial likelihood of
success on both its discrimination claim and its undue burden claim under the dormant
Commerce Clause. Thus, consideration of this first factor weighs in favor of the
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issuance of a preliminary injunction.
B. IRREPARABLE INJURY
The parties dispute whether or not a deprivation of the Commerce Clause rights
at issue here, without more, constitutes irreparable injury. In a recent case, the United
States Court of Appeals for the Tenth Circuit indicated that violation of Commerce
Clause rights constitutes irreparable injury. American Civil Liberties Union v.
Johnson, 194 F.3d 1149, 1163 (10th Cir. 2010) (citing American Libraries Ass’n v.
Pataki, 969 F.Supp. 160, 168 - 183 (S.D.N.Y. 1997)). Although the Tenth Circuit’s
statement in Johnson is dicta, I conclude that violation of the constitutional Commerce
Clause rights of DMA’s members constitutes irreparable injury.
In addition, it is undisputed that many DMA members will face compliance costs
if they are required to comply with the Act and the Regulations in the future. The
amount of those costs is disputed. Huber’s expert concludes that the smallest retailers
affected by the Act and the Regulations will incur first-year compliance costs ranging
from about 3,100 dollars to 7,000 dollars. Response [#50], Exhibit 6 (Report of Dieter
G. Gable), p. 2. If, in the end, the Act and the Regulations are found to be
unconstitutional because they violate the Commerce Clause, the affected retailers
would be unable to recover these compliance costs from the State of Colorado. Under
the Eleventh Amendment, Colorado is immune from suit for such damages. Under
these circumstances, the compliance costs faced by retailers subject to the Act and the
Regulations constitute irreparable injury. Chamber of Commerce of U.S. v.
Edmondson, 594 F.3d 742, 770 - 771 (10th Cir. 2010) (compliance costs of more than a
thousand dollars per year per business constitute irreparable injury if such costs cannot
later be recovered because of sovereign immunity). Thus, consideration of this second
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factor weighs also in favor of the issuance of a preliminary injunction.
C. BALANCE OF HARMS
When considering the balance of harms, a court must balance “the competing
claims of injury and must consider the effect on each party of the granting or withholding
of the requested relief.” Amoco Prod. Co. v. Gambill, 480 U.S. 531, 542 (1987). The
DMA argues that the need to protect the constitutional rights of certain of its members
outweighs the interest of the State of Colorado in enforcing a law that likely is
constitutionally infirm. In addition, absent an injunction, some DMA members will incur
compliance costs that cannot later be recovered. Huber argues that these
considerations do not outweigh Colorado’s interest in enforcing a state law that will
provide revenue to its strapped coffers.
If, ultimately, the Act and the Regulations are upheld against the DMA’s
challenge, the reports and notices required by the Act and the Regulations can be
prepared and delivered. This might delay the state’s collection of some use taxes, but it
will not prevent the ultimate collection of those taxes. On the other hand, preserving the
status quo with a preliminary injunction will prevent the irreparable injuries discussed
above while the issues raised by the DMA are resolved completely. Given these
circumstances and considerations, I find and conclude that the balance of harms favors
the DMA, and thus, the issuance of a preliminary injunction.
D. PUBLIC INTEREST
Generally, the public interest is served by enjoining the enforcement of a law that
likely violates the Constitution. Chamber of Commerce of U.S. v. Edmondson, 594
F.3d 742, 771 (10th Cir. 2010). Huber argues that it is not in the public interest to enjoin
the enforcement of a law which has the primary goal of raising revenue to ensure the
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fiscal well-being of the state. As Huber notes, a court of equity must “pay particular
regard for the public consequences in employing the extraordinary remedy of
injunction.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, ___, 129
S.Ct. 365, 376 -377 (U.S. 2008). I find and conclude that the public’s interest in
revenue raising by the state will not be impaired substantially by the issuance of a
preliminary injunction. At most, the state may suffer some delay in implementing its
new technique for enforcing its use tax laws, if the Act and the Regulations are upheld
against the DMA’s challenge. On the other hand, the enforcement of a law that likely is
unconstitutional, even if the goal of the law is important and legitimate, does not serve
the public interest. Thus, the public interest factor weighs in favor of the issuance of a
preliminary injunction.
V. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That the Plaintiff’s Motion for a Preliminary Injunction and Incorporated
Memorandum of Law [#15] filed August 13, 2010, is GRANTED on the following terms;
2. That effective forthwith defendant Roxy Huber, in her capacity as Executive
Director, Colorado Department of Revenue, together with her agents, servants,
employees, attorneys-in-fact, or anyone acting on their behalf, are ENJOINED AND
RESTRAINED from enforcing the provisions of §39-21-112(3.5), C.R.S. (2010) (the Act)
and the regulations promulgated thereunder, 1 Colo. Code Regs. § 201-1:39-21-112.3.5
(2010) (the Regulations), to the extent that the Act and the Regulations require
A. that a retailer must notify their Colorado customers that the
retailer does not collect Colorado sales tax and, as a result, the purchaser
is obligated to self-report and pay use tax to the Colorado Department of
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Revenue (Transactional Notice); and
B. that a retailer must provide to each of its Colorado customers an
annual report detailing that customer’s purchases from the retailer in the
previous calendar year, informing the customer that he or she is obligated
to report and pay use tax on such purchases, and informing the customer
that the retailer is required by law to report the customer’s name and the
total amount of the customer’s purchases from that retailer to the Colorado
Department of Revenue (Annual Purchase Summary); and
C. that a retailer must provide the Colorado Department of
Revenue with an annual report concerning each of the retailer’s Colorado
customers stating the name, billing address, shipping addresses, and the
total amount of purchases from the retailer by each of the retailer’s
Colorado customers (Customer Information Report);
3. That this preliminary injunction SHALL LIMIT the enforcement of the Act and
the Regulations against retailers who sell to customers in Colorado, but whose only
connection to the State of Colorado is by common carrier or the United States Mail;
4. That this preliminary injunction SHALL NOT LIMIT the enforcement of the Act
and the Regulations against retailers who do not fall into the class of retailers defined in
paragraph three (3), above;
5. That under FED. R. CIV. P. 65(c), the plaintiff, the Direct Marketing
Association, SHALL POST with the Clerk of the Court a bond in the amount of five
thousand (5,000) dollars on or before Friday, January 28, 2011, at 12:00 p.m. (mountain
standard time); and

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6. That this preliminary injunction SHALL REMAIN IN EFFECT until modified or
rescinded by further order of the court.
Dated January 26, 2011, at Denver, Colorado.
BY THE COURT:

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-01546-REB-CBS
The Direct Marketing Association,
Plaintiff,
v.
Roxy Huber, in her capacity as Executive Director, Colorado Department of Revenue,
Defendant.
NOTICE OF APPEAL
Notice is hereby given that Roxy Huber, in her capacity as Executive Director,
Colorado Department of Revenue, Defendant in the above named case, hereby appeals
to the United States Court of Appeals for the Tenth Circuit from the Order Granting
Motion for Preliminary Injunction entered in this action on the 26th day of January, 2011.
Respectfully submitted this 25th day of February, 2011.
JOHN W. SUTHERS
Attorney General
s/ Jack M. Wesoky
JACK M. WESOKY, 6001*
Senior Assistant Attorney General
MELANIE J. SNYDER, 35835*
Assistant Attorney General
Business & Licensing Section
1525 Sherman Street, 7th Floor
Denver, Colorado 80203
Telephone: [phone] (Wesoky)
Telephone: [phone] (Snyder)
FAX: [phone]
E-Mail: [e-mail]
E-Mail: [e-mail]

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STEPHANIE LINDQUIST SCOVILLE*
Senior Assistant Attorney General
Civil Litigation and Employment Law Section
Attorneys for State Defendants
1525 Sherman Street, 7th Floor
Denver, Colorado 80203
Telephone: [phone]
FAX: [phone]
E-Mail: [e-mail]

*Counsel of Record

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CERTIFICATE OF SERVICE
I hereby certify that on February 25, 2011I electronically filed the foregoing
NOTICE OF APPEAL with the Clerk of the Court using the CM/ECF system which will
send notification of such filing to the following e-addresses:
[e-mail]
[e-mail]
Attorneys for Plaintiff

s/ Jack M. Wesoky

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