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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.



Guy, T v. Whitsitt, Colorado Court of Appeals No. 19CA0125 (June 11, 2020)

Holding: The open meetings law requirement of section 24-6-402 (4), C.R.S., that the particular matters to be discussed in an executive session of a local public body be "identified in as much detail as possible without compromising the purpose for which the executive session is authorized" is violated when a town council's public notice of an executive session references only the general statutory categories of legal advice and personnel matters without providing any information as to what legal advice or personnel matters will be discussed. To comply with the requirement, the notice must include at least the general subject on which legal advice is sought and identify the subject employee or employees for the personnel matters.

Case Summary: Section 24-6-402 (4), C.R.S., requires the particular matters to be discussed in an executive session of a local public body to be "identified in as much detail as possible without compromising the purpose for which the executive session is authorized." During four public meetings, the Basalt town council went into executive sessions to discuss matters related to property interests, receive legal advice on specific legal questions, determine negotiating positions, and address personnel matters. In its required public notices of the executive sessions (notices), the town council simply cited the appropriate statutory authority for the executive sessions without providing any information about what property interests, legal advice, negotiations, or personnel matters would be discussed.

Plaintiff applied to the district court for an order declaring that the notices failed to adequately identify the particular matters to be discussed as required by section 24-6-402 (4), C.R.S., and requiring disclosure of the records of the executive sessions. The district court granted plaintiff the requested relief with respect to the matters relating to property interests and negotiations but concluded that the notices were not required to include any specific information about the legal and personnel matters because of the nature of the attorney-client privilege and the subject employee's privacy interests. Plaintiff appealed.

The Colorado Court of Appeals reversed the district court and held that the notices had not provided adequate notice of the legal and personnel matters. With respect to the legal matters, the court of appeals concluded that it was possible, and therefore legally required, for the notices to identify at least the subject matter of the legal matters to be discussed because the attorney-client privilege does not ordinarily encompass mere identification of the subject matter of an attorney-client communication. With respect to the personnel matters, the court of appeals concluded that the notices were required to at least identify the subject employee because: (1) a public employee has a narrower expectation of privacy than other citizens; and (2) the town's argument that disclosure could violate the terms of its employment contract with the employee was not relevant because a town may not, by contract, evade its statutory obligations.

The case is of particular interest to the General Assembly because section 24-6-402 (3)(a), C.R.S., establishes for a state public body, as section 24-6-402 (4), C.R.S., does for a local public body, the requirement that the particular matters to be discussed in an executive session be "identified in as much detail as possible without compromising the purpose for which the executive session is authorized." (For more information, contact Jason Gelender.)



Amica Life Ins. Co. v. Wertz, Colorado Supreme Court No. 19SA143 (April 27, 2020)

Holding: The general assembly may not delegate to an interstate administrative agency the authority to adopt regulations that effectively override Colorado statutory law; such action amounts to the improper delegation of legislative authority.

Case Summary: This case required the Colorado supreme court to answer the following certified question from the Tenth Circuit Court of Appeals:  May the Colorado General Assembly delegate power to an interstate administrative commission to approve insurance policies sold in Colorado under a standard that differs from Colorado statute?

The certified question arose from a dispute in which plaintiff Amica Life Insurance Company (Amica) sought a declaratory judgment that it was not required to pay defendant Wertz benefits under a life insurance policy naming Wertz as the beneficiary. The policy, which was issued in compliance with a standard enacted by the Interstate Insurance Product Regulation Commission (the "Commission"), contained a two-year suicide exclusion, and the insured committed suicide more than one year but less than two years after Amica had issued the life insurance policy to him.

Wertz contended that the Amica policy’s two-year suicide exclusion was unenforceable because it conflicts with section 10-7-109, C.R.S., which provides that the suicide of a policyholder after the first year of any life insurance policy is not a defense against the payment of a policy. Wertz argued that the General Assembly could not properly delegate to the Commission the authority to enact a standard that effectively overrides this statute.

The court agreed with Wertz and declared that in the context of an interstate compact that has not been approved by Congress, the General Assembly may not delegate to an interstate administrative agency the authority to adopt regulations that effectively override Colorado law. Such action would amount to the improper delegation of legislative authority. (For more information, contact Richard Sweetman.)



Dill v. Rembrandt Group, Inc., Colorado Court of Appeals No. 18CA1716 (February 13, 2020)

Holding: In a case of first impression, the court of appeals holds that while piercing the corporate veil is possible between sister companies (horizontal piercing), a prerequisite is piercing the corporate veils between the sister companies and their common parents (vertical piercing).

Case Summary: The defendant, a corporation, owed money to the plaintiff, an individual; the debt was subordinated to a senior debt. Entities that share common shareholders, owners, or parents are sister companies. When a sister entity of the defendant, a limited liability company, acquired the senior debt, the plaintiff sued to collect his debt from the defendant, arguing, under principles of horizontal piercing of the corporate veil, that the transfer extinguished the senior debt because the defendant and the LLC were alter egos of each other.

The district court held for the plaintiff. The defendant appealed and the LLC intervened in the appeal. The court of appeals reversed.

To pierce the corporate veil in Colorado, a court must conduct a three-part inquiry. First, it must determine whether the corporate entity is the alter ego of the person or entity in issue. Second, upon finding that an entity is the alter ego of its owners, a court must determine whether the corporate fiction was used to perpetrate a fraud or defeat a rightful claim. Third, a court must consider whether disregarding the corporate form would achieve an equitable result. If it finds that the moving party has satisfied this three-part test by a preponderance of the evidence, then it may disregard the corporate identity and impute liability.

Some jurisdictions categorically bar piercing the corporate veil between entities that are not in vertical, or parent-subsidiary, relationships. Current Colorado caselaw does not extend piercing the corporate veil horizontally to sister companies. In jurisdictions where horizontal piercing is recognized, a plaintiff seeking to disregard the corporate formalities separating horizontal affiliates must first pierce the veils separating each entity from their shared corporate parent.

Reverse piercing occurs when a claimant seeks to hold a corporation liable for the obligations of an individual shareholder. Because our supreme court has not explicitly barred horizontal piercing to find that sister entities are alter egos, and it recognizes the doctrine of reverse veil piercing, the court of appeals rejected the defendants' contention that Colorado courts may never pierce the veil to reach sister entities.

However, the court of appeals agreed with the defendants that horizontal veil piercing between sister entities may occur only if (1) the entities share a parent or common owners in the ownership chain and (2) the veils separating each entity from the parent or common owners are first pierced to find that each sister entity is the alter ego of its owners. But here, the plaintiff failed to present any evidence to support the multiple piercings required to disregard the separate corporate identities of the sister entities. Therefore, the trial court erred in allowing horizontal piercing between the defendants. (For more information, contact Thomas Morris.)



Goodall v. Griswold, United States District Court for the District of Colorado No. 18-CV-00980-PAB-KMT (March 21, 2019)

Holding: The United States District Court for the District of Colorado held that § 1-4-905 (1), as that section existed before being amended by House Bill 19-1278, violated the First Amendment to the U.S. Constitution because the requirement that petition circulators be registered voters and residents of the state is not narrowly tailored to protect the integrity of the petition process.

Case Summary: In January 2018, U.S. Representative Douglas Lamborn announced his intent to seek the Republican party nomination in the primary election for Colorado's fifth congressional district. Pursuant to § 1-4-801, which allows for designation of party candidates by petition, various volunteer and professional circulators circulated nominating petitions on Representative Lamborn's behalf. Representative Lamborn was required to obtain 1,000 verified signatures from registered Republicans in the fifth congressional district to gain access to the primary election ballot.

Five voters from the congressional district filed a petition in the District Court for the City and County of Denver claiming that seven individuals who had circulated nominating petitions in support of Representative Lamborn's placement on the primary ballot did not live within the state, in violation of the residency requirement of § 1-4-905 (1), as that section existed before being amended by House Bill 19-1278 (former § 1-4-905 (1)).

The Denver district court concluded that only one of the circulators, Jeffrey Carter, failed to meet the residency requirements. The Colorado Supreme Court reversed, holding that another circulator, Ryan Tipple, also was not a state resident at the time that he collected signatures on behalf of Representative Lamborn. The supreme court invalidated the 269 signatures collected by Tipple, causing Representative Lamborn to have collected fewer than the 1,000 signatures needed to qualify him for the primary ballot. As a result, the supreme court prohibited the Secretary of State (Secretary) from certifying Representative Lamborn for the 2018 primary ballot.

Registered voters in the fifth congressional district, Tipple, Representative Lamborn, and Lamborn for Congress (plaintiffs) filed a lawsuit in the United States District Court for the District of Colorado on April 25, 2018. Plaintiffs challenged the constitutionality of the circulator residency and voter registration requirements of former § 1-4-905 (1).

Because the plaintiffs sought to participate in core political speech — petition signing and circulation — but the residency requirement in § 1-4-905 (1) operated to reduce the pool of available circulators and limit the quantum of speech in the election process, the district court determined that strict scrutiny is the appropriate standard to apply. Under this standard, when a state law or regulation imposes severe restrictions on First Amendment rights, the law or regulation must be narrowly drawn to advance a state interest of compelling importance.

The Secretary asserted that the state has a compelling interest in protecting the integrity and reliability of the state's election processes. The district court agreed, but concluded that former § 1-4-905 (1)'s residency requirement was not narrowly tailored to serve that interest.

The Secretary argued that the residency requirement helps to reduce circulator fraud, but that argument failed because the district court determined that courts have found that similar frequency of fraud by in-state and out-of-state circulators. The court also found that the concerns about circulator fraud are largely obviated by the process for verifying signatures on candidate petitions under § 1-4-908 (1.5)(a).

Finally, the Secretary argued that the residency requirement ensures that the state can subpoena a circulator and compel the circulator to travel to and attend a hearing within a short time frame if there is a contest over a petition's sufficiency. The district court rejected the argument because courts have routinely found that requiring circulators to sign affidavits or enter into agreements in which they provide their relevant contact information and agree to return in the event of a protest is a more narrowly tailored means of ensuring a state's ability to locate circulators than a residency requirement is.

On May 1, 2018, after holding an evidentiary hearing, the district court issued a preliminary injunction that prohibited the Secretary from enforcing the portion of former § 1-4-905 (1) that required petition circulators to be state residents. The district court also ordered the Secretary to certify Representative Lamborn to the 2018 Republican primary ballot for the fifth congressional district unless, for reasons other than the residency requirement, he did not qualify.

On July 30, 2018, the parties filed a joint motion seeking: (1) a declaration that the residency requirement of former § 1-4-905 (1) is unconstitutional under the First Amendment; (2) a declaration that the voter registration requirement of former § 1-4-905 (1) is unconstitutional under the First Amendment; and (3) a permanent injunction prohibiting the Secretary from enforcing those portions of former § 1-4-905 (1) that require petition circulators to be registered voters and residents of the state. On March 21, 2019, the district court issued an order granting the joint motion and permanently enjoing the Secretary "from enforcing those portions of [former] §1-4-905 (1) that require petition circulators to be registered voters and residents of the State of Colorado." Thereafter, the General Assembly enacted and the Governor approved House Bill 19-1278, which, among many other things, amended former § 1-4-905 (1) to remove the requirements that circulators be registered voters and Colorado residents. (For more information, contact Michele Brown.)



Howard v. People, Colorado Supreme Court No. 18SC326 (February 24, 2020)

Holding: The sentencing provisions in the juvenile transfer and direct file statutes do not create an equal protection issue as it relates to the possibility of a probation sentence.

Case Summary: A juvenile can be prosecuted in adult court in two ways: One, by a transfer hearing in juvenile court in which the district attorney petitions the juvenile court to transfer the case to adult court; and two, by direct file in which the district attorney files the case directly in adult court. The circumstances that allow a transfer hearing are limited and the circumstances that allow a direct file are even more limited.

A 16 year-old was convicted of first-degree assault, a crime of violence, and first-degree criminal trespass after his case was transferred from juvenile court to adult court. During the sentencing hearing, the juvenile argued that he was subject to a more severe penalty for a crime of violence conviction under the transfer statute than he would be if his were a direct-file case. The direct file statute states that a juvenile convicted of a crime of violence is not subject to the mandatory minimum provisions in section 18-1.3-406, but the transfer statute does not contain similar language. The juvenile claimed that a direct file juvenile could get probation but a transfer juvenile could not and thus his equal protection rights were violated. 

The Supreme Court found the difference between the transfer statute and direct file statute immaterial to the issue of whether probation is a possible sentence. The direct file provision does not permit a probation sentence for a direct file juvenile, it only excludes the juvenile from the mandatory minimum sentence that begins at least at the midpoint of the presumptive range. The court can sentence the juvenile below the midpoint of the presumptive range but still has to sentence the juvenile to incarceration. In a transfer case, the court must sentence the juvenile to incarceration starting at the midpoint of the presumptive range. So, a juvenile convicted of a crime of violence in adult court either as result of a transfer or direct file must be sentenced to incarceration and thus is not eligible for probation, so there is no equal protection violation.  

Although there was no equal protection violation related to a possible probation sentence, there is a difference in incarceration sentencing for a juvenile convicted of a crime of violence in adult court depending on whether the juvenile is transferred or direct filed. The Court noted that a transfer juvenile is subject to the mandatory minimum sentence of at least the midpoint of the presumptive range while a direct file juvenile can be sentenced below the midpoint of the presumptive range, which could create a equal protection issue. There was no equal protection violation in this juvenile's case because the sentencing court in the juvenile's case declined to apply the mandatory minimum provision to the juvenile's sentence. However, a court that applies the mandatory minimum to a transfer juvenile's crime of violence sentence could violate the juvenile's equal protection rights. (For more information, contact Michael Dohr.)



Stanczyk v. Poudre Sch. Dist. R-1, Colorado Court of Appeals No. 18CA2345 (February 13, 2020)

Holding: A school district may not restrict a teacher's ability to exercise the right of nonprobationary portability through the use a of a job application and form employment contract that require a teacher to relinquish the right to nonprobationary portability as a condition of employment.

Case Summary: A teacher with nonprobationary status through employment at one school district applied for a position at another school district. Section 22-63-203.5, C.R.S., allows a teacher with nonprobationary status to transfer that status to a new school district (nonprobationary portability). The online application form required the teacher to waive the statute granting nonprobationary portability by clicking on "I agree" before the application could be filed. Also, the second school district's employment agreement stated that the teacher voluntarily waived the teacher's right to assert nonprobationary portability status. After working for the school district for a year, the teacher was not retained and was not offered the procedural dismissal protections of a nonprobationary teacher. The second school district argued that section 22-63-203.5, C.R.S., violated the district's prerogative of local control to offer employment on the terms and conditions that it deems appropriate. The court of appeals held that the second district could not ignore section 22-63-203.5, C.R.S. The second district should have followed the statute or sought a waiver of the statute from the state board of education. (For more information, contact Jeremiah Barry.)



Korean New Life Methodist Church v. Korean Methodist Church of the Americas, Jin Hi Cha, Colorado Court of Appeals No. 18CA1149 (February 6, 2020)

Holding: Neutral principles of law, rather than the polity approach, should be used to resolve whether a local church submitted to the authority of its national denomination and thus whether the local church or the national denomination can control disposition of church property.

Case Summary: A local church incorporated as an independent, nonprofit corporation. Later, the board of directors passed a resolution stating that the church "shall join" a national denomination. The denomination's rules required church property to be registered with the denomination and prohibited property transfers without prior approval. But the local church never amended its articles of incorporation to submit to the control of the denomination or its rules and never registered its property with the denomination.

Eventually, the local church sold its original property and purchased new property without the denomination's permission or approval; the deeds conveying the property did not mention the denomination and the property was titled in the name of the local church. A faction of the local church's board filed a declaration judgment action to require the local church to submit to the denomination's authority, including regarding disposition of the property. 

Applicable United States Supreme Court case law construing the first amendment to the United States constitution indicates that courts should not attempt to resolve disputes concerning church doctrine (the so-called "polity" approach), including internal church governance. On the other hand, courts should apply so-called "neutral principles" of law to resolve non-doctrinal issues, even those that require a determination regarding whether a local church has submitted to the authority of a denomination. The issue before the trial court was whether the "polity" approach or the "neutral principles" of law should be applied to the question of whether a local church submitted to the authority of church denomination.

The Colorado Supreme Court, in Bishop & Diocese of Colo. v. Mote, 716 P.2d 85 (Colo. 1986), upheld application of the neutral principles approach in holding that a local church had submitted to a denomination, and thus that the denomination controlled the property in question. The Court of Appeals upheld the trial court's application of the neutral principle approach in finding that the local church never submitted to the denomination and thus continued to be able to control disposition of the local church's property. (For more information, contact Thomas Morris.)



People v. Viburg, Colorado Court of Appeals No. 17CA1056 (January 16, 2020)

Holding: Prior convictions are elements of felony DUI that must be proved beyond a reasonable doubt.

Case Summary: Police arrested Viburg for suspected DUI.  He was charged with felony DUI based on the allegation that he had three or more previous convictions for driving while ability impaired (DWAI) or DUI.

Before trial, Viburg moved for a ruling that his alleged prior convictions were elements of the offense that the prosecutor must prove to a jury beyond a reasonable doubt. The trial court denied the motion, concluding that the prosecutor needed only to prove the prior convictions to the judge by a preponderance of the evidence.

At trial, a jury convicted Viburg of DUI and careless driving. The judge found by a preponderance of the evidence that Viburg had three prior convictions for DWAI or DUI. Based on that finding, the court elevated Viburg’s misdemeanor DUI conviction to a class 4 felony.

The appeals court explicitly repudiates People v. Gwinn, 2018 COA 130, and People v. Quezada-Caro, 2019 COA 155. The court held that prior convictions are elements of felony DUI, and therefore, must be proved beyond a reasonable doubt. A felony is a much more serious matter than a misdemeanor, with more procedural requirements and more serious legal collateral consequences. Therefore, a statute that changes a misdemeanor to a felony does more than increase the penalty for a crime, so it does not fit within any exception to the constitutional requirement that each element of a crime must be proved beyond a reasonable doubt. And the statute requires prosecutors to plead the prior offenses, so the General Assembly intended the prior offense to be an element of felony DUI. (For more information, contact Jery Payne.)



Williams v. Elder, Colorado Court of Appeals No. 18CA1987 (November 14, 2019)

Holding: A plaintiff claiming age discrimination under the Colorado Anti-Discrimination Act (CADA) may not seek compensatory damages because section 24-34-405 (2) and (3)(g), C.R.S., limits the remedies for age discrimination to reinstatement, hiring, back pay, front pay, and other equitable relief only. Such a plaintiff may seek front pay because front pay is an equitable remedy and is not barred by the Colorado Governmental Immunity Act (CGIA). A plaintiff claiming retaliation under the CADA may seek both front pay and compensatory damages because both remedies are equitable remedies that are not barred by the CGIA and because section 24-32-405 (8)(g), C.R.S., exempts CADA claims for compensatory damages from the CGIA whether the claims are made against the state itself, a state agency, or a political subdivision of the state.

Case Summary: A former employee of the El Paso County Sheriff's Office (EPSO) filed CADA claims against EPSO for age discrimination and retaliation and sought front pay and compensatory damages for both claims. EPSO filed a motion to dismiss the claims on the grounds that compensatory damages and front pay are legal remedies that lie or could lie in tort and are barred by the CGIA. The district court denied the motion to dismiss, concluding that front pay is an equitable remedy not barred by the CGIA and that amendments made to the CADA in 2013 clarified that CADA claims for compensatory damages are not barred by the CGIA.

On appeal, a division of the Colorado Court of Appeals first held that the plain language of CADA, specifically section 24-34-405 (2) and (3)(g), C.R.S., limits the remedies for age discrimination to reinstatement, hiring, back pay, front pay, and other equitable relief only and that plaintiff therefore could seek front pay, but not compensatory damages, for his age discrimination claim. Turning to the plaintiff's retaliation claim, the court of appeals first acknowledged that another division of the court of appeals had, in Houchin v. Denver Health, 2019 COA 50M, held that the CGIA bars CADA claims for compensatory damages asserted against political subdvisions of the state because: (1) compensatory damages are not an equitable remedy and (2) Section 24-34-405 (8)(g), C.R.S. exempts a CADA claim for compensatory damages from the CGIA only when the claim is made against "the state", meaning the state of Colorado or an agency of the state of Colorado, and not when the claim is made against a political subdivision of the state. 

The court of appeals disagreed with the Houchin court, holding that the CGIA does not bar the plaintiff from seeking compensatory damages for retaliation because: (1) the compensatory damages allowed under the CADA do not relieve tort-like personal injuries, are merely incidental to the CADA's primary purpose of ending discrimination, and therefore do not lie in tort and are not subject to the CGIA and (2) the word "state", as used in section 24-34-405 (8)(g), C.R.S., refers to all state entities able to seek immunity under the CGIA, including political subdivisions of the state. The decision creates a conflict in the court of appeals as to whether a CADA claim for compensatory damages that is made against a political subdivision of the state is barred by the CGIA. (For more information, contact Megan Waples.)



People v. Hernandez, Colorado Court of Appeals No. 17CA0775 (July 25, 2019)

Holding: A defendant has a right to be present at a restitution hearing.

Case Summary: Defendant was convicted of first degree assault for stabbing the victim. The trial court imposed a sentence to the custody of the Department of Corrections and gave the prosecutor sixty days to file a notice of restitution. The prosecutor timely sought restitution to compensate the Crime Victim Compensation Fund. Defense counsel appeared at the restitution hearing without defendant. The hearing went forward and the trial court awarded the amount requested. Defendant appealed the decision arguing the trial court erred by proceeding with the restitution hearing in his absence. The Court of Appeals reasoned that Colorado Rule of Criminal Procedure 43(a) and both the United States and Colorado Constitutions guarentee the right of a criminal defendant to be present at all critical stages of the proceeding. Sentencing is considered a critical stage of a criminal proceeding and since restitution is a part of the sentencing process, the Court of Appeals held the defendant had a right to be present at the restitution hearing. The Court vacated the restitution order and remanded the case. (For more information, contact Shelby Ross.)



People v. Mazzarelli, Colorado Supreme Court No. 16SC546 (July 1, 2019)

Holding: The statute and rules governing plea agreements require the trial court to exercise its independent judgment in deciding whether to accept or reject sentence concessions in the agreement and allow the defendant, but not the prosecution, to withdraw from a plea agreement when the trial court rejects a sentence concession after the defendant has pled guilty.

Case Summary: The People (prosecution) charged defendant Christopher Mazzarelli with knowing or reckless child abuse resulting in serious bodily injury to his infant son, a class 3 felony. Defendant and the prosecution agreed to a plea agreement under which defendant pled guilty to criminally negligent child abuse resulting in serious bodily injury, a class 4 felony, and the prosecution agreed to dismiss the original charge. The plea agreement also included a sentence stipulation that the defendant would receive a prison sentence within the extraordinary risk crime range of 2 to 8 years.

The trial court accepted the defendant's guilty plea but rejected the stipulated 2 to 8 year prison sentence and instead sentenced defendant to supervised probation. The trial court also rejected the prosecution's request to withdraw from the plea agreement. The prosecution appealed, arguing that it should have been allowed to withdraw from the plea agreement because the trial court had substantially modified the terms of the agreement, and the Colorado Court of Appeals (court of appeals) affirmed. The Colorado Supreme Court (supreme court) granted certiorari to determine whether "the court of appeals erred in upholding the trial court's actions as a matter of law and finding that it could sentence the defendant outside the stipulated sentencing range contained in a plea agreement and accepted by all parties."

The supreme court vacated the court of appeals' decision in its entirety because it did not agree with its reasoning, but, like the court of appeals, upheld the trial court's decision not to allow the prosecution to withdraw from the plea agreement. The supreme court held that "the statute and rules [governing plea agreements in Colorado] (1) require the trial court to exercise its independent judgment in deciding whether to accept or reject sentence concessions in a plea agreement, and (2) allow the defendant, but not the People, to withdraw from a plea agreement when the trial court rejects a sentence concession after the defendant has pled guilty." In support of its holding, the supreme court quoted both language in section 16-7-302 (3), C.R.S., and Colorado Rule of Criminal Procedure 11 (f)(5) stating that [n]otwithstanding the reaching of a plea agreement between the district attorney and defense counsel or defendant, the judge in every case should exercise an independent judgment in deciding whether to grant charge and sentence concessions[,]" and language in Colorado Rule of Criminal Procedure 32 (d) (rule 32 (d)) stating that when a court rejects a sentence concession it "shall so advise the defendant and the district attorney and then call upon the defendant to either affirm or withdraw the plea of guilty." The supreme court clarified that in the context of plea agreements, "sentence stipulations," "sentence agreements," "sentence concessions," and other similar terms are "nothing more than sentence recommendations that the trial court is free to accept or reject, including after the defendant's guilty plea," and that the statute and rules prohibit the prosecution and a defendant from entering into a plea agreement limiting this sentencing discretion of the trial court.

The supreme court also rejected the argument that the doctrine of separation of powers, under which an executive branch prosecutor has sole discretion to make criminal charging decisions, prohibits a trial court from accepting a guilty plea, but not the punishment stipulated in the plea agreement, without allowing the prosecution an opportunity to withdraw from the agreement. The supreme court observed that defendant pled guilty to an offense chosen as part of the prosecution's charging decision to offer a plea agreement and that the court then made a separate sentencing decision that was within its judicial purview under the applicable statute and rules. Finally, the supreme court acknowledged that its holding is inconsistent with the current practice in many trial courts and indicated that if the applicable statute and rules were amended in the future, it would apply them as amended. (For more information, contact Michael Dohr.)



Jones v. Williams, Colorado Supreme Court No. 18SA189 (June 24, 2019)

Holding: The warrant requirement of section 13-45-101 (1), C.R.S., is not a jurisdictional requirement requiring summary dismissal for noncompliance.

Case Summary: Petitioner Richard Jones filed a habeas corpus petition in district court challenging the department of corrections' (DOC) calculation of his parole eligibility date. Petitioner argued that the DOC erred in calculating the date using his 2008 conviction and that the DOC instead should use his 1991 convictions to calculate his parole eligibility date. The petitioner claimed that if the DOC used his 1991 convictions to calculated his parole eligibility date, then he was already being held unlawfully past his parole eligibility date. The petitioner included the warrant for his 2008 conviction with the petition but not the warrant for the 1991 convictions. Section 13-45-101 (1), C.R.S., requires that a habeas corpus petition include the applicable warrants.

Four previous Colorado Supreme Court cases held that the warrant requirement is jurisdictional. Butler v. Zavaras, 924 P.2d 1060 (Colo. 1996), Evans v. District Court, 572 P.2d 811(Colo. 1977), Garrett v. Knight, 480 P.2d 569 (Colo. 1971), and McNamara v. People, 410 P.2d 517 (Colo. 1966). Based on those decisions, the trial court dismissed the petitioner's habeas corpus petition.

The Colorado Supreme Court reversed the trial court and overruled the previous supreme court decisions that had held the warrant requirement to be jurisdictional. The supreme court determined that the language of section 13-45-101 (1), C.R.S., does not limit a court's jurisdiction to hear habeas corpus cases and that the warrant requirement is instead simply a statutory procedural requirement. (For more information, contact Michael Dohr.)



In re Ballot Title #3, Colorado Supreme Court No. 19SA25 (June 17, 2019)

Holding: A proposed one-sentence initiative to repeal the Taxpayer's Bill of Rights, article X, section 20 of the Colorado constitution (TABOR) in its entirety has a single subject.

Case Summary: Article V, section 1 (5.5) of the Colorado constitution requires every proposed initiative to have a single subject, which must be clearly expressed in its title. Before setting a title for a proposed initiative, the title board must first find that the proposed initiative has a single subject.

Initiative proponents proposed an initiative, 2019-20 #3 (initiative #3), to repeal the Taxpayer's Bill of Rights (TABOR) in its entirety. The full text of the initiative simply states: "In the constitution of the state of Colorado, repeal section 20 of article X". The title board concluded that the initiative does not have a single subject and that it therefore lacked jurisdiction to set a title because prior Colorado supreme court cases had indicated that TABOR includes multiple subjects and that a proposed initiative to repeal a constitutional provision that includes multiple subjects itself includes multiple subjects. Proponents filed a motion for rehearing, but the title board denied the motion and again declined to set a title. Proponents appealed.

The Colorado supreme court reversed the title board, holding that initiative #3 contains a single subject, the repeal of TABOR. The supreme court first noted that the single subject requirement serves the functions of (1) forbidding the treatment of incongruous subject in the same measure, especially the practice of putting together in one measure subjects having no necessary or proper connection, for the purpose of enlisting in support of the measure the advocates of each measure, and thus securing the enactment of measures that could not be carried upon their own individual merits (i.e., preventing "logrolling") and (2) preventing surreptitious measures and apprising the people of the subject of each measure by the title, that is, to prevent surprise and fraud from being practiced upon voters. The court then concluded that the initiative satisfies both functions and therefore has a single subject because it "effectuates one and only one general objective or purpose, namely the repeal of TABOR ... and could not be written more simply or directly. It essentially asks voters a single question: should TABOR be repealed in full?"

In support of its decision, the Colorado supreme court acknowledged that it had stated in multiple prior cases that if a constitutional provision contains multiple subjects, then a proposed initiative to repeal the entire provision also contains multiple subjects. But the court characterized those statements as nonbinding dicta that lacked underlying analysis. The court specifically distinguished In re Proposed Initiative 1996-4, 916 P.2d 528 (Colo. 1996), a case in which the court had concluded that a proposed initiative that would have repealed and reenacted certain individual provisions of TABOR had multiple subjects, from the total repeal of TABOR, without reenactment of any provisions, proposed by initiative #3. The court then declined to adopt the "dicta" for the following reasons: (1) "a one-sentence initiative asking voters to decide if a constitutional provision should be repealed meets all of the requirements of a single subject;" (2) there is "no basis for creating ... a unique single subject rule for efforts to repeal constitutional provisions;" and (3) "concluding that an initiative contains multiple subjects merely because the targeted provision contained multiple subjects effectively makes the original provision impervious to challenge." Having declined to adopt the "dicta", the court concluded that initiative #3 satisfied the single subject requirement.

In a dissenting opinion, two justices rejected the majority's characterization as "dicta" of prior Colorado Supreme court statements that TABOR includes multiple subjects and that an initiative proposing to repeal a constitutional provision that includes multiple subjects itself includes multiple subjects. The dissenters concluded that initiative #3 includes multiple subjects for the following reasons: (1) the single subject requirement applies to all initiatives, including those that only repeal existing constitutional provisions; (2) TABOR includes multiple subjects; (3) the constitutional single subject requirement for initiatives was adopted in 1994 in response to the adoption of TABOR for the purpose of preventing multiple-subject initiatives like TABOR from being placed on the ballot in the future, and allowing initiative #3 to appear on the ballot is thus "directly contrary to the intent of the single subject requirement;" and (4) case law has consistently held that a proposed initiative to repeal a multiple-subject constitutional provision violates the single subject requirement, and the majority had no justification to overrule that case law. (For more information, contact Jason Gelender.)