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.
In Interest of Ray v. People, Colorado Court of Appeals No. 17CA1623 (February 21, 2019)
Holding: Certification for involuntary short-term mental health treatment entered by a professional person under section 27-65-107 is not a "court order" under section 13-5-142 (1)(c) and a person's information should not be sent to the CBI for forwarding on the National Instant Criminal Background Check System which would subject the person to federal firearms prohibitions. The court ordered that steps be taken to rescind the reporting to the National Criminal Background Check System.
Case Summary: The petitioner sought mental health treatment at a hospital and a physician certified him for involuntary mental health treatment pursuant to section 27-65-107, C.R.S. The certification was filed with the Denver probate court. As a result the Colorado bureau of investigation was notified and the petitioner was added to National Instant Criminal Background Check System (NCIS). The effect was the petitioner was prohibited from possessing a firearm. The petitioner asked the probate court for removal from NCIS, the probate court denied the petition.
Sections 13-5-142 and 13-9-123, C.R.S., require that when a court orders a person into involuntary mental health treatment pursuant to section 27-65-107, C.R.S., the name of the person must be reported to CBI to have the person listed in the NCIS. The state court administrator has also been submitting the names of persons who are certified for involuntary mental health treatment entered by a professional person, like a physician, pursuant to section 27-65-107, C.R.S., to the Colorado bureau of investigation for reporting to NCIS. The result is those persons, like the petitioner, are subject to federal firearms prohibitions.
The petitioner appealed the probate court decision arguing only persons subject to court-ordered involuntary mental treatment may be placed in NCIS. The court of appeals agreed finding the express language of the statue was limited to court orders not professional person orders. (For more information, contact Jerry Barry.)
People v. Slaughter, Colorado Court of Appeals No. 18CA0842 (February 21, 2019)
Holding: It violates a criminal defendant's constitutional right to equal protection of the laws to charge the defendant with both strangulation under section 18-3-203 (1)(i), C.R.S., and a crime of violence sentence enhancer under section 18-1.3-406 (2)(a)(I)(A), C.R.S.
Case Summary: The defendant was charged with strangulation pursuant to section 18-3-203 (1)(i), C.R.S. Later, the prosecution moved to add a crime of violence sentence enhancer pursuant to section 18-1.3-406 (2)(a)(I)(A), C.R.S., to the charge. The trial court court initially granted the motion, but later reconsidered on defendant's motion and dismissed the sentence enhancer, reasoning that it violated the defendant's constitutional right to equal protection of the laws. The prosecution filed an interlocutory appeal of the dismissal, and the Colorado Court of Appeals affirmed the trial court's decision.
The court of appeals found that a person alleged to have strangled someone can be charged with second degree assault (which unlike first degree assault does not require proof that the defendant caused serious bodily harm to the victim) under either subsection (1)(b) or subsection (1)(i) of section 18-3-203, C.R.S. Under subsection (1)(b), the prosecution must prove that the defendant intended to cause bodily injury and caused bodily injury by means of a deadly weapon. Under section (1)(i), the prosecution must prove that the defendant intended to cause bodily injury and applied sufficient pressure to impede or restrict breathing or blood flow by applying sufficient pressure to the neck, nose, or mouth to actually cause bodily injury. The crime of violence sentence enhancer provided for in section 18-1.3-406 (2)(a)(I)(A), C.R.S., requires proof that the crime was committed with a deadly weapon.
The court of appeals found that a person who is charged with strangulation pursuant to section 18-3-203 (1)(i), C.R.S., in combination with the crime of violence sentence enhancer is subject to a more significant penalty than a person charged with strangulation pursuant to section 18-3-203 (1)(b), C.R.S. In both cases, the prosecution must prove that the defendant intended to cause bodily injury, did cause bodily injury, and used a deadly weapon, in this case the defendant's hands. The court of appeals thus found that there is no meaningful distinction in the criminal conduct, but that there is a significant difference in the possible penalty because a defendant charged under subsection (1)(b) could be sentenced to probation while a defendant charged under subsection (1)(i) with the crime of violence sentence enhancer would receive a minimum five-year prison sentence. Because "if two criminal statutes provide for different penalties for identical conduct, a person convicted under the statute with the harsher penalty is denied equal protection of the laws unless there are reasonable differences between the prohibited behaviors," the court of appeals concluded that the difference in possible sentences created an equal protection violation as applied to the defendant. (For more information, contact Michael Dohr.)
Martin Trust v. Bd. of County Comm'rs, Colorado Court of Appeals No. 17CA0938 (February 7, 2019)
Holding: A parcel of land that is contiguous to a commonly owned parcel of residential land that includes a residence qualifies as residential land only if, as specified in section 39-1-102 (14.4)(a), C.R.S., the parcel "is used as a unit in conjunction with the residential improvements," and the passive use of an unimproved parcel for the preservation of unobstructed views from the residence is not a qualifying conjunctive use. The county assessor therefore properly classified the entire parcel as vacant land and the Board of Assessment Appeals erred in reclassifying a portion of the parcel as residential land.
Case Summary: The Martin Family Partnership, LLP (Petitioner) owns two adjacent parcels of land in La Plata County, the west parcel, which the Martins owned in their own names before transferring it to Petitioner in 2015, and the east parcel. The east parcel includes the Martins' residence and the west parcel is an unimproved lot that adjoins the east parcel's western boundary. Section 39-1-102 (14.4)(a), C.R.S., defines "residential land" for purposes of property taxation to include a parcel of land that is contiguous to a commonly owned parcel of residential land that includes a residence only if it "is used as a unit in conjunction with the residential improvements."
For property tax years 2014 through 2016, the county assessor classified the east parcel as residential land and the west parcel as vacant land. Petitioners appealed to the county board of equalization (CBOE) and the board of county commissioners (BCC), which respectively denied both appeals. Petitioners then appealed to the Board of Assessment Appeals (BAA), which: (1) upheld the classification of the west parcel as vacant land for 2014 because in 2014 Petitioner did not own both parcels; and (2) partly reversed the classification of the west parcel as vacant land for 2015 and 2016 by classifying the two-thirds of the west parcel that it determined was used by the Martins to preserve views from the east parcel as residential land. Petitioner appealed the BAA's decision to the extent that it classified the west parcel as vacant land, the CBOE and the BCC appealed the BAA's decision to the extent that it classified the west parcel as residential land, and the BAA argued that its decision was supported by the evidence.
In two separate opinions, a majority of a three-judge panel of the Colorado Court of Appeals held that a parcel of land that is contiguous to a commonly owned parcel of residential land that includes a residence qualifies as residential land only if, as specified in section 39-1-102 (14.4)(a), C.R.S., the parcel "is used as a unit in conjunction with the residential improvements," and that the passive use of an unimproved parcel for the preservation of unobstructed views from the residence is not a qualifying conjunctive use. In addition, one of the judges, expressly declining to apply contrary nonbinding precedents from other divisions of the court of appeals and reading section 39-1-102 (14.3), C.R.S., which defines "residential improvements" for purposes of property taxation, together with section 39-1-102 (14.4)(a), C.R.S., further concluded that "a parcel that is contiguous to one on which there is a residence can be classified as residential land only when it has a 'building[], structure[], fixture[], fence[], amenity, [or] water right[]' that is 'an integral part of the residential use' of the parcel containing the residence." (For more information, contact Jason Gelender.)
Colo. Oil & Gas Conservation Comm'n v. Martinez, Colorado Supreme Court No. 17SC297 (January 14, 2019)
Holding: The Colorado Supreme Court reversed the opinion of the Colorado Court of Appeals that section 34-60-102 (1)(a)(I), C.R.S., mandates the protection of public health, safety, and welfare, including the environment and wildlife resources, as a condition precedent to the regulation of oil and gas development. The supreme court instead found that the Colorado Oil and Gas Conservation Commission (commission) must foster oil and gas development, protecting and enforcing the rights of owners and producers, while also preventing and mitigating significant adverse environmental impacts to the extent necessary to protect public health, safety, and welfare. The supreme court concluded that the oil and gas conservation commission (commission) did not abuse its discretion when it declined to engage in rulemaking to consider a proposed rule that would require it to deny a permit for the drilling of an oil or gas well unless the "drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado's atmosphere, water, wildlife, and land resources, does not adversely impact human health, and does not contribute to climate change" on the grounds that it lacked statutory authority to adopt the proposed rule and was already working with the department of public health and environment to address the concerns to which the proposed rule was directed.
Case Summary: Plaintiffs petitioned the Colorado oil and gas conservation commission (commission) to adopt a rule that would require the commission to deny a permit for the drilling of an oil or gas well unless the "drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado's atmosphere, water, wildlife, and land resources, does not adversely impact human health, and does not contribute to climate change." The commission declined to engage in rulemaking to consider the proposed rule because it determined that it lacked statutory authority to adopt the proposed rule and because it was already working with the Colorado department of public health and environment (CDPHE) to address the concerns to which the rule was directed and needed to prioritize that effort over the proposed rulemaking.
The Denver district court upheld the commission's determination, concluding that section 34-60-102 (1)(a)(I), C.R.S., requires the commission to balance the development of oil and gas resources against the protection of public health, safety, and welfare. The Colorado Court of Appeals reversed based on its analysis of the statute, and concluded that protection of public health, safety, and welfare constituted a condition that must be fulfilled rather than part of a balancing test.
The Colorado Supreme Court reversed the Colorado Court of Appeals' decision and held that the commission did not abuse its discretion when it denied the rulemaking petition. The supreme court found the language of the statute to be ambiguous and based its decision primarily on the statutory history of the provision, including comments made by legislators upon the introduction of various amendments, especially those pertaining to public health and safety. The supreme court concluded that, based on the perceived legislative intent of the statute, the commission must foster the development of oil and gas resources, protecting and enforcing the rights of owners and producers, and, in so doing, prevent and mitigate significant adverse environmental impacts to the extent necessary to protect public health, safety, and welfare, but only after taking into consideration cost-effectiveness and technical feasibility. As such, the protection of public health and the environment is a factor to consider rather than a condition precedent in regulating oil and gas development. (For more information, contact Thomas Morris.)
People v. Salgado, Colorado Court of Appeals No. 18CA0885 (January 10, 2019)
Holding: The Colorado Court of Appeals reversed the Jefferson County District Court and held that: (1) An executive order does not expire when the term of the governor who issued it ends and instead remains in effect until it is revoked, modified, or superseded by subsequent legal authority; and (2) An executive order that merely instructs an executive branch agency to prosecute certain offenses already established in law is not a legislative act constituting an unconstitutional exercise of legislative power by the executive branch in violation of the principle of separation of powers set forth in article III of the Colorado constitution.
Case Summary: Section 24-31-101 (1)(a), C.R.S., requires the attorney general to "appear for the state and prosecute and defend all actions and proceedings, civil and criminal, in which the state is a party or is interested when required to do so by the governor ...." This statute grants the governor general authority to direct the attorney general to prosecute certain cases.
In 1987, Governor Roy Romer issued Executive Order No. D 0017 87 (executive order). The executive order has not been repealed, rescinded, or modified and it requires the attorney general, through the Medicaid fraud control unit (MFCU) of the office of the attorney general, to investigate and prosecute Medicaid fraud and patient abuse cases.
In December 2017, the attorney general, through the MCFU, filed a felony charge involving neglect of an at-risk adult against Jasmine Salgado, an employee of an assisted living facility, in Jefferson County District Court. The Jefferson county district attorney, who had previously determined that there was insufficient evidence to prosecute Salgado, filed a notice asserting that the attorney general did not have legal authority or jurisdiction to file and prosecute the case because: (1) The executive order was unconstitutional; and (2) Legislation had superseded the executive order.
The district court rejected the argument that legislation had superseded the executive order, but concluded that the executive order was unconstitutional because "a former governor cannot require the current attorney general to act" and because "reliance on the executive order to confer authority in 2018 would be an unconstitutional exercise of legislative power by the executive branch."The attorney general appealed to the Colorado Court of Appeals and Salgado responded.
The Colorado Court of Appeals reversed the district court, holding that the executive order had not expired and that it is not an unconstitutional legislative act. Citing case law from other jurisdictions, the court of appeals noted that the "general rule" is that "executive orders validly issued pursuant to legislative or constitutional grants of authority remain in effect until revoked, modified, or superseded by later authority, and remain in effect beyond the expiration of the term of the governor who issued them." Applying the general rule, the court then determined that neither the language of section 24-31-101 (1)(a), C.R.S., nor any other legal authority support a requirement that an executive order delegating prosecutorial authority to the attorney general include a "temporal and spatial framework" or a "conclusion that executive orders expire along with the term of the issuing governor" or "after the lapse of some undefined period deemed sufficient by a court." Observing that the power of the governor "vests in the office, not the individual person inhabiting the office at any given time" and that an executive order thus "is the mandate of the office of the Governor, not the individual holding the title," the court concluded that "an executive order remains in effect until modified, rescinded, or superseded, and it does not expire merely because the issuing governor is no longer in office." Finally, the court held that because the executive order merely instructs an executive branch agency to prosecute certain offenses already established in law, it is not a legislative act constituting an unconstitutional exercise of legislative power by the executive branch in violation of the principle of separation of powers set forth in article III of the Colorado constitution. (For more information, contact Jason Gelender.)
People v. Taylor, Colorado Court of Appeals No. 17CA0280 (December 13, 2018)
Holding: Crim. P. 35(c)(3)(VII) supersedes prior case law, which states that a defendant can file a second Crim. P. 35(c) motion raising new postconviction claims if the defendant filed an initial Crim. P. 35(c) motion pro se.
Case Summary: This case involves a postconviction review of a defendant's case. Defendants can file for postconviction relief under Crim. P. 35. Crim. P. 35 sets the procedures, rules, and matters that can be heard in postconviction motion. Prior to 2004, if a defendant filed a 35(c) motion pro se, the defendant could file a second 35(c) motion raising new postconviction claims. In 2004, Crim. P. 35(c)(3)(VII) was adopted which requires a court to deny any claim that could have been presented in an appeal or postconviction proceeding previously brought, with five exceptions. The exceptions do not give a defendant the option to file a second 35(c) motion if the defendant filed the initial 35(c) motion pro se.
Defendant filed a pro se 35(c) motion raising seven claims. The postconviction court denied defendant's 35(c) motion. Defendant then filed a second pro se 35(c) motion, in which he renewed some of the claims from his first motion and raised new claims. The postconviction court held that the duplicative claims from defendant's initial 35(c) motion were barred as successive under Crim. P. 35(c)(3)(VI). However, the postconviction court did not consider the new claims as successive and denied them on the merits. The postconviction court's ruling was appealed. The court of appeals reversed. The court of appeals found that Crim. P. 35 (c)(3)(VII) supersedes prior case law holding that a defendant can raise new postconviction claims in a second 35(c) motion if the first 35(c) motion was filed pro se. (For more information, contact Shelby Ross.)
Cowen v. People, Colorado Supreme Court No. 16SC952 (December 10, 2018)
Holding: A trial court may not impose restitution for pecuniary losses caused by acquitted conduct.
Case Summary: The defendant wrote two checks from his company's bank account to a repair shop for maintenance and repair of his semitruck. The defendant's bank account contained insufficient funds to cover the checks. The defendant was charged with two counts of fraud by check - one count for each check. The defendant admitted that he knew there were insufficient funds to cover the checks when he wrote them. He asserted he did not intend to defraud the repair shop and that he intended to transfer money from another account and get a loan to cover the amounts of the checks. The jury convicted the defendant of the charge related to the first check, but acquitted him of the charge related to the second check. As part of the defendant's sentence, the trial court imposed restitution totaling the amount of both checks.
The defendant appealed the trial court's decision, arguing the restitution related to the second check is barred because he was acquitted on that charge. The court of appeals affirmed, holding that since the defendant was convicted of at least one charge, the trial court could impose restitution for the whole amount since the underlying conduct proximately caused the victim's loss. The supreme court reversed, stating that the plain meaning of section 18-1.3-603, C.R.S., requires a defendant be found guilty of a charge in order to impose restitution. Therefore, a trial court may not impose restitution for pecuniary losses caused by acquitted conduct. The supreme court also stated that it was specifically disapproving of any previous court of appeals opinions that are in conflict with the supreme court's opinion. (For more information, contact Shelby Ross.)
People v. Ray, Colorado Court of Appeals No. 16CA0444 (November 15, 2018)
Holding: The Judicial Department may collect interest payments on a monthly basis, rather than annually pursuant to the statutory direction to collect interest on restitution at the rate of twelve percent per annum.
Case Summary: In June 2015, the Judicial Department issued a press release announcing it would begin calculating and assessing 1% interest monthly on restitution balances to ensure consistent and accurate application of the law across the state after a 2014 State Audit report noted that most judicial districts had not assessed or collected any interest since the legislature had enacted the restitution statute. Defendant sued, claiming the Judicial Department did not have the statutory authority to charge monthly interest because the plain language of the statute said otherwise by using the term "per annum". The Court of Appeals held that, although the General Assembly did not define the term "per annum" and there was no legislative history to help ascertain when interest should be collected, others jurisdictions have interpreted similar language to be intended only as a measure of the rate with respect to time and does not require the payment of interest annually. Additionally, if the General Assembly intended to limit interest payments to an annual basis, it would have done so as it did in other statutes. (For more information, contact Shelby Ross.)
In re Heine, Colorado Court of Appeals No. 17CA1219 (November 1, 2018)
Holding: Retroactively assigning a child support obligation for the obligee when a voluntary change in parenting time occurs is affirmed, though the statute remains ambiguous. The district court did not make sufficient findings to support a determination of underemployment.
Case Summary: Mother and father of two children divorced in 2008. After multiple voluntary changes to parenting time, the district court determined that the mother owed retroactive child support, despite having been the obligee of the previous order. Section 14-10-122 (5) addresses changes in parenting time and the associated child support and was amended in 2013. But, those amendments did not resolve the ambiguity as to whether an obligee can retroactively be made an obligor. The court of appeals determined the legislative intent of the 2013 amendments was that an obligee can retroactively be made an obliger. This conclusion affirms the decision of the district court to retroactively grant the father child support from the mother. (For more information, contact Courtney McDonald.)
In re Rooks, Colorado Supreme Court No. 16SC906 (October 29, 2018)
Holding: In dissolution proceedings, the couple's cryogenically frozen pre-embryos constitute marital property of a special character. Supreme Court developed a framework to balance the parties' interests regarding the disposition of a divorcing couple's cryogenically preserved pre-embryos. The consent referred to in section 19-4-106 (7)(b) refers to the former spouse's consent to legal parenthood, not to their consent to placement of a pre-embryo.
Case Summary: A divorcing couple turned to the court to resolve a dispute over the disposition of their cryogenically preserved pre-embryos. The wife wished to keep the pre-embryos for future in vitro fertilization (IVF). The husband wanted no more genetic children using the pre-embryos and wished to have them discarded. The trial court ruled that the husband's right not to be forced to become a genetic parent outweighed the wife's desire to possibly have more children and awarded the pre-embryos to him. The court of appeals determined that the trial court erred in inferring contract terms that were not explicitly stated in the couple's contracts with the IVF facility to inform their ruling, but concluded that the trial court properly exercised its discretion in balancing the parties' interests and awarding the pre-embryos to the husband.
The supreme court reversed the judgment of the court of appeals, holding that both the trial court and the court of appeals considered inappropriate factors in attempting to balance the parties' interests, and remanded the case back to the trial court. In the absence of legislation regarding the disposition of cryogenically preserved pre-embryos upon the dissolution of marriage, the supreme court provided the following framework for balancing the parties' interests: courts should first look to any existing agreement between the parties regarding the disposition of their remaining pre-embryos in the event of divorce. In the absence of any such agreement, the court should balance the parties' interests by considering the following: (1) how the party who wishes to preserve the pre-embryos intends to use them; (2) the demonstrated physical ability or inability of the party seeking to use the pre-embryos for IVF to have biological children through other means; (3) the parties' original reasons for undertaking IVF; (4) the potential hardship for the party that wishes to avoid becoming a genetic parent, including emotional, financial, or logistical factors; (5) either party's demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in divorce proceedings; and (6) other factors relevant to the parties' specific situation. The court also held that the following considerations are inappropriate: (1) the ability of the party seeking to use the pre-embryos to afford a child, (2) standing alone, the number of a party's existing children, and (3) the party seeking to use the pre-embryos' ability to adopt or otherwise parent non-biological children. (For more information, contact Courtney McDonald.)
Lewis v. Taylor, Colorado Supreme Court No. 17SC241 (September 17, 2018)
Holding: The time value of money does not constitute reasonably equivalent value in an equity-type Ponzi scheme.
Case Summary: Taylor invested money in a Ponzi scheme run by Mueller. Their agreement did not provide any guaranteed rate of return or interest; rather, Taylor was to receive merely a portion of whatever profits might accrue. Taylor received several transfers of "profits" (in reality, merely subsequent investors' principal) from Mueller and later withdrew his entire principal, plus nearly half a million dollars profit. Then the enterprise was exposed as a scam. The trial court appointed Lewis as receiver, who sued to void the profit portion of the transfers to Taylor in order to return the money to investors who lost all of their principal.
Taylor argued that, under the "Colorado Uniform Fraudulent Transfer Act" (CUFTA), he had given "reasonably equivalent value" to Mueller in the form of the time-value of the invested money, and therefore the transfers to him were not voidable. The trial court held for the receiver, and the court of appeals reversed.
The supreme court reversed again, observing that this is an issue of first impression in Colorado. The supreme court found that under CUFTA, the time value of money does not constitute reasonably equivalent value in an equity-type Ponzi scheme. The court contrasted a Ponzi scheme in which an investor has been guaranteed a minimum rate of return or interest; in these situations, a transfer of "profits" or interest satisfies an antecedent debt, which makes the investment of principal a reasonably equivalent value. In these types of Ponzi schemes, a transfer of "profits" or interest is a dollar-for-dollar forgiveness of a contractual debt; such transfers are not voidable. But in an equity-type Ponzi scheme, the innocent investor who profits can point to nothing under CUFTA that ties the false profit to "value" that was provided to the debtor. Because Taylor did not provide any reasonably equivalent value, Mueller's transfers to him of "profits" were voidable. (For more information, contact Thomas Morris.)
People v. Ramirez, Colorado Court of Appeals No. 16CA1298 (September 6, 2018)
Holding: Semen does not constitute an "intimate part", defined in § 18-3-401 (2), for the purposes of establishing "sexual contact", defined in § 18-3-401 (4).
Case Summary: Defendant was convicted of sexual assault on a child (SAOC), sexual assault on a child by one in a position of trust (SAOC-POT), and indecent exposure, based on testimony that defendant ejaculated into the hands of his foster children and then required the children to swallow the semen. To commit the crimes of SAOC and SAOC-POT, the defendant must have "sexual contact" with a child, which requires the knowing touching of the actor's or victim's "intimate parts". The term "intimate parts" is defined as "the external genitalia or the perineum or the anus or the buttocks or the pubes or the breast of any person." The Court of Appeals, applying the plain language of the statute, vacated the defendant's convictions for SAOC and SAOC-POT and held that semen does not constitute an "intimate part" of the defendant's body. (For more information, contact Shelby Ross.)
Gessler v. Smith, Colorado Supreme Court No. 15SC462 (June 4, 2018)
Holding: The Colorado Supreme Court held that relevant jurisdictional language in article XXIX, section 5 of the state constitution (Amendment 41) authorizes the Independent Ethics Commission (IEC) "to hear complaints involving ethical standards of conduct relating to activities that could allow covered individuals, including elected officials, to improperly benefit financially from their public employment." The court also held that the public trust statute, section 24-18-103, C.R.S., establishes such an ethical standard of conduct and that the IEC therefore has jurisdiction over complaints alleging violations of the public trust. The IEC therefore had jurisdiction over a complaint alleging that former Secretary of State Scott Gessler (Gessler) had misappropriated state funds for personal or political uses.
Case Summary: Section 24-9-105 (1)(d), C.R.S., provides the Secretary of State a $5,000 discretionary account "for expenditure in pursuance of official business ...." Gessler used money in the discretionary account to travel to Florida to attend both an election law seminar hosted by the Republican National Lawyers Association and the Republican national convention. Colorado Ethics Watch filed a complaint with the IEC, alleging that Gessler had misappropriated state funds for personal or political uses and made false statements on expense reimbursement requests. After an investigation, the IEC set a hearing on the complaint and issued a prehearing order that listed potentially applicable standards of conduct or reporting requirements and reserved the right of the IEC to consider additional standards of conduct and reporting requirements based on the evidence presented and arguments made at the hearing. After the hearing, the IEC found that the use of the money in the discretionary account to travel to and attend the seminar and convention was primarily for partisan, and therefore personal, purposes and that it therefore (1) violated the ethical standard of conduct in section 24-9-105, C.R.S., that money in the account only be used for official business; and (2) was a breach of the public trust under section 24-18-103, C.R.S., which states that "the holding of public office or employment is a public trust" and requires a public officer or employee to "carry out his duties for the benefit of the people of the state."
Gessler sought judicial review, claiming that the IEC had exceeded its jurisdiction in considering the complaint, that its fact findings were arbitrary and capricious, and that it had violated his rights to due process, free speech, and assembly. The district court rejected the claims and affirmed the IEC's decision. Gessler then appealed, arguing that the IEC lacked jurisdiction over the complaint because section 5 of Amendment 41 should be construed to limit the IEC's jurisdiction to matters involving gifts, influence peddling, and standards of conduct and reporting requirements that expressly delegate enforcement to the IEC. The Court of Appeals affirmed the district court's decision, and the Colorado Supreme Court agreed to review that decision to determine whether: (1) the IEC had jurisdiction under the phrase "any other standards of conduct" in section 5 of article 41 to penalize any public employee for violating any Colorado law; (2) the phrase "other standards of conduct" is unconstitutionally vague; and (3) procedural due process requires pre-hearing notice to explain how laws are violated or may simply list laws and reserve the right to add charges after the hearing.
The Colorado Supreme Court first determined that "the overarching focus of [Amendment 41] is the regulation of activities that allowed covered individuals working in government, including elected officials, to gain improper personal financial benefit through their public employment." In light of this "overarching focus", the supreme court concluded that: (1) section 5 of Amendment 41, which authorizes the IEC to hear complaints under "any other standards of conduct...as provided by law," must be construed as granting the IEC jurisdiction over complaints of violations of "ethical standards of conduct that could allow covered individuals to improperly benefit financially from their public employment;" (2) "as provided by law" refers to laws already in existence; and (3) section 24-18-103, C.R.S, which establishes that the holding of office or employment is a public trust and that a public official shall carry out his duties for the benefit of the people of the state, establishes an ethical standard of conduct subject to the IEC's jurisdiction. Therefore, because the allegations against Gessler clearly implicated the public trust standard, the complaint fell within the IEC's jurisdiction, which is not limited to matters involving gifts, influence peddling, and standards of conduct and reporting requirements that expressly delegate enforcement to the IEC. Because the supreme court concluded that the IEC's jurisdiction over the case was proper and the allegations against the Secretary were within the scope of the IEC's jurisdiction, the court rejected Gessler's vagueness challenge. Finally, the supreme court rejected the Secretary's procedural due process claim because he failed to demonstrate that he suffered any prejudice as a result of the allegedly deficient notice. (For more information, contact Bob Lackner.)
Guarantee Trust Life Ins. Co. v. Estate of Casper, Colorado Supreme Court No. 17SC2 (May 29, 2018)
Holding: The statute that limits the survivability of a claim for punitive damages or penalties applies only after the death of the person against whom the punitive damages or penalties are claimed.
Case Summary: The plaintiff, Casper, sued his insurance company for the unreasonable delay or denial of insurance benefits. The jury awarded him compensatory and punitive damages. Casper died before the court entered a written and signed order, which also included an award of Casper's attorney fees and costs in the judgment. The insurance company argued that the attorney fees and costs could not be included in the computation of punitive damages and that the punitive damages claim did not survive Casper's death. The trial judge disagreed; the insurance company appealed, and the court of appeals affirmed. The insurance company sought review in the supreme court.
Previous case law, Kruse v. McKenna, 178 P.3d 1198 (Colo. 2008), held that the determination of whether a claim is assignable depends upon whether it survives the death of the person originally entitled to assert the claim. Kruse therefore intimated that the survival statute's limitation on penalties and punitive damages applies when either party dies. But the Supreme Court in Casper held that Kruse effectively ignored the plain meaning of survival statute's text, which states that punitive damages and penalties are only not available after the death of the person "against whom such punitive damages or penalties are claimed". Because it was the insurance company against whom the punitive damages were claimed but it was Casper who died, the survival statute did not apply, and to the extent that the Kruse decision failed to give meaning to the plain language of the survival statute, that decision was overruled. (For more information, contact Thomas Morris.)
Maralex Res., Inc. v. Colo. Oil and Gas Conservation Comm’n, Colorado Court of Appeals No. 17CA0051 (March 22, 2018)
Holding: The court of appeals upheld the district court's determination that the Colorado oil and gas conservation commission's (COGCC) rule authorizing COGCC staff to inspect oil and gas properties without a warrant met the administrative search exemption to the constitutional warrant requirement.
Case Summary: The COGCC obtained and executed a warrant to search two oil and gas locations and, two weeks later, reinspected the locations without a warrant. The inspections revealed a number of violations of the COGCC's rules, and the COGCC issued an order finding violation against the oil and gas operator. The oil and gas operator and the surface property owner sought judicial review in district court, asserting a facial challenge to the constitutionality of the COGCC's rule authorizing warrantless searches as a violation of the constitutional protections against unreasonable searches and seizures. The district court concluded that the inspection rule did not violate either the United States or the Colorado Constitution.
The court of appeals analyzed whether the COGCC's inspection rule met the administrative search exception to the constitutional warrant requirement. Applying a three-part test, the court of appeals determined that the COGCC's regulatory scheme provided a "constitutionally adequate substitute for a warrant" based on findings that: (1) Oil and gas development is a closely regulated industry; (2) a requirement that the COGCC obtain a warrant for every inspection performed would frustrate the state's substantial interest in regulating oil and gas development; and (3) the COGCC enforced its inspection rule with sufficient certainty and regularity that members of the regulated community had a reduced expectation of privacy in the commercial premises inspected. The court of appeals concluded that the COGCC's inspection rule met the administrative search exemption to the constitutional warrant requirement.
The court of appeals also reviewed the surface property owner's separate constitutional challenge to the COGCC's inspection rule on grounds that the rule as applied to the surface property owner violated the constitutional warrant requirement and constituted a governmental taking. The court of appeals rejected the as-applied challenge to the warrantless search because the surface property owner did not have a reasonable expectation of privacy in the property where the surface property owner granted the operator an unlimited easement to the surface estate. The court declined to address the surface property owner's takings claim because it was raised in a perfunctory manner. (For more information, contact Jennifer Berman.)