Cases of Note
Courts presume that the General Assembly is aware of court decisions that construe state statutes or the constitution. The OLLS will update this web page quarterly to notify the General Assembly of such court decisions. Cases that may be of particular interest because they meet certain criteria have been summarized and are listed below in chronological order. Summaries for cases older than a year are available in an archive.
Elder v. Williams, Colorado Supreme Court No. 19SC1009 (December 21, 2020)
Holding: Claims for compensatory relief and equitable remedies under the Colorado Anti-Discrimination Act (CADA) do not and could not lie in tort for purposes of the Colorado Governmental Immunity Act (CGIA) and therefore are not barred by the CGIA. In addition, the provision in section 24-34-405 (8)(g), C.R.S., exempting certain CADA claims for compensatory damages against "the state" from the CGIA applies whether the claims are made against the state itself, a state agency, or a political subdivision of the state.
Case Summary: A former employee of the El Paso County Sheriff's Office (EPSO) filed CADA claims against EPSO for age discrimination and retaliation. The plaintiff sought front pay and compensatory damages for both claims. EPSO filed a motion to dismiss the claims on the grounds that compensatory damages and front pay are legal remedies that lie or could lie in tort and are barred by the CGIA. The district court denied the motion to dismiss, concluding that the claims are not barred by the CGIA.
On appeal, a division of the Colorado Court of Appeals acknowledged that another division of the court of appeals had, in Houchin v. Denver Health, 2019 COA 50M, held that the CGIA bars CADA claims for compensatory damages asserted against political subdivisions of the state because: (1) compensatory damages are not an equitable remedy and (2) Section 24-34-405 (8)(g), C.R.S., exempts a CADA claim for compensatory damages from the CGIA only when the claim is made against "the state", meaning the state of Colorado or an agency of the state of Colorado, and not when the claim is made against a political subdivision of the state. However, the court of appeals in this case disagreed with the Houchin court, holding that the CGIA does not bar the plaintiff from seeking compensatory damages for retaliation because: (1) the compensatory damages allowed under the CADA do not relieve tort-like personal injuries, are merely incidental to the CADA's primary purpose of ending discrimination, and therefore do not lie in tort and are not subject to the CGIA and (2) the word "state", as used in section 24-34-405 (8)(g), C.R.S., refers to all state entities able to seek immunity under the CGIA, including political subdivisions of the state. The decision created a conflict in the court of appeals as to whether a CADA claim for compensatory damages that is made against a political subdivision of the state is barred by the CGIA.
The Colorado Supreme Court affirmed the holding of the division of the court of appeals in this case, resolving the conflict. The court held that claims for compensatory relief under CADA do not and could not lie in tort and are not barred by the CGIA because such claims derive from statutory duties and are designed to implement the policy of eliminating intentional discrimination and not to compensate for individual personal injuries. The court also affirmed that the phrase "the state" as used in section 24-34-405 (8)(g), C.R.S., includes both the state of Colorado and any state agency or political subdivision. The court also affirmed that claims for front pay under CADA are equitable in nature and are not barred by the CGIA. (For more information, contact Megan Waples.)
People v. Lee, Colorado Supreme Court No. 19SC749 (November 23, 2020)
Holding: A defendant may not be charged with second degree assault based on conduct involving strangulation under both the deadly weapon subsection of the second degree assault statute, section 18-3-203 (1)(b), and the strangulation subsection of that statute, section 18-3-203 (1)(i). Rather, the defendant must be charged under the strangulation subsection.
Case Summary: Following an alleged assault, the defendant was charged with two counts of second degree assault under the strangulation subsection, section 18-3-203 (1)(i). Eight months later, the People added two additional counts of second degree assault under the deadly weapon subsection, section 18-3-203 (1)(b), asserting that the defendant had used his hands as a deadly weapon. Second degree assault by strangulation is also a class 4 felony and an extraordinary risk crime, with a potential prison sentence of 2 to 8 years. Second degree assault with a deadly weapon is a class 4 felony, but because it is a per se crime of violence, it carries a longer potential prison sentence of 5 to 16 years.
The trial court granted the defendant's motion to dismiss the added counts under the deadly weapon subsection. The court of appeals affirmed the dismissal because charging the same conduct under both subsections, which carry different maximum penalties, would violate a defendant’s right to equal protection.
The Colorado Supreme Court affirmed, holding that a defendant can only be charged for conduct involving strangulation under the strangulation subsection. The court first examined the state's equal protection jurisprudence, citing prior decisions holding that the due process clause of the Colorado Constitution, Colo. Const. art. II, § 25, guarantees equal protection under the law. A defendant's guarantee of equal protection under the Colorado Constitution is violated when two criminal statutes proscribe identical conduct, but one statute punishes that conduct more harshly. The court recognized that Colorado's approach when two criminal statutes proscribe identical conduct with different penalties is different than federal equal protection standards, and the court declined to adopt the federal approach.
Turning to the statute at issue, the court found that the second degree assault-deadly weapon and second degree assault-strangulation subsections proscribe identical conduct because strangulation will always involve the use of a deadly weapon, the perpetrator's hands. Because these provisions proscribe identical conduct but the deadly weapon subsection punishes that conduct more harshly than the strangulation subsection, the court held that, under Colorado equal protection principles, a defendant may not be charged with second degree assault based on conduct involving strangulation under both subsections. Rather, the defendant must be charged under the strangulation provision.
The court based its ruling on the plain language of the statute, but also noted that the legislative history supported the court's holding because it showed the bill sponsor's intent that all strangulations would be prosecuted under the specific strangulation provision. (For more information, contact Conrad Imel.)
Linnebur v. People, Colorado Supreme Court No. 18SC884 (November 9, 2020)
Holding: Prior felony convictions are an element of felony DUI that must be proved to the jury beyond a reasonable doubt, rather than a sentence enhancer that a judge may find by a preponderance of the evidence.
Case Summary: The defendant was charged with driving under the influence of alcohol (DUI) and also charged with felony DUI based on prior convictions. A person commits felony DUI if the offense occurred after three or more prior convictions for DUI, DUI per se, or DWAI. The defendant filed a motion arguing that the fact of his prior convictions was a substantive element of felony DUI, so the prior convictions had to be proved to a jury beyond a reasonable doubt. The trial court denied the motion, concluding instead that the prior convictions were merely sentence enhancers, so they could be proved to the court by a preponderance of the evidence. The appeals court affirmed the decision.
The question of whether the prior convictions are an element of the offense or merely a sentence enhancer has caused a split among the divisions of the court of appeals. So the Colorado Supreme Court granted certiorari to resolve the question. The Colorado Supreme Court ruled that the prior offenses are an element of felony DUI. The statutory provisions that define and provide penalties for felony DUI make prior convictions an element of the crime, which must be proved to the jury beyond a reasonable doubt. (For more information, contact Jery Payne.)
TABOR Found. v. Colo. Dept. of Health Care Policy and Fin., Colorado Court of Appeals No. 19CA0621 (November 5, 2020)
Holding: Plaintiffs, the TABOR Foundation, the Colorado Union of Taxpayers Foundation, and two individual members of the foundations lacked standing to challenge the constitutionality of the repealed hospital provider fee program and the existing healthcare affordability and sustainability fee program.
Case Summary: Plaintiffs, the TABOR Foundation, the Colorado Union of Taxpayers Foundation, and two individual members of the foundations, sued the Department of Healthcare Policy and Financing and other state entities in Denver District Court in 2015, alleging that the hospital provider fee program (HPF program) violated the Taxpayer's Bill of Rights (TABOR). Plaintiffs claimed that the mandatory hospital provider "fee" (HPF) that the state charged to hospitals and collected as revenue subject to the state fiscal year spending limit was actually a tax imposed without the voter approval in advance required by TABOR.
In 2017, the General Assembly enacted Senate Bill 17-267 "Concerning the Sustainability of Rural Colorado" (SB 267) which, among other things, repealed the HPF program and created a new healthcare affordability and sustainability fee program (HASF program). Under the HASF program, the Colorado healthcare affordability and sustainability enterprise (CHASE) imposes and collects a healthcare affordability and sustainability fee (HASF) that is substantially similar to the HPF but generates TABOR-exempt revenue that does not count against the state fiscal year spending limit. In response to the enactment of SB 267, plaintiffs amended their complaint to include claims that: (1) the CHASE cannot qualify as an enterprise exempt from TABOR because the HASF is actually a tax imposed without voter approval in advance; (2) that HASF revenue thus is not TABOR-exempt, and the state collected revenue in excess of the state fiscal year spending limit without making required TABOR refunds; and (3) that SB 267 contained multiple subjects in violation of the constitutional requirement that all bills contain a single subject.
In March 2019, after considering summary judgment motions filed by both sides, the Denver District Court rejected Defendants' argument that Plaintiffs lacked standing to bring the lawsuit but granted Defendants' motion for summary judgment on the merits and dismissed the case. Plaintiffs appealed.
In November 2020, the Colorado Court of Appeals held that Plaintiffs lacked standing to challenge the constitutionality of the HPF program and the HASF program. The court of appeals found that: (1) the individual Plaintiffs lacked taxpayer standing both generally and under the provision of TABOR that authorizes citizen enforcement lawsuits because hospitals, not taxpayers, paid the HPF and pay the HASF, and there was therefore no clear nexus between their taxpayer status and the fees; (2) the individual Plaintiffs lacked individual standing because the HPF and HASF programs affected healthcare consumers only indirectly, and they therefore suffered no direct and individualized injury; and (3) The foundation Plaintiffs lacked associational standing because the members did not otherwise have standing to sue in their own right. Accordingly, the court of appeals reversed the judgment of the district court that Plaintiffs had standing, vacated the portions of the district court’s opinion that addressed the merits of the lawsuit, and affirmed the grant of summary judgment for Defendants.
Plaintiffs have filed a petition for a writ of certiorari to the Colorado Supreme Court, Defendants have opposed the petition, and the supreme court is considering whether or not to accept the petition. (For more information, contact Jason Gelender.)
People v. Black, Colorado Court of Appeals No. 17CA0317 (September 17, 2020)
Holding: When faced with a jury question that indicates the possibility of an impasse, a trial court cannot tell the jury to continue deliberating without conducting a threshold inquiry to determine the likelihood of progress towards a unanimous verdict if deliberations continue.
Case Summary: The defendant was of convicted third degree assault, driving under the influence, and two counts of resisting arrest. During deliberations, the jury asked the trial court, "What happens if we can’t come to a unanimous decision on only one charge?" Without further inquiry into whether the jury had reached an impasse and how intractable that impasse was, the trial court instructed the jury to continue deliberating.
The court of appeals recognized that a trial court violates a defendant's constitutional rights to due process, an impartial jury, and a unanimous verdict when the trial court gives a coercive instruction to the jury. When a jury raises the possibility of an impasse during deliberations, a court's instruction to continue deliberating risks coercing jurors to abandon their conscientious convictions about the case for the sake of reaching a unanimous verdict.
Whether an instruction is coercive depends on the content of the instruction and the context in which it is given. A trial court can mitigate the coercive risk of a deliberation instruction by giving a modified instruction instead of an unqualified instruction to continue deliberating. In order to determine whether a modified instruction is necessary, the trial court must determine the jury's likelihood of progress toward a unanimous verdict. If progress is likely, there is no impasse and the trial court can give the jury an unqualified instruction to continue deliberating. If the trial court determines that progress is unlikely, the court may, in its discretion, give a modified instruction to continue deliberations.
In this case, the court of appeals found that the trial court did not make the threshold inquiry into the likelihood of a unanimous verdict, and that the failure to do so was reversible error because instructing the jury to continue deliberating without any understanding of the intractability of the impasse risks coercing the jurors to reach a compromise verdict.
The court of appeals acknowledged that another division of the court of appeals, in People v. Munsey, 232 P.3d 113 (Colo. App. 2009), found no coercion and no error under similar circumstances. The court of the appeals in this case disagreed with the Munsey division because it found the Munsey division's holding contrary to state Supreme Court decisions and because the Munsey division seemed to have characterized the trial court's duty to determine to what extent the jury is deadlocked as a rebuttable presumption. Thus, the court declined to follow the Munsey division's decision, and instead held that when a jury question suggests an impasse, the trial court must conduct a threshold inquiry to determine the likelihood of progress towards a unanimous verdict if deliberations continue prior to instructing the jury. (For more information, contact Conrad Imel.)
Thompson v. People, Colorado Supreme Court No. 18SC543 (September 14, 2020)
Holding: The determination of whether a promissory note is a security is based on an analysis that presumes that the promissory note is a security unless it is within one of seven categories of notes that are excluded from being a security or bears a strong family resemblance to one of the excluded categories, following Reves v. Ernst & Young, 494 U.S. 56 (1990) and overruling People v. Milne, 690 P.2d 829 (Colo. 1984) (which based the analysis on whether the note is an investment contract).
Case Summary: The defendant induced third parties to loan him $2.4 million, telling them that the loan would be used as a bridge loan for his real estate development company and that it would be a very low-risk, short-term investment with a $240,000 profit and 8% annual interest. The defendant executed a promissory note to the third parties that was secured by the defendant's real estate. The defendant did not disclose that the real estate, which had been valued at far less than what the defendant had represented, was already heavily leveraged and that his real estate company had already declared bankruptcy. After a bank foreclosed on the real estate and the defendant defaulted on the promissory note, the defendant was charged with and convicted of securities fraud; the court of appeals affirmed.
The definition of a security includes "any note" and an "investment contract". Under People v. Milne, 690 P.2d 829 (Colo. 1984), the determination of whether a promissory note is a security was based on an analysis of whether the note is an investment contract. In contrast, the United States Supreme Court held in Reves v. Ernst & Young, 494 U.S. 56 (1990), that the determination of whether a promissory note is a security is based on an analysis that presumes that the promissory note is a security unless it is within one of seven categories of notes that are excluded from being a security or bears a strong family resemblance to one of the excluded categories. The Colorado Supreme Court noted that the securities act specifies that its provisions are to be coordinated with the federal act, that the two acts' definitions of a security are analogous, and that the trend among other states is to adopt the family resemblance analysis established by Reves.
After adopting the family resemblance test and thereby overruling Milne, the court held that the promissory note neither was within one of the seven categories of excluded promissory notes nor bore a strong family resemblance to any of the categories. It was therefore a security, and the court affirmed the defendant's conviction. (For more information, contact Thomas Morris.)
People v. Johnson, Colorado Court of Appeals No. 17CA0822 (August 20, 2020)
Holding: The common law doctrine of abatement ab initio extinguishes a restitution order entered as part of a criminal sentence when the defendant dies while his criminal conviction is pending on direct appeal.
Case Summary: The defendant was convicted of multiple counts of securities fraud and theft and adjudicated a habitual criminal. The district court sentenced him to a total of forty-eight years in prison and ordered him to pay costs, fees, and restitution. The defendant appealed, but the defendant died before the appeal could be resolved.
Under the common law doctrine of abatement ab initio, when a defendant dies while his or her criminal conviction is pending on direct appeal, the defendant's death "abates not only the appeal but also all proceedings had in the prosecution from its inception [. . .] leaving the defendant as if he or she had never been indicted or convicted." The court of appeals acknowledged that another division of the court of appeals, in People v. Daly, 313 P.3d 571 (Colo. App. 2011), had held that when a criminal defendant dies during the pendency of the appeal, a restitution order should not be abated because it is a civil judgment that survives the defendant's death. The Daly division relied on section 18-1.3-603 (4)(a)(I), C.R.S., which states that a restitution order is "a final civil judgment in favor of the state and any victim" that, "[n]otwithstanding any other civil or criminal statute or rule, [. . .] remains in force until the restitution is paid in full." The Daly division found that legislature intended the statute to create a civil judgment that survives a defendant’s death and to which the doctrine of abatement ab initio does not apply.
The court of appeals in this case disagreed with the Daly division because subsequent legal authority from the U.S. Supreme Court, the Colorado Supreme Court, and other jurisdictions convinced the court that when a defendant dies during the pendency of his direct appeal, the doctrine of abatement ab initio operates to extinguish not only the defendant's conviction but everything associated with the case, including any restitution order. The U.S. Supreme Court, in Nelson v. Colorado, 137 S. Ct. 1249 (2017), held that, when a criminal conviction is invalidated by a reviewing court and no retrial will occur, the State is obliged to refund restitution exacted from the defendant as a consequence of the conviction. In People v. Cowen, 2018 CO 96, the Colorado Supreme Court "extended the teachings" of the U.S. Supreme Court's decision in Nelson, and held that procedural due process prohibits ordering restitution "for losses resulting from conduct of which a defendant has been acquitted and as to which he retains the presumption of innocence." The court of appeals also found that the majority of federal circuit courts have held that the doctrine of abatement ab initio applies to restitution orders. Based on this authority, the court of appeals concluded that restitution orders are subject to abatement ab initio because when the doctrine is applied, the defendant's conviction is erased and the presumption of innocence restored.
Although the General Assembly may modify or abrogate common law, such as the doctrine of abatement ab initio, the court of appeals held that section 18-1.3-603, C.R.S., relied on by the Daly division, does not clearly modify the doctrine of abatement ab initio to exclude restitution orders because (1) the statute expressly ties the restitution order to a conviction, but the defendant's death during the pendency of an appeal abates the conviction; (2) while the statute applies "[n]otwithstanding any other civil or criminal statute or rule", the common law doctrine of abatement ab initio is neither a statute nor a rule; and (3) even though the statute addresses what happens when a defendant dies before paying restitution in full, generally, it does not address the specific situation in which a defendant dies during the pendency of a direct appeal.
The court of appeals recognized that its decision may lead to unjust results for crime victims, but that the General Assembly or Colorado Supreme Court could avoid those outcomes by abolishing or abrogating the doctrine of abatement ab initio. (For more information, contact Conrad Imel.)
Ritchie v. Polis, Colorado Supreme Court No. 20SC453 (July 1, 2020)
Holding: Article V, section 1 (6) of the Colorado constitution requires initiative petition signatures to be executed in person in the presence of a petition circulator, and the Governor cannot issue an executive order suspending that requirement.
Case Summary: Article V, section 1 (6) of the Colorado constitution states in relevant part that a petition to place an initiative on the ballot "shall be signed by registered electors in their own proper persons only" and that each petition must include "an affidavit of some registered elector that each signature thereon is the signature of the person whose name it purports to be and that, to the best of the knowledge and belief of the affiant, each of the persons signing said petition was, at the time of signing, a registered elector." In accordance with this constitutional provision, initiative petitions have always been signed in person by registered electors while in the physical presence of a petition circulator.
The Colorado Disaster Emergency Act, §§ 24-33.5-701 to 24-33.5-717, C.R.S., (CDEA), authorizes the Governor to declare a disaster emergency during which the Governor may "suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders, rules, or regulations of any state agency" if strict compliance with the statutory or regulatory provisions would impair response to the disaster emergency. §24-33.5-704 (7)(a), C.R.S. On March 10, 2020, the Governor declared a disaster emergency as a result of the COVID-19 global pandemic. On May 15, 2020, the Governor issued Executive Order D 2020 065 (“EO 65”), which: (1) suspended the operation of certain statutes governing the ballot initiative process that require initiative petition signature collection to take place in person; and (2) authorized the Secretary of State to create temporary rules to permit signature gathering by mail and email. Petitioners filed a lawsuit in Denver District Court against the Governor and the Secretary of State seeking a preliminary injunction against enforcement of EO 65 and a declaratory judgment finding EO 65 unconstitutional under the Colorado constitution and unauthorized under the CDEA. The district court denied the injunction and declaratory judgment. Petitioners appealed to the Colorado Supreme Court.
The supreme court reversed the district court, unanimously holding that article V, section 1 (6) of the Colorado constitution requires initiative petition signatures to be executed in person in the presence of a petition circulator and that the Governor cannot issue an executive order that suspends that requirement. The supreme court concluded that, by adopting the phrase "in their own proper persons," the voters who approved article V, section 1 (6) intended that petition signatories sign for themselves rather than permitting someone else to sign for them. The supreme court further concluded that this requirement, read together with the additional article V section 1 (6) requirement that a registered elector attest to the validity of petition signatures, also requires that the in-person signing occur in the presence of the person circulating the petition. The supreme court supported these conclusions by observing, as the U.S. Supreme Court in Meyer v. Grant, 486 U.S. 414 (1988), had observed, that Colorado's initiative process is interactive and involves direct engagement.
In light of its holding that article V, section 1 (6) requires in-person collection of initiative petition signatures, the supreme court did not determine whether EO 65 complied with the requirements of the CDEA. Instead it simply concluded that while the CDEA authorizes the Governor to suspend certain types of statutes, rules, and regulations during a declared disaster emergency, it does not authorize the suspension of constitutional provisions. (For more information, contact Jason Gelender.)
Rocky Mountain Gun Owners v. Polis, Colorado Supreme Court No. 18SC817 (June 29, 2020)
Holding: House Bill 13-1224, which prohibits the sale, transfer, or possession of large-capacity magazines, does not violate article II, section 13 of the Colorado Constitution because it is a reasonable exercise of the state's police power and it does not nullify the right to bear arms in defense of home, person, or property.
Case Summary: In 2013, the Colorado General Assembly enacted several bills addressing the possession and transfer of firearms. Shortly after the bills were signed into law, plaintiffs filed a complaint challenging the constitutionality of HB13-1224.
HB13-1224 prohibits the sale, transfer, or possession of large-capacity magazines and defines "large capacity magazine" to include a magazine "designed to be readily converted to accept" more than fifteen rounds. The plaintiffs alleged that a “very large majority” of magazines, contain a removable floor plate or base pad that allows them to be converted to accept more than fifteen rounds and thus would be prohibited under the bill. The plaintiffs claimed that prohibiting such a large number of weapons effectively denies plaintiffs their right to bear arms for self-defense under article II, section 13 of the Colorado Constitution.
The district court concluded that the plaintiffs did not meet their burden to prove HB13-1224 unconstitutional in violation of article II, section 13. The district court found that HB13-1224 sought to address a specific and valid governmental concern regarding the health, safety, and welfare of Coloradans, namely, reducing the number of victims in mass shootings by limiting the number of rounds that can be fired before a shooter has to reload. The district court also concluded that the fifteen-round limit is reasonable and does not impair the constitutionally protected right to keep and bear arms for self-defense or defense of home and property. The court of appeals affirmed the district court's decision and the plaintiffs appealed to the state Supreme Court.
The Colorado Supreme Court first addressed the plaintiff's contention that recent U.S. Supreme Court decisions construing the Second Amendment to the U.S. Constitution should bind the Colorado Supreme Court in its analysis of the right to bear arms in article II, section 13 of the Colorado Constitution. The Colorado Supreme Court held that the U.S. Supreme Court's decisions were not binding on a state court construing a state constitutional provision when the state constitution's text and constitutional tradition is different than that of the federal constitution, as is the case with the Second Amendment and article II, section 13 of the Colorado Constitution. Because the plaintiffs raised claims under the Colorado Constitution and not the Second Amendment to the U.S. Constitution, the Colorado Supreme Court declined to apply U.S. Supreme Court decisions.
Second, the Colorado Supreme Court reaffirmed its holding that it is unnecessary to determine whether the right to bear arms described in article II, section 13 is a fundamental right and expressly disapproved of prior Colorado courts of appeals decisions making such declarations.. The Court then stated that the government may regulate firearms consistent with article II, section 13 so long as the enactment is (1) a reasonable exercise of the police power that (2) does not work a nullity of the right to bear arms in defense of home, person, or property. The Court explained that this test, known as the "reasonable exercise" test, differs from the rational basis review used by the courts in other contexts in that it requires an actual, not just conceivable, legitimate purpose related to health, safety, and welfare, and the test establishes that nullifying the right to bear arms in self-defense is neither a legitimate purpose nor tolerable result.
Returning to the law at issue, and applying the reasonable exercise test, the Supreme Court held that HB12-1224 did not violate article II, section 13. Concerning the first prong of the test, the Court held that HB13-1224 is a reasonable exercise of the state's police power because the discrete legislative purpose in enacting the bill, to reduce the number of people who are killed or shot in mass shootings, lies within the state's police power and the legislation is reasonably related to the legitimate governmental purpose of reducing deaths from mass shootings.
As to the second prong of the reasonable exercise test, the Supreme Court held that limiting magazine size to fifteen rounds of ammunition is not a nullity of the right to bear arms in defense of home, person, or property. The court examined the plain meaning of the definition of "large capacity magazine" that includes magazines "designed to be readily converted to accept" more than fifteen rounds, and found that the definition is limited to magazines that would be objectively understood as purposely created or intended for the purpose of being converted to accept more than fifteen rounds. The court explained that the phrase "designed to be" must mean something other than merely "capable of." A magazine "designed" to be readily converted to accept more than fifteen rounds requires an intent or purpose that a magazine merely "capable" of being so converted does not. That interpretation does not make the definition apply to vast majority of magazines, and leaves ample weapons available for plaintiffs to exercise their right to self-defense.
Because HB13-1224 satisfies both prongs of the reasonable exercise test, the Supreme Court upheld the law as a valid regulation of firearms that does not violate article II, section 13 of the Colorado Constitution. (For more information, contact Conrad Imel.)
Guy, T v. Whitsitt, Colorado Court of Appeals No. 19CA0125 (June 11, 2020)
Holding: The open meetings law requirement of section 24-6-402 (4), C.R.S., that the particular matters to be discussed in an executive session of a local public body be "identified in as much detail as possible without compromising the purpose for which the executive session is authorized" is violated when a town council's public notice of an executive session references only the general statutory categories of legal advice and personnel matters without providing any information as to what legal advice or personnel matters will be discussed. To comply with the requirement, the notice must include at least the general subject on which legal advice is sought and identify the subject employee or employees for the personnel matters.
Case Summary: Section 24-6-402 (4), C.R.S., requires the particular matters to be discussed in an executive session of a local public body to be "identified in as much detail as possible without compromising the purpose for which the executive session is authorized." During four public meetings, the Basalt town council went into executive sessions to discuss matters related to property interests, receive legal advice on specific legal questions, determine negotiating positions, and address personnel matters. In its required public notices of the executive sessions (notices), the town council simply cited the appropriate statutory authority for the executive sessions without providing any information about what property interests, legal advice, negotiations, or personnel matters would be discussed.
Plaintiff applied to the district court for an order declaring that the notices failed to adequately identify the particular matters to be discussed as required by section 24-6-402 (4), C.R.S., and requiring disclosure of the records of the executive sessions. The district court granted plaintiff the requested relief with respect to the matters relating to property interests and negotiations but concluded that the notices were not required to include any specific information about the legal and personnel matters because of the nature of the attorney-client privilege and the subject employee's privacy interests. Plaintiff appealed.
The Colorado Court of Appeals reversed the district court and held that the notices had not provided adequate notice of the legal and personnel matters. With respect to the legal matters, the court of appeals concluded that it was possible, and therefore legally required, for the notices to identify at least the subject matter of the legal matters to be discussed because the attorney-client privilege does not ordinarily encompass mere identification of the subject matter of an attorney-client communication. With respect to the personnel matters, the court of appeals concluded that the notices were required to at least identify the subject employee because: (1) a public employee has a narrower expectation of privacy than other citizens; and (2) the town's argument that disclosure could violate the terms of its employment contract with the employee was not relevant because a town may not, by contract, evade its statutory obligations.
The case is of particular interest to the General Assembly because section 24-6-402 (3)(a), C.R.S., establishes for a state public body, as section 24-6-402 (4), C.R.S., does for a local public body, the requirement that the particular matters to be discussed in an executive session be "identified in as much detail as possible without compromising the purpose for which the executive session is authorized." (For more information, contact Jason Gelender.)
People v. Jones, Colorado Supreme Court No. 18SC445 (June 1, 2020)
Holding: The Supreme Court ruled that it cannot discern the legislature's intent regarding a defendant's criminal liability under the child abuse statute for injury that the defendant caused to an unborn fetus who is later born alive with the consequences of that injury. Under the rule of lenity, the Supreme Court vacated the conviction for child abuse and ruled the defendant cannot be retried on that charge.
Case Summary: A division of the Colorado Court of Appeals in People v. Lage, 232 P.3d 138 (Colo. App. 2009), held that the term "person" in the child abuse statute included a fetus who was injured while in the womb, was subsequently born and lived outside the womb, and then died from the injuries. The Court of Appeals reached its conclusion based on the application of the common law "born alive" doctrine in the criminal context and the Colorado Supreme Court's application of the doctrine in Colorado's civil wrongful death statute.
The Supreme Court overruled the Court of Appeals decision in People v. Lage. The Supreme Court noted that it has never recognized the "born alive" doctrine in the criminal context and is particularly concerned that using it would usurp the role of the legislature. The Supreme Court rejected the notion that the General Assembly agreed with the decision in People v. Lage because it's impossible to assert with any degree of assurance that the legislature's failure to act represents affirmative legislative approval of the Court of Appeals statutory interpretation and because the Supreme Court has never interpreted "person" in the child abuse statute.
Without a definition of "person" in the child abuse statute, the Supreme Court turned to various aids of statutory construction, but none supplied a satisfactory interpretation, so it applied the rule of lenity. The rule of lenity provides that when a court cannot discern legislative intent, ambiguity in the meaning of a criminal statute must be interpreted in favor of the defendant. Using that rule, the Court held that a "person," as defined in the child abuse statute, does not include a fetus who is later born alive. Therefore, the defendant cannot be retried for the crime of child abuse. (For more information, contact Brita Darling.)
People in Interest of R.D., Colorado Supreme Court No. 17SC116 (June 1, 2020)
Holding: A true threat is a statement that, considered in context and under the totality of the circumstances, an intended or foreseeable recipient would reasonably perceive as a serious expression of intent to commit an act of unlawful violence. In determining whether a statement is a true threat, a reviewing court must examine the words used, but it must also consider the context in which the statement was made. Particularly, if the alleged threat is communicated online, the contextual factors courts should consider include, but are not limited to (1) the statement's role in a broader exchange, if any, including surrounding events; (2) the medium or platform through which the statement was communicated, including any distinctive conventions or architectural features; (3) the manner in which the statement was conveyed (e.g. anonymously or not, privately or publicly); (4) the relationship between the speaker and recipient; and (5) the subjective reaction of the statements intended or foreseeable recipient.
Case Summary: In 2013, a deadly shooting occurred at Arapahoe High School. A few days after the shooting, a conversation began on social media regarding the shooting. The conversation turned contentious between students from two schools. After some back-and-forth, R.D., a juvenile engaged in the conversation, posted a picture of a handgun with a message referencing the Arapahoe High School shooting, and directed the post at another student. Further back-and-forth ensued.
The People filed petition in delinquency, charging R.D. with harassment under section 18-9-111 (1)(e), C.R.S. R.D. moved to dismiss the charge, arguing the statements were protected free speech. The juvenile court adjudicated R.D. delinquent, acknowledging that while the students involved in the conversation exchanged words online similar to those that would occur in a school yard fight, R.D. crossed a line when the picture of the gun was posted, similar to when a person would show a gun during a school yard fight.
R.D. appealed, arguing the adjudication violated the right to free speech. The People responded that statements were true threats and consequently unprotected speech. The Court of Appeals concluded that R.D.'s statements were not true threats because they did not constitute a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals. The Court of Appeals relied on contextual factors in its decision, specifically that R.D. did not personally know the recipient of the statements, R.D. sent the messages publically instead of privately, and the recipient's reactions to the picture of the gun did not suggest the recipient viewed the the statement as a true threat.
The Supreme Court reviewed whether the Court of Appeals erred in determining that R.D.'s online statements were protected by the First Amendment. After reviewing precedent regarding the true threats exception to free speech protection, the Supreme Court held that a true threat is a statement that, considered in context and under the totality of the circumstances, an intended and foreseeable recipient would reasonably perceive as a serious expression of intent to commit an act of unlawful violence. The Supreme Court emphasized that in addition to examining the words, the examining court must consider the context the statement was made, especially if made online. The Supreme Court then outlined various contextual factors to consider when the statement is made online.
The Supreme Court reversed the Court of Appeals' decision, and remanded the case to the juvenile court to reconsider the case under the standard and new test. (For more information, contact Jacob Baus.)
Amica Life Ins. Co. v. Wertz, Colorado Supreme Court No. 19SA143 (April 27, 2020)
Holding: The general assembly may not delegate to an interstate administrative agency the authority to adopt regulations that effectively override Colorado statutory law; such action amounts to the improper delegation of legislative authority.
Case Summary: This case required the Colorado 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?
The certified question arose from a dispute in which plaintiff Amica Life Insurance Company (Amica) sought a declaratory judgment that it was not required to pay defendant 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 contended that the Amica policy’s two-year suicide exclusion was unenforceable because it conflicts with section 10-7-109, C.R.S., which provides that the suicide of a policyholder after the first year of any life insurance policy is not a defense against the payment of a policy. Wertz argued that the General Assembly could not properly delegate to the Commission the authority to enact a standard that effectively overrides this statute.
The court agreed with Wertz and declared 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 law. Such action would amount to the improper delegation of legislative authority. (For more information, contact Richard Sweetman.)
People v. Maloy, Colorado Court of Appeals No. 17CA0026 (April 23, 2020)
Holding: As applied to the facts of this case, the defendant's patronizing a prostituted child conviction violates the equal protection clause because the conviction carries a higher penalty than other crimes that prohibit essentially the same conduct.
Case Summary: People v. Maloy, 2020 COA 44, involved 17-year-old, MC, who ran away from a group home. The court found that MC met Maloy and that Maloy scared or threatened her, that MC required her to prostitute herself to stay in his apartment with his girlfriend, that Maloy and his girlfriend took the money made from prostituting MC, and that Maloy's girlfriend placed an ad for sex with MC and responded to people seeking sex with MC. At trail, Maloy argued that he did not induce MC to prostitute herself, did not take money from her, and was not involved in prostitution. The jury found Maloy guilty of patronizing a prostituted child (patronizing), pimping a child, keeping a place of child prostitution, and inducement of child prostitution.
A division of the Court of Appeals vacated his conviction for patronizing. The Court of Appeals held that, as applied to the facts of the case, charging the defendant with patronizing a prostituted child pursuant to section 18-7-406(1)(a), C.R.S., violates the defendant's constitutional right to equal protection of the laws under Article II, Section 25 of the Colorado Constitution because the patronizing prohibits essentially the same conduct, or less culpable conduct, as other child prostitution offenses while carrying a much higher sentence. In considering an as-applied challenge, the court must determine whether, under the specific circumstances under which the defendant acted, the relevant statutes punish identical conduct, and whether a reasonable distinction can be drawn between the conduct punished by the two statutes.
The Court of Appeals rejected the argument that patronizing is distinguishable from the other child prostitution offenses because patronizing is the only offense that criminalizes sexual contact with a prostituted child. Instead, the Court of Appeals found that having sexual contact with a prostituted child is not required to prove a violation of patronizing. The court found in Maloy's case that patronizing proscribes essentially the same conduct as pandering of a child and inducement of child prostitution.
Patronizing a prostituted child is a class 3 felony, the same as inducement of child prostitution. A class 3 felony carries a sentence of 4 to 12 years imprisonment. But, patronizing is also subject to sentencing under the Sex Offender Lifetime Supervision Act (SOLSA), part 10 of article 1.3 of title 18, C.R.S. Under the SOLSA, Maloy would be eligible for parole in 4 years, but, at the parole board's discretion, may remain in prison indefinitely. In analyzing equal protection claims, the court compares the severity of the sentences for the relevant crimes based on the maximum possible period of incarceration, not the timing of parole eligibility. Therefore, a sentence that could possibly have an offender in prison for life is a harsher sentence than the maximum 12 year sentence for inducement. In this case, the Court of Appeals held that, as applied to Maloy's conduct, Maloy's conviction for patronizing violates equal protection because as applied to Maloy the crime inducement penalizes the same or more culpable conduct with a lighter sentence.
Because patronizing is the only child prostitution offense that is subject to the SOLSA, the Court of Appeals surmised that the General Assembly chose that penalty for the offense because it believed that patronizing a child prostitute is the only child prostitution charge that requires proof of sexual conduct by the child victim. However, while a person may violate the statute by having sexual contact with a prostituted child, it is unclear whether proof of sexual conduct is necessary to sustain a patronizing charge. Further, without proof of sexual conduct by the prostituted child, under the facts in this case, the possibility of an indeterminate sentence under SOLSA for patronizing is a much harsher sentence than other crimes that punish the same conduct, and is therefore unconstitutional as applied to Maloy. The Court of Appeals suggests that the General Assembly revisit that issue, as well as the child prostitution offenses generally. (For more information, contact Brita Darling.)
Goodall v. Griswold, United States District Court for the District of Colorado No. 18-CV-00980-PAB-KMT (March 21, 2019)
Holding: The United States District Court for the District of Colorado held that § 1-4-905 (1), as that section existed before being amended by House Bill 19-1278, violated the First Amendment to the U.S. Constitution because the requirement that petition circulators be registered voters and residents of the state is not narrowly tailored to protect the integrity of the petition process.
Case Summary: In January 2018, U.S. Representative Douglas Lamborn announced his intent to seek the Republican party nomination in the primary election for Colorado's fifth congressional district. Pursuant to § 1-4-801, which allows for designation of party candidates by petition, various volunteer and professional circulators circulated nominating petitions on Representative Lamborn's behalf. Representative Lamborn was required to obtain 1,000 verified signatures from registered Republicans in the fifth congressional district to gain access to the primary election ballot.
Five voters from the congressional district filed a petition in the District Court for the City and County of Denver claiming that seven individuals who had circulated nominating petitions in support of Representative Lamborn's placement on the primary ballot did not live within the state, in violation of the residency requirement of § 1-4-905 (1), as that section existed before being amended by House Bill 19-1278 (former § 1-4-905 (1)).
The Denver district court concluded that only one of the circulators, Jeffrey Carter, failed to meet the residency requirements. The Colorado Supreme Court reversed, holding that another circulator, Ryan Tipple, also was not a state resident at the time that he collected signatures on behalf of Representative Lamborn. The supreme court invalidated the 269 signatures collected by Tipple, causing Representative Lamborn to have collected fewer than the 1,000 signatures needed to qualify him for the primary ballot. As a result, the supreme court prohibited the Secretary of State (Secretary) from certifying Representative Lamborn for the 2018 primary ballot.
Registered voters in the fifth congressional district, Tipple, Representative Lamborn, and Lamborn for Congress (plaintiffs) filed a lawsuit in the United States District Court for the District of Colorado on April 25, 2018. Plaintiffs challenged the constitutionality of the circulator residency and voter registration requirements of former § 1-4-905 (1).
Because the plaintiffs sought to participate in core political speech — petition signing and circulation — but the residency requirement in § 1-4-905 (1) operated to reduce the pool of available circulators and limit the quantum of speech in the election process, the district court determined that strict scrutiny is the appropriate standard to apply. Under this standard, when a state law or regulation imposes severe restrictions on First Amendment rights, the law or regulation must be narrowly drawn to advance a state interest of compelling importance.
The Secretary asserted that the state has a compelling interest in protecting the integrity and reliability of the state's election processes. The district court agreed, but concluded that former § 1-4-905 (1)'s residency requirement was not narrowly tailored to serve that interest.
The Secretary argued that the residency requirement helps to reduce circulator fraud, but that argument failed because the district court determined that courts have found that similar frequency of fraud by in-state and out-of-state circulators. The court also found that the concerns about circulator fraud are largely obviated by the process for verifying signatures on candidate petitions under § 1-4-908 (1.5)(a).
Finally, the Secretary argued that the residency requirement ensures that the state can subpoena a circulator and compel the circulator to travel to and attend a hearing within a short time frame if there is a contest over a petition's sufficiency. The district court rejected the argument because courts have routinely found that requiring circulators to sign affidavits or enter into agreements in which they provide their relevant contact information and agree to return in the event of a protest is a more narrowly tailored means of ensuring a state's ability to locate circulators than a residency requirement is.
On May 1, 2018, after holding an evidentiary hearing, the district court issued a preliminary injunction that prohibited the Secretary from enforcing the portion of former § 1-4-905 (1) that required petition circulators to be state residents. The district court also ordered the Secretary to certify Representative Lamborn to the 2018 Republican primary ballot for the fifth congressional district unless, for reasons other than the residency requirement, he did not qualify.
On July 30, 2018, the parties filed a joint motion seeking: (1) a declaration that the residency requirement of former § 1-4-905 (1) is unconstitutional under the First Amendment; (2) a declaration that the voter registration requirement of former § 1-4-905 (1) is unconstitutional under the First Amendment; and (3) a permanent injunction prohibiting the Secretary from enforcing those portions of former § 1-4-905 (1) that require petition circulators to be registered voters and residents of the state. On March 21, 2019, the district court issued an order granting the joint motion and permanently enjoing the Secretary "from enforcing those portions of [former] §1-4-905 (1) that require petition circulators to be registered voters and residents of the State of Colorado." Thereafter, the General Assembly enacted and the Governor approved House Bill 19-1278, which, among many other things, amended former § 1-4-905 (1) to remove the requirements that circulators be registered voters and Colorado residents. (For more information, contact Michele Brown.)
People v. Weeks, Colorado Court of Appeals No. 19CA0255 (March 19, 2020) and
People v. Roddy, Colorado Court of Appeals No. 17CA2267 (April 23, 2020)
Holding: "Determination" of restitution under section 18-1.3-603 (1)(b), C.R.S., requires the court to order a specific amount of restitution within ninety-one days unless good cause exists to extend the deadline.
Case Summary: Two recent Court of Appeals divisions faced the same question in the restitution statute, section 18-1.3-603 (1)(b), C.R.S. Does the ninety-one day deadline to "determine" restitution mean that the district court must specify the amount of restitution within the deadline? Those divisions came to a different result and acknowledged there is ambiguity in the statute that needs to be addressed by the legislature.
Under section 18-1.3-603 (1)(b), C.R.S., if the district court decides at sentencing to defer its decision regarding the appropriate amount of restitution, "the specific amount of restitution shall be determined within the ninety-one days immediately following the order of conviction, unless good cause is shown for extending the time period by which the restitution amount shall be determined." In addition, section 18-1.3-603 (2), C.R.S., requires the prosecution to "compile such information through victim impact statements or other means to determine the amount of restitution and the identities of the victims" and to "present that information to the court prior to the order of conviction or within ninety-one days, if it is not available prior to the order of conviction. The court may extend this date if it finds that there are extenuating circumstances affecting the prosecuting attorney's ability to determine restitution." This statutory structure creates a situation in which if the prosecution uses most of its ninety-one days to compile the restitution information, it may not leave time for the defendant to file an objection and the court to enter an order within ninety-one days.
In People v. Weeks, 2020 COA 44, a division of the Court of Appeals vacated the order of restitution finding that the district court erred by ordering restitution more than eleven months after sentencing without good cause for delaying its ruling. The Court of Appeals held that "determination" of restitution, as that term is used in subsection (1)(b), means that the court must set the specific amount of restitution within the ninety-one day deadline immediately following the order of conviction. The Court of Appeals recognized the issue created by the statute in which the court and prosecution are under the same ninety-one day clock. The Court of Appeals noted that if there are "extenuating circumstances" pursuant to subsection (2) that necessitate extending the time for the prosecution to present the court with the determination of restitution, that extension could constitute "good cause" for the court to delay the determination of restitution pursuant to subsection (1)(b). However, the district court's order did not specifically explain and the record does not show what good cause existed to explain the delay. The Court of Appeals noted that correcting the confusion in statute requires a legislative fix, not a judicial fix.
The second case is People v. Roddy, 2020 COA 72. The defendant argued that the district court did not have authority to enter a restitution order more than ninety-one days after entry of his deferred sentence when the district court never found that good cause existed for extending the time period. Assuming, but not deciding as the court did in People v. Weeks, that the ninety-one day time limit in subsection (1)(b) applies to the period within which the court must enter an order for a specific amount of restitution, the Court of Appeals held that the district court had the authority to enter the restitution order after the ninety-one day deadline because good cause existed to extend the time period. Good cause had been shown to amend the restitution requests because the victim continued to incur and pay attorney fees which were part of the restitution. Given that finding, the district court must necessarily have found good cause to extend its own determination of restitution. The statute requires that good cause must be shown, but does not dictate when the showing must be made. In this case, the record supports that there was good cause to extend the deadline in subsection (1)(b). Judge Tow filed a special concurrence in People v. Roddy to address the need for clarification of the restitution statute by the legislature with respect to the seemingly conflicting provisions in section 18-1.3-603. (For more information, contact Brita Darling.)
Garcia v. Centura Health Corp., Colorado Court of Appeals No. 18CA1646 (March 5, 2020)
Holding: Under the hospital lien statute, § 38-27-101, when Medicare is the wrongfully injured patient's primary health insurer, the General Assembly intended hospitals to bill Medicare before filing a lien against the patient.
Case Summary: Plaintiff sustained injuries in an automobile accident that resulted from the negligence of another driver and was treated at Centura-St. Anthony North. Less than one month later, Centura filed a lien against plaintiff without first billing Medicare, plaintiff's primary health insurance. Plaintiff filed suit under § 38-27-101 (7) against Centura. In response, Centura released the lien and moved to dismiss plaintiff's claims. Plaintiff cross-moved for summary judgment and the district court ruled in favor of Centura, finding a potential conflict between § 38-27-101 and federal law, and narrowly interpreting the term "primary medical payer of benefits" to exclude Medicare and Medicaid.
The Court of Appeals concluded that the General Assembly intended Medicare to be a "primary medical payer of benefits" and that a requirement for a hospital to bill Medicare is permitted under state and federal law. The court observed that nothing in the legislative history suggests that the General Assembly intended for the word "primary" to be interpreted as it is used in the federal Medicare secondary payer provisions or that the legislature intended to exclude Medicare beneficiaries from the prerequisite health insurance billing requirement for a hospital lien. Also, the federal definition of Medicare as a "secondary payer" does not control the meaning of the statute's phrase "primary medical payer of benefits".
The court reversed the district court judgment granting Centura's motion to dismiss and denying plaintiff's motion for summary judgment. It concluded that plaintiff was subject to a lien in violation of § 38-27-101 (7) and ordered that plaintiff's motion for summary judgment be granted. The case was remanded for the district court to enter judgment in favor of plaintiff and award her recovery in accordance with § 38-27-101 (7).This division's findings are contrary to another division's recent decision in Harvey v. Centura Health Corp. & Catholic Health Initiatives, 2020 COA 18. In that case, the division viewed the term "primary" through the lens of federal Medicare law and concluded that the General Assembly intended to limit a hospital's pre-lien billing requirements when a patient injured as a result of negligence of another person is a Medicare beneficiary. The division considered the statute to be unambiguous and did not consider the legislative history. (For more information, contact Angela Titus.)