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.
People v. Lente, Colorado Supreme Court No. 15SA331 (June 19, 2017)
Holding: Hash-oil extraction is manufacturing, not processing, and is protected by Amendment 64 only for licensed individuals or entities.
Case Summary: Austin Lente was trying to extract hash oil from marijuana using butane. The butane exploded and burned down his laundry room. Mr. Lente was charged with illegally processing or manufacturing marijuana. Mr. Lente argued that Amendment 64 amended the constitution to make processing marijuana legal, and he argued that extracting hash oil is a form of processing. The district court agreed and dismissed the charge. The state appealed to the Supreme Court, which held that Mr. Lente was engaged in manufacturing, not processing, which is legal under Amendment 64 only if the manufacturer holds a license. Mr. Lente did not hold a license. To give effect to the voters' intent in adopting Amendment 64, the Court looked to the definitions of "processing" and "manufacturing" that were in place when Amendment 64 passed. Because Amendment 64 did not separately define manufacturing and processing, the voters are presumed to have adopted the accepted meanings existing at the time. There was no definition for processing, but there was one for manufacturing, which the Court found included extracting hash oil. The Court reversed the district court's holding and remanded the case to the district court for further proceedings. (For more information, contact Jeremiah Barry.)
Vallagio at Inverness v. Metro. Homes, Colorado Supreme Court No. 15SC508 (June 5, 2017)
Holding: In this case involving construction defect claims raised by the Vallagio at Inverness Residential Condominium Association, against Metropolitan Homes, Inc., the Colorado Supreme Court affirmed the Colorado Court of Appeals' decision that provisions of a common interest community's declaration that require all construction defect claims to be submitted to binding arbitration and specify that the binding arbitration provision may only be amended with the declarant's consent do not violate the Colorado Common Interest Ownership Act (CCIOA) or the Colorado Consumer Protection Act (CCPA).
Case Summary: A provision of a common interest community's original declaration required all construction defect claims to go through binding arbitration. Another provision prohibited the unit owners of the common interest community from amending the provision establishing the binding arbitration requirement without the declarant's consent. After a construction defect dispute arose, at least 67% of the unit owners, in accordance with section 38-33.3-217, C.R.S., which establishes a 67% voting threshold for amending a declaration, voted to amend the declaration to remove the binding arbitration requirement. Thereafter, the unit owner's association, the Vallagio at Inverness Residential Condominium Association (association) filed a civil complaint against Metropolitan Homes, Inc. (declarant) in district court asserting the construction defect claims. The declarant moved to compel arbitration, arguing that the amendment removing the binding arbitration requirement was invalid because the unit owners had not obtained the declarant's consent to the amendment. The association argued that the declarant consent requirement violated the CCIOA and that the binding arbitration requirement violated the CCPA. The district court denied the declarant's motion to compel arbitration, and the declarant filed an interlocutory appeal. The Colorado Court of Appeals reversed the district court's determination, concluding that the amendment consent and binding arbitration provisions did not violate either the CCIOA or the CCPA and were therefore valid and enforceable. The Colorado Supreme Court granted the association's petition for certiorari and affirmed the court of appeals' decision.
The supreme court held that the provision of the declaration requiring the declarant's consent to any amendment to the binding arbitration provision of the declaration did not violate the CCIOA's provision requiring a 67% vote of unit owners to amend the declaration. The court rejected the association's argument that the CCIOA provision set forth the exclusive procedure for amending a declaration and concluded that the statutory language in the CCIOA was clear and unambiguous in establishing a percentage threshold only; it did not prohibit additional requirements that did not affect the percentage of unit owners required to affirmatively vote for or agree to an amendment of the declaration. The court further held that the amendment consent requirement did not violate the CCIOA's prohibition against restricting an association's dealings with the declarant more stringently than its dealings with a third party because the amendment consent requirement affected a power held by the unit owners and not the association. Finally, the court held that the CCPA's right to a civil action, i.e. a court proceeding, is waivable because the general assembly did not elect to make the rights afforded by the CCPA non-waivable and that CCPA claims therefore may be adjudicated through binding arbitration. Having held that the binding arbitration provision and provision requiring the consent of the declarant to amend that provision requirements of the declaration were valid, the supreme court remanded the case so that the construction defect claims could proceed through binding arbitration.
Two justices dissented, concluding that the legislative intent of section 38-33.3.-217, C.R.S., is to require no more than 67% of unit owners' votes to amend a declaration and that the declarant consent requirement of the declaration at issue contravened this legislative intent by "effectively allowing the Declarant to grant itself permanent veto power over a supermajority of unit owners and thus unilaterally control the Association's ability to amend the declaration." (For more information, contact Jennifer Berman.)
Martinez v. Colo. Oil and Gas Conservation Comm'n, Colorado Court of Appeals No. 16CA0564 (March 23, 2017)
Holding: The Colorado oil and gas conservation commission erred when it denied a petition to adopt a rule on the basis that it lacked statutory authority to adopt the proposed rule to prohibit issuance of a well permit if the permit would adversely impact public health or impair the environment, including wildlife. The plain meaning of the statute authorizes the commission to foster the development of oil and gas resources in a manner consistent with the protection of public health, safety, and welfare, including the protection of the environment and wildlife resources.
Case Summary: Plaintiffs petitioned for a rule that would require the commission to deny a well permit unless the drilling can occur in a manner that does not cumulatively impair Colorado's atmosphere, water, wildlife, and land resources, does not adversely impact human health, and does not contribute to climate change. The commission denied the petition, determining that the commission lacked statutory authority to adopt the proposed rule. The district court upheld the commission's determination, finding that the statute requires the commission to balance developing oil and gas resources with protecting public health, safety, and welfare.
The court of appeals reversed based on its analysis of the oil and gas statute's legislative declaration, which states that it is in the public interest to foster the "responsible, balanced development, production, and utilization of the natural resources of oil and gas in the state of Colorado in a manner consistent with protection of public health, safety, and welfare, including protection of the environment and wildlife resources." The court construed the word "balanced" as applying only to the phrase "development, production, and utilization" and concluded that the development of oil and gas resources is in the public interest only when it occurs in a manner consistent with the protection of public health, safety, and welfare, including the protection of the environment and wildlife resources. The court held that "in a manner consistent with" does not indicate a balancing test but rather a condition that must be fulfilled. The court construed a substantive portion of the statute in a similar manner, finding that the commission's authority to regulate "[o]il and gas operations so as to prevent and mitigate significant adverse environmental impacts . . . to the extent necessary to protect public health, safety, and welfare . . . taking into consideration cost-effectiveness and technical feasibility" supports the conclusion that the general assembly intended to elevate the importance of public health, safety, and welfare above a mere balancing test. (For more information, contact Thomas Morris.)
Broomfield Senior Living Owner, LLC v. R.G. Brinkmann Co., Colorado Court of Appeals No. 16CA0101 (March 9, 2017).
Holding: Broomfield Senior Living Owner, LLC, although it is an entity and not an individual, is a "residential property owner" and therefore is entitled to the benefit of the "Homeowner Protection Act", which voids certain contractual provisions limiting claims for construction defects.
Case Summary: Broomfield Senior Living Owner, LLC, acquired rights under a contract for the construction of a senior living community with multiple residential units, which Broomfield would rent out to individual tenants. Brinkmann Constructors was the builder. The project was completed in 2009. In late 2012, Broomfield became aware of the likelihood of plumbing problems, i.e., broken pipes under a concrete floor, and notified Brinkmann of the defect. Brinkmann disputed liability and Broomfield sued.
The contract contained time limits and notice requirements for any claims against Brinkmann. The time limits were shorter than the statutory limitation periods that would otherwise apply if Broomfield were a "residential property owner"; therefore, those time limits would be void under the "Homeowner Protection Act of 2007". This raised the question of whether Broomfield, as a commercial enterprise, was a "residential property owner" within the intended meaning of the "Homeowner Protection Act". The trial court held that it was not and granted summary judgment to Brinkmann based on the shorter contractual limitation periods.
The Colorado Court of Appeals reversed, concluding that Broomfield did meet the definition of a "residential property owner" entitled to the protection of the "Homeowner Protection Act". While there is no definition of "residential property owner" or of "residential property", the court of appeals found that the common usage of the term was unambiguous and a companion statute defines "commercial property" as property zoned for "commercial, industrial, or office" use, none of which were permitted uses of the property in question. Therefore, the property was "residential property" and Broomfield, as its owner, was a "residential property owner". (For more information, contact Darren Thornberry.)
Lewis v. Taylor, Colorado Court of Appeals No. 13CA0239 (February 9, 2017)
Holding: If an investor gives reasonably equivalent value for the receipt in good faith of profits from an investment in a Ponzi scheme, the transfer of the profits to the investor is not voidable.
Case Summary: Steve Taylor (defendant) invested money in a Ponzi scheme. Before the scheme was shut down and without knowing that it was an illegal arrangement, he received substantial profits and withdrew all of his principal. After the Ponzi scheme was discovered and shut down, the trial court appointed a receiver. The receiver sued the defendant in Denver District Court under the "Colorado Uniform Fraudulent Transfer Act" (CUFTA) to void the transfers of the profits to him so that those profits could be used to provide restitution to later investors in the Ponzi scheme who lost some or all of the principal amounts of their investments. The defendant argued that the receiver's claim was not timely and that even if it were timely the transfers of profits were not voidable because he received the profits in good faith and gave reasonably equivalent value for them.
The district court granted summary judgment to the receiver, holding that the claim was timely and that the transfers of profits to the defendant were voidable. The Court of Appeals reversed the trial court, holding that the receiver's claim was not timely. The Supreme Court reversed the Court of Appeals, holding that the receiver's claim was timely, and remanded the case to the Court of Appeals to determine whether the transfers of profits to the defendant were voidable.
The Court of Appeals, in what it said was a case of first impression in Colorado, held that if an investor gives reasonably equivalent value for the receipt in good faith of profits from an investment in a Ponzi scheme, transfers of the profits to the investor are not voidable. The court declined to follow federal case law that construed other states' versions of the "Uniform Fraudulent Transfer Act" so that "reasonably equivalent value" can never be given for profits from a Ponzi scheme. Those cases reasoned that upholding transfers of profits depletes the assets of the scheme operator, thus depriving subsequent investors of the return of their principal. But the Court of Appeals noted that upholding transfers of principal has the exact same effect of depleting the assets and reducing other parties' restitution and further reasoned that the time-value of money could constitute reasonably equivalent value. Finding the relevant provision of CUFTA, section 38-8-109 (1), C.R.S., which states that "[a] transfer or other obligation is not voidable . . . against a person who took in good faith and for a reasonably equivalent value . . .", to be clear, it remanded the case to the district court to make particularized findings of fact as to whether reasonably equivalent value was given for each individual transfer of profits. The Court of Appeals also suggested hat the General Assembly may wish to enact a new statute if it finds that the current statute does not provide sufficiently equitable remedies for victims of Ponzi schemes. (For more information, contact Thomas Morris.)
People v. Crouse, Colorado Supreme Court No. 14SC109 (January 23, 2017)
Holding: Section 14(2)(e) of article XVIII of the state constition that requires law enforcement to return marijuana after an acquittal based on a medical marijuana defense is unconstitutional.
Case Summary: The defendant was charged with cultivating and possessing marijuana with the intent to distribute. The police seized drug paraphernalia, 55 marijuana plants, and approximately 2.9 kilograms of marijuana from the defendant's home. The defendant asserted the defense that he was a medical marijuana patient authorized to cultivate and possess marijuana. The jury acquitted the defendant. The defendant requested the police return the seized marijuana paraphernalia and marijuana plants pursuant to section 14(2)(e) of article XVIII of the state constitution. That section requires "marijuana and paraphernalia seized by state or local law enforcement officials from a patient . . . in connection with the claimed medical use of marijuana shall be returned immediately upon . . . the dismissal of charges, or acquittal". The people opposed the motion arguing that it conflicts with and is preempted by the Federal Controlled Substances Act. The Supreme Court agreed with the people that the return provision of the constitution requires police officers to violate federal law by distributing marijuana when they return the marijuana to the acquitted person. The Supreme Court declared there was a positive conflict between state and federal law and therefore the state law was preempted by the Federal Controlled Substances Act. (For more information, contact Michael Dohr.)
People v. Patton, Colorado Court of Appeals No. 14CA2087 (December 29, 2016)
Holding: The term "notice" in section 18-5-702, C.R.S., is not limited to notice in person or in writing.
Case Summary: On December 21 and 22, 2009, the defendant purchased over $8000 worth of electronics equipment from an electronics store using a debit card issued to him. The card was declined during the transaction, but the defendant used a false override authorization code to force the sale. Defendant's bank had cancelled the card on December 9, 2009, after the defendant called the bank to report that he never received the card. A bank representative testified that the bank employee would have told the defendant during the phone call that the card was cancelled. Defendant was charged with unauthorized use of a financial instrument and theft.
Under section 18-5-702 (1), C.R.S., a person commits unauthorized use of a financial instrument if he or she uses a financial device, such as a debit card, after he or she has notice that the "device has expired, has been revoked, or has been cancelled". Section 18-5-702 (2), C.R.S., states that notice "includes either notice given in person or notice give in writing to the account holder". The question before the court was whether notice under section 18-5-702, C.R.S., is limited to just notice in person or in writing. The prosecution relied on the phone call to satisfy the notice element. The Court of Appeals suggested that the statute was ambiguous or unclear. The defendant argued that the term "includes" makes the definition of notice exclusive to just in-person or in-writing notice. The court disagreed. The court found that the notice element is not limited to in-person or in-writing notice because the word "includes" is a word of extension and illustration not limitation. The Court of Appeals upheld the conviction, finding that notice by means of a phone call was sufficient to satisfy that element of the crime since the statute did not limit notice to being in writing or in person. (For more information, contact Michael Dohr.)
City of Northglenn v. Bd. of County Comm'rs, Colorado Court of Appeals No. 15CA1743 (December 15, 2016)
Holding: Adams County does not have either constitutional or stautory authority to impose a special sales tax on retail marijuana. Accordingly, the Adams County special sales tax on retail marijuana is invalid. In addition, the Cities had standing to sue Adams County becuase the county marijuana sales tax levied by Adams County would likely harm the fiscal interests of the Cities by reducing their tax revenue.
Case Summary: In 2012, Colorado voters approved Amendment 64 to the Colorado Constitution, which authorizes personal use and regulation of marijuana. In 2013, the General Assembly proposed, and Colorado voters approved, a 10% state special sales tax on all sales of retail marijuana and retail marijuana products (state marijuana sales tax). The state marijuana sales tax is levied in addition to the general state sales tax, which also applies to such sales. Section 39-28.8-203, C.R.S., requires the state to apportion a portion of state marijuana sales tax revenue to local governments and section 39-28.8-203 (1)(a)(VI), C.R.S., clarifies that the distribution mechanism "shall [not] be construed to prevent a local government from imposing, levying, and collecting any fee or any tax upon the sale of retail marijuana or retail marijuana products." Accordingly, in addition to the state special sales tax, the Adams County cities of Northglenn, Aurora, and Commerce City (the Cities), which as home rule cities all have "the full right of self-government in both local and municipal matters," levy special sales taxes on all sales of retail marijuana and retail marijuana products occurring within the cities (city marijuana sales taxes).
Article 2 of title 29, C.R.S., explicitly authorizes a county to impose a general countywide sales tax, as well as special sales taxes for specified purposes, but does not explicitly authorize a county to impose a special sales tax on retail marijuana or retail marijuana products (county marijuana sales tax). Nonetheless, in 2014, the board of county commissioners of Adams County proposed, and the registered electors of Adams County approved, a county marijuana sales tax.
In May 2015, the Cities sued Adams County in Adams County District Court, claiming that Adams County had no legal authority to impose or collect the county marijuana sales tax and that imposition of the unauthorized tax would reduce their marijuana-related tax revenue by placing retail marijuana businesses in the cities at a competitive disadvantage to retail marijuana businesses in other jurisdictions where there is no county marijuana sales tax. The Cities argued that the state and cities are expressly authorized to respectively levy state and city marijuana sales taxes but that even though the General Assembly has expressly authorized counties to levy certain other special sales taxes, it has not authorized counties to levy a county marijuana sales tax. Adams County argued that section 39-28.8-203 (1)(a)(VI), C.R.S., authorizes the county to levy a county marijuana sales tax by clarifying that section 39-28.8-203 does not prevent a local government from imposing, levying, and collecting a tax on the sale of retail marijuana. Adams County also argued that the Cities lacked standing to sue.
The District Court held that the Cities had standing to sue because the county marijuana sales tax levied by Adams County likely would likely harm the fiscal interests of the cities by reducing their tax revenue. The District Court also concluded that the plain language of section 39-28.8-203 (1)(a)(VI), C.R.S., when read in conjunction with both the statutory definition of "local government", which includes counties, and the statutory provision authorizing the state to levy the state marijuana sales tax, authorizes counties to levy a county marijuana sales tax.
The Cities appealed, and the Colorado Court of Appeals, after briefly confirming that the Cities had standing to sue on the same grounds relied upon by the District Court, reversed the District Court on the merits, concluding that Adams County does not have constitutional or statutory authority to impose a county marijuana sales tax.
The Court of Appeals, noting that "in Colorado a grant of taxation authority . . . must be explicit" and that "counties only have those powers expressly conferred by the state," first determined that a county may impose a special sales tax like a county marijuana sales tax only if there is express constitutional or statutory authority to do so. The Court then held that neither the general county sales tax authority in section 29-2-103, C.R.S., nor the state retail marijuana sales tax authority in section 39-28.8-203, C.R.S., confers express authority for a county to levy a county marijuana sales tax, specifically stating that the general county taxing authority authorizes only a general county sales tax and that the absence of an explicit prohibition against counties imposing a county marijuana sales tax in section 39-28.8-203, C.R.S., does not itself authorize a county to impose such a tax. Finally, the Court rejected Adams County's argument that the election approving the county retail marijuana sales tax deprived the court of authority to invalidate the tax, finding the validity of the election irrelevant to whether Adams County had the underlying legislative power to impose the tax. Accordingly, the Court held that Adams County’s county marijuana sales tax is invalid and reversed the judgment of the District Court. (For more information, contact Nicole Myers.)
Grand Valley Water Users Ass’n v. Busk-Ivanhoe, Inc., Colorado Supreme Court No. 14SA303 (December 5, 2016)
Holding: In construing a water rights decree, the water court erred in finding an implied right to store transmountain water before its original direct-flow use in the importing basin. Just because transmountain water can be reused to extinction after it has been put to its original use does not mean that it can be stored before its original direct-flow use.
Case Summary: A 1928 water rights decree authorized the collection and storage of water in the Colorado river basin and the delivery of the water through a tunnel into the Arkansas river basin for direct-flow irrigation use. The decree did not authorize any storage of the water other than in the Colorado river basin. Historically, the original owners of the water right stored the water in the Arkansas river basin before it was used for irrigation.
The City of Aurora eventually acquired the water rights and filed an application with the water judge to change the type of use from irrigation to municipal and the place of use to Aurora. The water judge, after considering extrinsic evidence that was not considered in the adjudication of the 1928 decree, construed the decree to include an implied right to store the water in the Arkansas river basin. It therefore included the use of the stored water when calculating the amount of historic consumptive use to determine how much water Aurora would be allowed to use in Aurora.
The supreme court reversed the water judge's judgment, holding that it was error to consider the extrinsic evidence when construing the 1928 decree and that just because transmountain water can be reused to extinction after it has been put to its original use does not mean that it can be stored before its original direct-flow use. Therefore, the 1928 decree does not impliedly authorize the storage of the water in the Arkansas river basin, the storage was unlawful, and the use of that water could not be considered in calculating the amount of historic consumptive use. (For more information, contact Thomas Morris.)
Dept. of Transp. v. Amerco Real Estate Co., Colorado Supreme Court No. 16SA75 (September 26, 2016)
Holding: Section 43-1-208, C.R.S., grants condemnation authority to the transportation commission, not the department of transportation, and the commission may not delegate that authority to the department. Unlike other circumstances in which statutes grant the department of transportation authority to determine whether to acquire property by condemnation, the decision to approve the acquisition of property for the kinds of highway alterations enumerated in section 43-1-208, C.R.S., and whether to limit the amount for which that property may be acquired, is a decision vested solely in the transportation commission.
Case Summary: The department of transportation (department) filed a petition in condemnation in Jefferson County District Court to acquire property owned by Amerco Real Estate Company and occupied by U-Haul, citing sections 43-1-208, 43-1-209, and 43-1-210, C.R.S,. as legal authority for its exercise of condemnation power. In the petition, the department asserted that it needed the property for a highway expansion project (project) at the U.S. Highway 36 and Wadsworth Boulevard interchange. Shortly thereafter the department filed a motion for immediate possession of the property.
U-Haul filed a brief in opposition to the department's motion for immediate possession and also requested that the district court dismiss the entire petition in condemnation on the ground that the department lacked legal authority to condemn the property. Specifically, U-Haul argued that the department and the transportation commission (commission) had failed to comply with section 43-1-208 (1) and (2), C.R.S., condemnation prerequisites that: (1) the chief engineer of the department (chief engineer) provide a written report to the commission describing both the project and the specific properties to be condemned and estimating the damages and benefits that would accrue to each affected landowner; and (2) the commission, after receiving the report, make a public determination that both the project itself and the acquisition of the particular properties required for its completion would serve the public interest or convenience (condemnation prerequisites). U-Haul also disputed the legal sufficiency of documents that the department relied on as authority for its condemnation power, specifically a 1994 commission resolution directing the executive director of the department to handle the approval of land acquisition on behalf of the commission and a "Land Acquisition Approval" document signed by the chief engineer that listed properties to be acquired for the project and that also referenced a 2009 commission resolution approving the project.
The district court declined to dismiss the petition in condemnation and granted the department's motion for immediate possession. The district court concluded that: (1) the commission's enabling statutes authorized it to acquire property by either conducting condemnation proceedings itself using the procedures specified in section 43-1-208, C.R.S., or using the general condemnation procedures specified in title 38, C.R.S. (general condemnation procedures); and (2) the 1994 resolution did not improperly delegate the commission's power of condemnation under section 43-1-208, C.R.S., to the chief engineer, but instead simply directed the chief engineer to exercise the commission's power to acquire property using general condemnation procedures.
U-Haul appealed directly to the Colorado Supreme Court. The supreme court reversed the district court, holding that although other statutes grant condemnation authority to the department in other circumstances, section 43-1-208, C.R.S., which specifically applies to the acquisition of property needed for projects that "establish, open, relocate, widen, add mass transit to, or otherwise alter a portion of a state highway," does not and that "the decision to approve the acquisition of property for the kinds of highway alterations enumerated in section [43-1-]208, [C.R.S.] in the first instance, and whether to limit the amount for which that property may be acquired, is a decision vested solely in the commission." The supreme court also concluded that the commission could not skip the condemnation prerequisites and simply acquire property using general condemnation procedures, but must instead first satisfy the condemnation prerequisites and then decide whether to acquire the needed property using the procedure specified in section 43-1-208, C.R.S., or general condemnation procedures.
Justice Gabriel, joined by two other justices, filed an opinion concurring in the judgment. Justice Gabriel agreed with the majority of the supreme court that that the commission lacked authority to delegate its section 43-1-208, C.R.S., condemnation authority to the department but disagreed with the majority's conclusion that the commission could not skip the condemnation prerequisites and itself acquire property by simply using general condemnation procedures. (For more information, contact Jason Gelender.)
Martinez v. Estate of Bleck, Colorado Supreme Court No. 14SC346 (September 12, 2016)
Holding: When a public employee defendant files a motion to dismiss a lawsuit based on immunity under the Colorado Governmental Immunity Act (CGIA) and alleges that his or her allegedly tortious conduct was not willful and wanton, he or she is claiming sovereign immunity, which is the only kind of immunity that can be claimed under the CGIA. Consequently, under section 24-10-118 (2)(a) and (2)(a.5), C.R.S., the trial court must determine all issues, including factual issues relating to the immunity claim, before trial and the court's decision regarding the motion is a final decision that is subject to interlocutory appeal. In deciding whether a public employee's conduct is willful and wanton, a court errs in applying a negligence standard and must instead determine whether the conduct exhibits "a conscious disregard of the danger."
Case Summary: Alamosa Police Department officer Jeffrey Martinez (Martinez) and fellow officers responded to a call that Steven Wayne Bleck (Bleck) was suicidal and possibly armed. When Bleck did not respond to the officers' command to show his hands and lie down on the floor, Martinez, without holstering his previously drawn firearm, attempted to subdue him. In the process, Martinez's firearm accidentally discharged and injured Bleck.
Bleck filed a civil lawsuit for battery against Martinez in Alamosa County District Court. Martinez filed a motion to dismiss for lack of subject matter jurisdiction, alleging that because his conduct in attempting to subdue Bleck was not willful and wanton, he was entitled to CGIA immunity under section 24-10-118 (2)(a), C.R.S., which states that "a public employee shall be immune from liability in any claim for injury . . . which lies in tort or could lie in tort . . . and which arises out of an act or omission of such employee . . . unless the act or omission causing such injury was willful and wanton." The district court denied the motion to dismiss, applying a negligence standard and finding that Bleck had adequately pled willful and wanton conduct by alleging that Martinez should have known that attempting to subdue Bleck without first holstering his firearm was dangerous.
Pursuant to section 24-10-118 (2)(a.5), C.R.S., which states that a district court's decision regarding a public employee's motion that raises the defense of sovereign immunity is "a final judgment" that is "subject to interlocutory appeal," Martinez filed an interlocutory appeal of the district court's denial of his motion to dismiss with the Colorado Court of Appeals. The court of appeals concluded that it lacked jurisdiction to hear the appeal because Martinez was only entitled to claim qualified immunity, which is not appealable on an interlocutory basis, not sovereign immunity, which is appealable.
Martinez appealed to the Colorado Supreme Court. The supreme court reversed the court of appeals and remanded the case back to the district court for a determination as to whether Martinez's conduct was willful and wanton. Noting that the CGIA refers only to sovereign immunity and not to qualified immunity, the supreme court "disavow[ed]" language in previously decided supreme court cases that had distinguished between qualified immunity and sovereign immunity and held that sovereign immunity is the only type of immunity that a public employee defendant may raise under the CGIA. Consequently, the question of whether a public employee's conduct is willful and wanton under section 24-10-118 (2)(a), C.R.S., the very question raised by Martinez in his motion to dismiss, implicates the public employee's sovereign immunity and, under section 24-10-118 (2.5), C.R.S., is a final decision that is subject to interlocutory review. The supreme court also held that because "trial courts must resolve all issues pertaining to sovereign immunity prior to trial, including factual issues," the district court had erred by failing to determine whether Martinez's conduct was willful and wanton. Finally, the supreme court held that the district court had incorrectly applied a negligence standard for willful and wanton conduct when it determined that Bleck's claim was sufficiently pled. The supreme court instructed the district court, when deciding on remand whether Martinez's conduct was willful and wanton, to determine whether Martinez's conduct had "exhibited a conscious disregard of the danger." (For more information, contact Jason Gelender.)
Farmer v. Colo. Parks & Wildlife Comm'n, Colorado Court of Appeals No. 14CA2199 (August 25, 2016)
Holding: The parks and wildlife commission's discretion is unfettered when neither the statutes nor the rules provide it with any guidance regarding the appropriate period for which wildlife license privileges should be suspended for the unregistered provision of outfitting services, so the commission's suspension of the privileges for twenty years is vacated as being arbitrary and capricious.
Case Summary: A hunting outfitter allowed his Colorado outfitter registration to lapse but continued to be qualified as an outfitter in Utah. While providing outfitter services in Utah, he and his client followed a mountain lion into Colorado, where the client shot and killed the lion.
Providing unregistered outfitting services is deemed to be the illegal sale of wildlife, a class 5 felony. The outfitter pleaded guilty; the deferred judgment prohibited him from engaging in any hunting activities for two years. The conviction triggered a hearing before the parks and wildlife commission. The statute specifies that the administrative penalty for the illegal sale of wildlife is the suspension of any or all wildlife license privileges for a period of between one year and lifetime. Neither the statutes nor the commission's rules set any standards to guide the commission's determination of an appropriate suspension period.
A hearing officer suspended the outfitter's wildlife license privileges for 20 years, and the commission affirmed the suspension. The outfitter appealed the commission's order to the district court, which affirmed the commission's action.
The court of appeals reversed and vacated the commission's suspension of the outfitter's wildlife license privileges. Because the commission's discretion is unfettered when neither the statutes nor the rules provide it with any guidance regarding the appropriate period for which wildlife license privileges should be suspended, the commission's action was arbitrary and capricious. The court did not express an opinion regarding whether the commission could, after adopting appropriate rules to guide the hearing officer's discretion, institute new suspension proceedings against the outfitter. (For more information, contact Thomas Morris.)