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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.

 

 

Wolven v. del Rosario Velez, Colorado Court of Appeals No. 22CA2120 (January 18, 2024)

Holding: A health-care provider lien agreement is excludable from discovery and at trial pursuant to section 38-27.5-103 (2), C.R.S., if the agreement meets the requirements of sections 38-27.5-104 (1) and 38-27.5-105 (4), C.R.S., at the time the lien agreement is created.

Case Summary: In this personal injury case arising from a vehicular accident, the trial court excluded evidence of the plaintiff's health-care provider lien agreement from trial pursuant to section 38-27.5-103 (2), C.R.S., over argument from the defendant that the lien did not meet the statutory requirements because it was amended to comply with the statute only five days before trial. The court of appeals held that a health-care provider lien agreement is excludable from discovery and at trial pursuant to section 38-27.5-103 (2), C.R.S., if the agreement meets the requirements of sections 38-27.5-104 (1) and 38-27.5-105 (4), C.R.S., at the time the lien agreement is created. Because the amended lien agreement replaced the original lien agreement and the amended lien agreement met the statutory requirements at the time it was created, the trial court did not err in excluding the lien agreement at issue in this case. After finding that the trial court properly excluded the amended lien agreement, the court of appeals remarked:

"We, however, share the trial court’s concerns surrounding the last-minute amendment of the QSN lien agreement ahead of trial. Because section 38-27.5-104 (1) and -105 (4) compliant health-care provider liens are required to be excluded from trial and discovery per section 38-27.5-103 (2), such last-minute changes could lead to gamesmanship. In affirming the trial court’s decision to exclude evidence of the amended QSN lien at trial, as required by statute, we in no way endorse plaintiffs changing lien agreements to comply with section 38-27.5-104 (1) on the eve of trial. However, only the legislature may provide more specific timing rules to determine whether a health-care provider lien that has been amended to conform with section 38-27.5-104(1) is admissible at trial."

 (For more information, contact Rebecca Bayetti.)

 

 

Bd. of Educ. v. Adams County Sch. Dist., Colorado Supreme Court No. 23SC61 (October 16, 2023)

Holding: The political subdivision doctrine, also known as the rule of Martin, is abandoned, and the Wimberly test is now the sole test for determining whether a party has standing.

Case Summary: Adams 14, a school district whose accreditation was removed by the state board after receiving a priority improvement plan rating, sued the state board to stop the removal of accreditation alleging violations of procedural due process and of the administrative procedures act. Adams 14 appealed the district court's granting the state board's motion to dismiss based on lack of standing under the political subdivision doctrine. The political subdivision doctrine, also known as the rule of Martin, has long precluded subordinate state agencies, political subdivisions, and officials raising claims challenging a superior government entity's decision from having standing unless there were statutory or constitutional provisions expressly authorizing the subordinate party to seek judicial review of the superior government entity's action. Under this doctrine, a school district, such as Adams 14, would lack standing to challenge the state board's actions. The Colorado Supreme Court reexamined the political subdivision doctrine and held that the Wimberly test, in particularly its "legally protected interest" prong, sufficiently addresses the important prudential concerns that the political subdivision doctrine aimed to address and abandoned the doctrine entirely. The court affirmed the district court's order granting the state board's motion to dismiss, albeit on different grounds.  (For more information, contact Jessica Herrera.)

 

 

Counterman v. Colo., U.S. Supreme Court No. 22–138 (June 27, 2023)

Holding: The State must prove in true-threats cases that the defendant had some subjective understanding of the threatening character of the statements, based on a showing no more demanding than recklessness.

Case Summary: From 2014 to 2016, petitioner Billy Counterman sent hundreds of Facebook messages to C.W., a local singer and musician. The two had never met and C.W. never responded to Counterman. C.W. tried to block Counterman but he created a new Facebook account each time and continued contacting C.W. Some of Counterman's messages contemplated violent harm befalling C.W., putting C.W. in a constant state of fear and affecting her day-to-day life. C.W. was afraid Counterman was following her and would hurt her. She had trouble sleeping and suffered from anxiety. C.W. stopped walking alone and attending social engagements. She also canceled music performances, causing her financial strain. Eventually, C.W. contacted law enforcement. In 2016, Counterman was arrested and charged with one count of stalking (credible threat), one count of stalking (serious emotional distress), and one count of harassment. The prosecution dismissed the charge for stalking (credible threat). 

Counterman moved to dismiss charges on First Amendment grounds, arguing that his messages were not "true threats", pursuant to section 18-3-602 (1)(c) and could not form the basis of a criminal prosecution. The trial court assessed the "true threat" standard using an objective, reasonable person standard. The trial court decided Counterman's statements rose to the level of a "true threat" and ruled the First Amendment posed no bar to prosecution. The court sent the case to a jury, which found Counterman guilty. Counterman was sentenced to four-and-a-half years in prison. The Colorado Court of Appeals affirmed the conviction. The Colorado Supreme Court denied review.

The United States Supreme Court granted certiorari because courts are divided on whether the First Amendment requires proof of a defendant's mindset in true-threat cases and, if so, what mens rea standard is sufficient. 

In a 7-2 decision, Justice Kagan authored the majority opinion. Justice Kagan stated that while the First Amendment protects freedom of speech, there are a few limited, "historic and traditional categories" of speech – incitement, defamation, and obscenity – that are not protected. "True threats" of violence, another historically unprotected category of speech, are "serious expression[s] conveying that a speaker means 'to commit an act of unlawful violence'". The United States Supreme Court has noted that the existence of a threat depends on the recipient's perception and not the speaker's intent. Even so, the First Amendment may still demand a subjective mental-state requirement that shields some true threats from liability.

The Court noted the reason the First Amendment may demand a subjective-mental state requirement relates to a chilling effect on speech. A prohibition on speech may chill or deter a speaker, resulting in "self-censorship of speech". A tool to prevent that outcome is to condition liability on the State's showing of a culpable mental state. The Court recognized that the requirement comes at a cost: shielding threatening speech because the State cannot prove what the defendant thought. The added element, however, reduces the prospect of chilling fully protected expression. The Court stated that this "strategic protection" is featured in case precedent concerning the most prominent categories of historically unprotected speech. The Court recognized that even though a culpable mental states lessens the chill of protected speech, it makes prosecution of proscribable and often dangerous communications harder. To balance the two effects, the Court determined the requisite mens rea.

The Court held that among the mens rea standards, recklessness offers the right path forward. Recklessness is morally culpable conduct involving a "deliberate decision to endanger another". The Court stated that in the threats context, a speaker is aware that others could regard the speaker's statements as threatening violence and delivers the statements anyway.

The Court held that in Counterman's case, the government used only an objective standard, without considering Counterman's understanding of his statements as threatening, in violation of the First Amendment. The Court vacated the judgment of the Colorado Court of Appeals and remanded the case for further proceedings consistent with the opinion. (For more information, contact Alana Rosen.)

 

 

Aurora Public Schools v. A.S., Colorado Supreme Court No. 22SC824 (June 20, 2023)

Holding: The Child Sexual Abuse Accountability Act (part 12 of article 20, of title 13, C.R.S.) is unconstitutionally retrospective to the extent that it permits a victim to bring a claim for sexual misconduct based on conduct that predates the enactment of the Act and for which previously available causes of action were time-barred.

Case Summary: In 2021, the General Assembly enacted the Senate Bill 21-088, the Child Sexual Abuse Accountability Act (CSAAA). The CSAAA creates a new statutory cause of action for a victim of sexual misconduct that occurred when the victim was a minor that is distinct from any common law cause of action that is or was available to the victim. For sexual misconduct that occurred between January 1, 1960, and January 1, 2022, the CSAAA creates a three-year window to bring a claim under the act.

Article II, section 11 of the Colorado Constitution prohibits a law that is "retrospective in its operation". Not all laws that are retroactive are unconstitutionally retrospective. A law is impermissibly retrospective "if it (1) impairs a vested right; or (2) creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past." The Court explained that when the statute of limitations has run and bars a claim, the right to plead that the claim is barred is a vested right that, under the retrospectivity clause, cannot be impaired by subsequent legislation. The Court further explained that the retrospectivity clause prohibits the legislature from accomplishing indirectly which it could not do directly. The Court clarified that there is no "public policy exception" to the ban on retrospective laws.

The Colorado Supreme Court held that "the CSAAA is unconstitutionally retrospective to the extent that it permits a victim to bring a claim for sexual misconduct based on conduct that predates the Act and for which previously available causes of action were time-barred." The CSAAA violates the retrospectivity clause because it creates a new obligation and disability with respect to past transactions and the three-year window to bring a new cause of action created in the CSAAA accomplishes the same ends as reviving a time-barred claim. 

The Court did not hold that the CSAAA is unconstitutional in its entirety, but only to the extent that it permits a victim to bring a claim for which previously available causes of action are time-barred. (For more information, contact Conrad Imel.)

 

 

In re People v. Smith, Colorado Supreme Court No. 23SA2 (June 20, 2023)

Holding: The term "capital offenses", as it appears in article II, section 19 (1)(a) of the Colorado Constitution, plainly and unambiguously refers to offenses for which the General Assembly has statutorily authorized the imposition of the death penalty.

Case Summary: Article II, section 19 of the Colorado Constitution (section 19) guarantees persons the right to bail, except in specified circumstances, including "[f]or capital offenses when proof or presumption is great[.]" In 2020, the General Assembly abolished the death penalty for offenses charged on or after July 1, 2020.

In this case, the defendant was charged in May 2022 with one count of first degree murder, and the defendant requested bail. The district court determined that earlier decisions of the Colorado Supreme Court required it to apply the "classification theory", which considers first degree murder a capital offense based on classification, not based on penalty. Because the defendant was charged with a capital offense, and "notwithstanding that [Colorado does not] have the death penalty", the district court denied bail. The defendant appealed.

The Colorado Supreme Court held that the term "capital offenses", as it appears in section 19 (1)(a), plainly and unambiguously refers to offenses for which the General Assembly has statutorily authorized the imposition of the death penalty. The Court reached its conclusion for two reasons. First, the plain language of section 19 (1)(a) indicates that the phrase "capital offenses" refers, as it always has, to offenses statutorily punishable by death. So if the death penalty is not statutorily authorized for an offense, then, by definition, the offense is not a capital offense. Second, the phrase "capital offenses" does not mean the same thing as "first degree murder." The framers used "murder" in other parts of section 19, which suggests that when they intended to say "murder" as opposed to "capital offenses", they knew how to do so. The Court also recognized that when the General Assembly wanted to include exceptions for offenses not subject to the death penalty, it did so by constitutional amendment and if "the legislature were free to create constitutional capital offenses simply by categorizing crimes not punishable by death as capital, then no such constitutional amendments would have been necessary."

The Court also found that the General Assembly’s decision to not amend statutory sections that refer to capital offenses when it abolished the death penalty did not reflect a legislative determination that the capital offenses exception would continue to apply to first degree murder. Instead, the statutes continue to be meaningful because offenses charged prior to July 1, 2020, remain subject to the death penalty. One justice authored a special concurrence "to flag for the legislature that it may wish to review any statutory provisions that reference 'capital offenses' or an iteration of that term." (For more information, contact Conrad Imel.)

 

 

Arvada Vill. Gardens, LP v. Garate, Colorado Supreme Court No. 23SA34 (May 15, 2023)

Holding: Federal law (CARES Act) requiring 30-day notice before evicting a tenant prevails over Colorado law requiring 10-day notice.

Case Summary: The plaintiff, a tenant with a Section 8 housing voucher, contested her eviction because it occurred 23 days after she received notice. The CARES Act provided for tenants to have 30 days after notice before an eviction. Colorado law states that tenants be given only 10 days notice before an eviction. The issue for the court was whether the expiration of other provisions of the CARES Act extended to the 30-day notice provision. The court held that because the CARES Act notice provision did not include an expiration date, unlike other provisions of the CARES Act, it was therefore still applicable. Because federal law trumps state law, the court held that the CARES Act notice provision prevails over Colorado law concerning timeline for notice of eviction and certain tenants must be given 30 days notice prior to eviction. The court also exercised jurisdiction under C.A.R. 2 due to the case being "of significant public importance." (For more information, contact Jessica Chapman.)

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