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.
Rojas v. People, Colorado Supreme Court No. 20SC399 (February 22, 2022)
Holding: Criminal conviction was reversed because of admission of evidence of prior criminal act under the common law doctrine of res gestae. The court found that res gestae no longer applies in Colorado.
Case Summary: Defendant was convicted of two counts of theft based upon her improper receipt of food stamps benefits. At trial, the prosecution, over objection, submitted evidence of her application for benefits after the time period in which she received the improper benefits. The trial court and court of appeals upheld the submission of such evidence under the common law doctrine of res gestae. The supreme court reversed and held that the doctrine of res gestae is abolished in criminal cases and that evidence of other wrong doing should be analyzed under Rule 404 of the Colorado Rules of Evidence. (For more information, contact Jeremiah Barry.)
People v. Rau, Colorado Supreme Court No. 20SC583 (January 10, 2022)
Holding: For purposes of section 18-1-704.5, a "dwelling" includes the shared basement in an apartment building.
Case Summary: The defendant lived in an old house that was converted into apartments. The basement of the building contained the controls for the water and heat supply and had areas for storage. Each tenant had keyed access to the basement. One morning the defendant's girlfriend noticed that the door to basement was open. The defendant armed himself with a gun and went down to investigate. Defendant found a large man asleep and surrounded by drug paraphernalia. The defendant woke the man up and told him he needed to leave. The man got up and became aggressive, yelling and throwing things around. The defendant told the man he had a gun, but the man's behavior did not change. Finally, the defendant told the man he was going to count to 5 and if the man did not leave when he finished counting he would shoot. The man did not leave, and the defendant, fearing that the man was going to charge at him, shot and killed the man. A grand jury indicted the defendant for second degree murder. The defendant moved to dismiss the charge arguing that he was immune to prosecution pursuant to section 18-1-704.5, C.R.S., commonly referred to as the "Make My Day" law. Following an evidentiary hearing, the trial court dismissed the charge against him.
The people appealed arguing that the basement was not part of the defendant's "dwelling", and thus section 18-1-704.5, C.R.S., did not provide immunity to the defendant. The court of appeals affirmed the district court's dismissal of the charge. The supreme court took up the case to decide whether the basement was part of the defendant's dwelling.
The supreme court determined that "dwelling" includes an apartment building's shared basement that is accessible to all tenants. The basement was part of the building that the defendant used for habitation. Some of the usual uses of the basement, like the control of water and heat and storage of personal items, were incidental to and part of the defendant's use of the residence. In making its ruling, the supreme court overruled a court of appeals decision that held the common areas of an apartment building used by other tenants and guests was not part of a defendant's dwelling for purposes of section 18-1-704.5, C.R.S.
The supreme court rejected the people's arguments that its decision would lead to absurd results because immunity "would extend to every nook and cranny in apartment buildings". The supreme court acknowledged that the shared living arrangements that may not have been prevalent when section 18-1-704.5, C.R.S., was adopted may present some problems today in applying this section, but it is up to the legislature to contemporize section 18-1-704.5, C.R.S., if changes are necessary. (For more information, contact Michael Dohr.)
Rudnicki v. Bianco, Colorado Supreme Court No. 19SC631 (December 13, 2021)
Holding: In cases involving an unemancipated minor child, either the child or the child's parents may recover the child’s pre-majority medical expenses, but double recovery is not permitted.
Case Summary: A child suffered serious injuries at birth, in 2005, when a doctor negligently performed the delivery. The child's parents, in both their individual capacities and acting on behalf of the child, brought a claim in 2014 against the doctor and hospital where the child was born. The district court dismissed the parents' claims because the applicable two-year statute of limitations barred their claims. The case went forward with the child as the only plaintiff. A jury found the doctor liable for the child's injuries and awarded the plaintiff-child damages, including past medical expenses and future medical expenses to cover costs from the judgment date until the child is 22 years old.
Under Colorado common law, only an injured child's parents can recover an unemancipated child's pre-majority medical expenses. In this case, because the parents' claim for medical expenses was dismissed as time-barred, the trial court vacated the award for past medical expenses and the portion of the future medical expenses awarded for the period before child reaches age 18. The court of appeals affirmed the trial court's decision vacating the pre-majority medical damages award.
The Colorado Supreme Court reversed. In doing so, the court abandoned the common law rule that allows only parents to recover their unemancipated minor child’s pre-majority medical expenses, expressly overruled any Colorado appellate court decisions that followed the common law rule, and held that in cases involving an unemancipated minor child, either the child or the child's parents may recover the child’s pre-majority medical expenses, but double recovery is not permitted.
The court recognized that it "will depart from [ ] existing law only if [it is] clearly convinced that (1) the rule was originally erroneous or is no longer sound because of changing conditions and (2) more good than harm will come from departing from precedent."
The court found that the common law rule is no longer sound because of changing conditions. The modern common law rule is based on the theory that it allows the party who actually suffered the damages (namely, the parents, who have a legal obligation to support their children) to recover the loss caused by another person and prevents double recoveries. The court explained that the first rationale "ignores the advent" of private and public health insurance that relieve parents of the obligation to pay a child's medical expenses out of pocket and that a rule that treats parents as the sole interested parties with regard to a child's medical expenses is "no longer in sync with the realities of the health care economy." The court also found that the common law rule is no more "adept at shielding a defendant from double recovery" than a rule expressly bars double recoveries."
To determine whether more good than harm will come from departing from precedent, the court considered the public policy rationales for abandoning the common law rule. The court found abandoning the rule would allow recovery from the responsible party for unforeseen and presently unforeseeable medical expenditures, would not result in parents denying children medical treatment, and would not result in any unmanageable evidentiary issues that would arise with delayed claims brought by the child. (For more information, contact Conrad Imel.)
People v. Johnson, Colorado Supreme Court No. 20SC790 (December 13, 2021)
Holding: The common law doctrine of abatement ab initio applies to a restitution order imposed on a criminal defendant who dies during the pendency of his direct appeal and thus the order is vacated.
Case Summary: The defendant was convicted of multiple counts of securities fraud and theft and adjudicated a habitual criminal. The district court sentenced him to a total of forty-eight years in prison and ordered him to pay costs, fees, and restitution. The defendant appealed, but the defendant died before the appeal could be resolved.
The common law doctrine of abatement ab initio establishes that when a defendant dies while his conviction is on appeal, all criminal proceedings against him are vacated. The court of appeals division in this case held that the doctrine of abatement ab initio extinguished defendant's restitution order entered as part of his criminal sentence. In doing so, the division disagreed with a contrary holding of another division of the court of appeals. In People v. Daly, 313 P.3d 571 (Colo. App. 2011), the court of appeals held that in this situation, a restitution order should not be abated because it is a civil judgment that survives the defendant's death.
The Colorado Supreme Court upheld the court of appeals in this case and overruled the division's decision in Daly. The Court held that a final conviction is a requirement for maintaining an order of restitution and recognized that a conviction becomes final only after the court of appeals has issued a mandate, which does not occur if the defendant dies while the direct appeal is pending. Without a final conviction, the defendant may not be deemed an offender for the purpose of maintaining a restitution order. The Court also found that the General Assembly has not explicitly or by clear implication abrogated the common law doctrine of abatement ab initio. (For more information, contact Conrad Imel.)
In re Colo. Indep. Legislative Redistricting Comm'n, Colorado Supreme Court No. 21SA305 (November 15, 2021)
Holding: The court held that the Colorado Independent Legislative Redistricting Commission did not abuse its discretion in applying the criteria set forth in article V, section 48.1 of the Colorado Constitution in adopting final legislative redistricting plans for the Colorado Senate and the Colorado House of Representatives. Accordingly, the Court approved the plans for the Colorado Senate and the Colorado House of Representatives and ordered the Colorado Independent Legislative Redistricting Commission to file those plans with the Colorado Secretary of State.
Case Summary: In this original proceeding, the Colorado Supreme Court reviewed the final legislative redistricting plans submitted by the Colorado Independent Legislative Redistricting Commission. The Court reviewed the objections filed against the final legislative redistricting plans and the criteria set forth in article V, section 48.1 of the Colorado Constitution to determine if the Colorado Independent Legislative Redistricting Commission abused its discretion in following these criteria and adopting final legislative redistricting plans. The Court determined that the Colorado Independent Legislative Redistricting Commission did not abuse its discretion in adopting the final legislative redistricting plans. (For more information, contact Pierce Lively.)
Rocky Mtn. Gun Owners v. Polis, Colorado Court of Appeals No. 20CA0997 (November 10, 2021)
Holding: 1. Whether the House of Representatives properly dispensed with the requirement of article V, section 22 of the Colorado constitution that a bill be read at length absent unanimous consent to dispensing with reading at length is not a nonjusticiable political question. 2. Representatives who had requested to have a bill read at length and had their requests denied had standing to assert a violation of the reading at length requirement.
Case Summary: Article V, section 22 of the Colorado constitution imposes a requirement, commonly known as the reading requirement, that every bill be read "at length on two different days in each house;" except that "any reading at length may be dispensed with upon unanimous consent of the members present." On second reading on House Bill 19-1177 (HB 1177), which included "red flag" provisions that allow confiscation of an individual's firearms under specified circumstances, two state representatives' separate requests that the bill be read at length were denied. Thereafter, the General Assembly enacted HB 1177.
Rocky Mountain Gun Owners, the representatives who had requested that HB 1177 be read at length, and one other representative challenged the enactment of HB 1177 as unconstitutional due to the denial of the requests that the bill be read at length. The Denver District Court granted the Governor's motion to dismiss the complaint on the ground that the case presented a nonjusticiable political question and that the court therefore lacked subject matter jurisdiction. The district court also held, albeit unnecessarily given its finding of nonjusticiability, that none of the plaintiffs had individual or taxpayer standing but that the representatives who had requested that HB 1177 be read at length had "legislative standing. Plaintiffs appealed.
The Colorado Court of Appeals first held that the case did not present a nonjusticiable political question. In doing so, it relied on Markwell v. Cooke, 2021 CO 17, a case decided after the district court's dismissal of the case at issue in which the Colorado Supreme Court had unanimously held that a constitutional challenge to the enactment of another bill based on the reading requirement did not present a nonjusticiable political question. The court of appeals then held that: (1) none of the plaintiffs had taxpayer standing because there was no clear nexus between their status as taxpayers and the alleged violation of the reading requirement; and (2) the representatives who had requested that HB 1177 be read at length had standing because the procedural right to have a bill read at length is personal to each individual legislator and the denial of that procedural right is itself an injury in fact sufficient to confer standing even if the reading would not necessarily have led to any changes to the contents of HB 1177 or prevented its enactment. Accordingly, the court of appeals remanded the case back to the Denver District Court for further proceedings. (For more information, contact Jason Gelender.)
People v. Taylor, Colorado Court of Appeals No. 18CA1410 (November 4, 2021)
Holding: Section 18-1-406 (7), C.R.S., permitting a court to allow the remaining 11 jurors to return the jury's verdict in a felony case if the court excuses a juror for just cause after the jury has retired to consider its verdict, is unconstitutional.
Case Summary: The defendant was charged with felony possession of a controlled substance. During its deliberations following the trial, the jury informed the court that it had an 11-1 vote to convict the defendant, but would not be able to reach a unanimous guilty verdict because one juror who believed that the defendant was guilty would not vote to convict due to that juror's disagreement with Colorado's drug laws. Subsection 18-1-406 (7) permits a court to allow the remaining 11 jurors to return the jury's verdict in a felony case if the court excuses a juror for just cause after the jury starts deliberations. Relying on that section, the trial court dismissed the dissenting juror for "just cause" because (1) the juror had a pre-existing belief with respect to his disagreement with Colorado's drug laws and did not express that disagreement during the jury selection process and (2) after taking an oath indicating that he would follow the law and the court's instructions, the juror chose not to do so. After the juror was dismissed, the remaining 11 jurors returned a verdict finding the defendant guilty.
In 2005, the Colorado Supreme Court, in People v. Rodriguez, 112 P.3d 693 (Colo. 2005), interpreted Article II, Sec. 23 of the Colorado Constitution as guaranteeing a right to a 12 person jury in felony cases. In the present case, the Court of Appeals court found that the right to a 12 person jury is effectuated only when 12 jurors complete the trial and deliberate to a conclusion in the case. Thus, the court held that section 18-1-406 (7), C.R.S., is unconstitutional because it conflicts with a defendant's state constitutional right to have a felony case decided by a jury of 12. (For more information, contact Conrad Imel.)
In re Colo. Indep. Cong. Redistricting, Colorado Supreme Court No. 21SA208 (November 1, 2021)
Holding: The Colorado Supreme Court held that the Colorado Independent Congressional Redistricting Commission (Commission) did not abuse its discretion in applying the criteria set forth in article V, section 44.3 of the Colorado Constitution to adopt a final congressional redistricting plan. The court also held that article V, section 44.3 (4)(b) of the Colorado constitution, which prohibits the commission from adopting a plan that dilutes the impact of a racial or language minority group's electoral influence, does no more than incorporate into state law existing protections against minority vote dilution provided by section 2 of the Voting Rights Act, 52 U.S.C. section 10301, as expressed in U.S. Supreme Court case law at the time article V section 44.3 (4)(b) was enacted. Accordingly, the court approved the plan for Colorado's congressional districts and ordered the Commission to file the plan with the Colorado Secretary of State.
Case Summary: In this original proceeding, the Colorado Supreme Court reviewed the final congressional redistricting plan submitted by the Colorado Independent Congressional Redistricting Commission (Commission). The court reviewed the objections filed against the final congressional redistricting plan and the criteria set forth in article V, section 44.3 of the Colorado Constitution to determine whether the Commission abused its discretion in following these criteria and adopting the final congressional redistricting plan and determined that the Commission did not abuse its discretion. (For more information, contact Nicole Myers.)
In Interest of C.C-S., Colorado Court of Appeals No. 19CA0913 (October 21, 2021)
Holding: A search and seizure of a student by school officials may be reasonable in the context of the Fourth Amendment if the search and seizure is justified at its inception and conducted in a manner reasonably related in scope to the circumstances that justified the interference in the first place. A stale and uncorroborated Safe2Tell tip, however, does not justify the unlawful detention of a student. A court may not rely on admissions made during an unlawful detention of a student and may not uphold the search of a student's backpack if the detention is not supported by reasonable suspicion.
The exclusionary rule applies in the context of school searches and extends to the actions of school officials to deter Fourth Amendment violations.
Case Summary: A school security officer employed by Denver Public Schools received a report through the statewide Safe2Tell program that a student at a DPS high school had been seen in a Snapchat video shooting a firearm out of a car window. By the time the tip was reported, it had been about one month since the Snapchat video was shot. Videos posted on Snapchat automatically disappear so school officials did not see the video. The dean of the school said the defendant, C.C-S, had a history of "bringing things to school that he shouldn't, such as drugs and things like that."
The school security officer decided to search C.C-S based on the tip, the dean's comment, and the security officer's policy of searching every student and the student's backpack when he received a Safe2Tell report that a student had either drugs or weapons. Once C.C-S arrived to school, the school security officer and a campus security officer took C.C-S to an office and closed the door to question him. He refused to consent to a search and attempted to leave the office. The officers would not allow him to leave and asked if he was refusing a search because he had drugs in his backpack. C.C-S ultimately confessed to having drugs and handed his backpack to the officers. The officers found a plastic bag of marijuana and marijuana paraphernalia, including a scale, plastic bags, and cigar wraps.
Based on this evidence, C.C-S was charged with underage possession of marijuana and possession with intent to distribute marijuana in a delinquency petition. C.C-S moved to suppress the marijuana and paraphernalia on the grounds that it was discovered during an unconstitutional detention of his person and search and seizure of his backpack. Following a bench trial, C.C-S was found guilty of both marijuana charges and adjudicated a delinquent. (For more information, contact Alana Rosen.)
In re Estate of Gallegos, Colorado Court of Appeals No. 20CA0721 (August 26, 2021)
Holding: For the purpose of intestate succession involving an adopted child and the child's genetic parent, section 15-11-119 (3) prevails over the conflicting provisions in section 19-3-608 (1) because section 15-11-119 (3) is more specific and more recent.
Case Summary: Decedent father had two biological daughters, one of whom was adopted by her maternal grandparents in 1991 (younger daughter) and another who had no relationship with her father (older daughter). Decedent died in 2016 without a spouse or a will, so under Colorado law his children are entitled to inherent his estate in equal shares. Older daughter and a family partnership organization challenged younger daughter's heirship because younger daughter had been adopted.
Section 19-3-608 (1), enacted in 1987, states that a "child's status as an heir at law [. . .] shall cease only upon a final decree of adoption." Under section 15-11-119 (3), which became effective in 2010, for the purpose of inheritance from a genetic parent, "[a] parent-child relationship exists between both genetic parents and an individual who is adopted by a relative of a genetic parent, [. . .]".
The court recognized that the right of adopted children to inherit is determined by the inheritance laws in effect when the decedent died. Because both sections 19-3-608 (1) and 15-11-119 (3) were in effect in 2016 when her father died, both applied to younger daughter. The court found that the two sections are in conflict because section 19-3-608 (1) states that younger daughter's heirship was terminated upon the final adoption decree in 1991, but section 15-11-119 (3) says that, as a child who was adopted by a relative of a genetic parent, younger daughter has a parent-child relationship with her father for the purpose of inheritance.
The court held that section 15-11-119 (3) prevails over the conflicting provisions in section 19-3-608 (1) because a specific statute controls over a general statute and a more recent enactment prevails over an older one. First, if a conflict between a special provision and a general provision is irreconcilable, the special provision prevails as an exception to the general provision. The court interpreted section 15-11-119 (3)'s provisions involving only adoptions by certain relatives as carving out a limited exception to the general rule outlined in section 19-3-608 (1). Second, a more recent statute prevails over an older one because the courts presume the legislature is familiar with previous enactments and intends to alter them when passing more recent legislation. Here, because it was enacted later, the court found that the legislature intended the exception in section 15-11-119 (3) to alter the more general rule in section 19-3-608 (1). (For more information, contact Conrad Imel.)
People in Interest of T.B., Colorado Supreme Court No. 19SC690 (June 28, 2021)
Holding: The mandatory lifetime sex offender registration requirement for twice-adjudicated juveniles, pursuant to Colorado Sex Offender Registration Act, sections 16-22-101 to 16-22-115, constitutes cruel and unusual punishment in violation of the eighth amendment if there is no opportunity for individual assessment or the ability to deregister upon demonstrating rehabilitation.
Case Summary: T.B. committed two sexual offenses as a minor, first in 2001 at the age of eleven and second in 2005 at the age of fifteen. Because he was a twice-adjudicated delinquent, he was required to register as a sex offender for the remainder of his life pursuant to the Colorado Sex Offender Registration Act (CSORA). Upon completion of his probation, which included treatment focused on family interactions and interventions, he petitioned to the juvenile court to discontinue sex offender registration in both cases pursuant to section 16-22-113. Due to T.B.'s multiple sex offender adjudications, the court denied T.B.'s petition to discontinue registration. In 2015, T.B. filed a second petition with the juvenile court to discontinue registration arguing that mandatory lifetime sex offender registration for offenses committed as a juvenile violated due process and cruel and unusual punishment. The juvenile court denied T.B.'s petition. The court of appeals, in a split decision, reversed and held that a juvenile mandatory lifetime registration requirement constitutes punishment, and remanded the case to the juvenile court for further proceedings. The People and T.B. each petitioned the Colorado Supreme Court for certiorari review, and the Court granted certiorari to both parties.
There were two issues before the Colorado Supreme Court. The first issue was whether lifetime sex offense registration for twice-adjudicated juveniles constitutes punishment under the eighth amendment. The second issue was whether mandatory lifetime punishment for twice-adjudicated juveniles is facially cruel and unusual punishment under the eighth amendment.
To determine whether CSORA is punitive, the Court applied the two-part inquiry articulated in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963): First, did the legislature intend for the statute to be punitive? And second, if the court intended the statute to be nonpunitive, is the statute punitive in effect as to override the legislature's intent? Although the intent of CSORA was to ensure community protection and aid law enforcement, and not intended to be punitive, the Court noted that the General Assembly was aware that the mandatory registration, as applied to certain juvenile offenders, may be punitive in effect. Because the Court could not conclude that the General Assembly intended CSORA to be punitive, it turned to the second prong of the Mendoza-Martinez inquiry. The Court considered a variety of factors to determine whether the CSORA is punitive in effect. The Court held that the mandatory lifetime sex offender registration for juveniles is excessive and the punitive effects outweigh the General Assembly's nonpunitive intent.
The Court then determined whether such punishment was cruel and unusual and disproportionately punished certain juveniles. The Court analyzed the "objective indicia of society's standards" as provided in legislation and state practice to determine if there is a national consensus against the sentencing practice, as well as applying the Court's own independent judgment. The Court held that CSORA violates the eighth amendment's prohibition on cruel and unusual punishment by requiring mandatory lifetime sex offender registration for twice-adjudicated juveniles without the ability for individual assessment or to deregister upon demonstration of rehabilitation.
The General Assembly passed and Governor signed House Bill 21-1064 which eliminated mandatory lifetime sex offender registration for twice-adjudicated juveniles. The Colorado Supreme Court elected to release the opinion to ensure T.B. receives a new hearing on his petition. (For more information, contact Alana Rosen.)
Ragan v. Ragan, Colorado Court of Appeals No. 20CA0038 (May 27, 2021)
Holding: The Employee Retirement Income Security Act of 1974 (ERISA) precludes post-distribution claims brought pursuant to section 15-11-804 (8)(b), C.R.S., to recover insurance proceeds that were distributed to a former spouse who was the named beneficiary in the insurance policy.
Case Summary: At the time of the decedent's death, his ex-wife remained the named beneficiary of his employer-sponsored life and accidental death insurance policies. The policies are governed by ERISA. After the insurance proceeds were distributed to the ex-wife, the decedent's estate (estate) sued her under state law to recover those proceeds.
Section 15-11-804, C.R.S., is Colorado's divorce revocation statute. Section 15-11-804 (2)(a)(i) provides that any beneficiary designation of a then-spouse is automatically revoked upon divorce. Section 15-11-804 (8)(b) states that if any part of section 15-11-804 is preempted by federal law, a former spouse who received a payment that he or she is not entitled to under the statute is obligated to return that payment or he or she is personally liable for the amount of the payment to the person who would have been entitled to it were the statute or part of the statute not preempted.
Both the Colorado Court of Appeals, in an earlier case, and the United States Supreme court have held that an ERISA plan administrator must distribute benefits to the beneficiary named in the plan. ERISA prohibits benefits provided under a plan from being assigned or alienated. ERISA further contains an express preemption provision, which states that ERISA supersedes "any and all state laws insofar as they may now or hereafter relate to any employee benefit plan" covered by ERISA.
The estate acknowledged that ERISA preempts the state law providing for automatic revocation of an ex-spouse as a beneficiary, so the plan benefits must be distributed to the decedent's ex-wife as the named beneficiary. But the estate claimed that, under section 15-11-804 (8)(b), C.R.S., it could recover money after it was distributed. The court disagreed, finding that ERISA preempts a claim to recover proceeds after distribution under section 15-11-804 (8)(b).
First, there is no case law supporting the notion that ERISA allows a state law-based post-distribution claim to recover ERISA benefits. Second, in a similar case, the Washington Court of Appeals held that ERISA preempts Washington’s divorce revocation statute allowing for recovery of ERISA funds that had been distributed to the designated beneficiary. The court of appeals agreed with the reasoning of the Washington court that section 15-11-804 (8)(b), C.R.S., cannot revive the preempted automatic revocation requirement simply by doing an end-run around ERISA. Finally, the court of appeals found a U.S. Supreme Court case persuasive in which the Supreme Court concluded that the Federal Employees’ Group Life Insurance Act of 1954 preempted a provision of Virginia’s divorce revocation statute similar to Colorado’s. For these reasons, the court held that ERISA precludes post-distribution claims to recover the insurance proceeds from a former spouse pursuant to section 15-11-804 (8)(b). (For more information, contact Conrad Imel.)
In re Interrogatory on House Bill 21-1164, Colorado Supreme Court No. 21SA97 (May 24, 2021)
Holding: The general assembly may require school districts to gradually eliminate temporary tax credits, as provided in House Bill 21-1164, to reset the school districts' total program mill levies to the levels that would have been in effect but for the unauthorized reductions to total program mill levies in school districts that had obtained voter approval to retain all excess property under the Taxpayer's Bill of Rights ("TABOR"), article X, §20 of the Colorado Constitution.
Case Summary: Colorado funds public school districts using a combination of state and local revenue. In 1992, Colorado voters adopted the Taxpayers' Bill of Rights ("TABOR"), Colo. Const. art. X, §20. TABOR limits the ability of school districts to impose new taxes or increase tax rates absent voter approval. Further, under TABOR, the annual increase in property tax revenue is limited to inflation in the prior calendar year plus enrollment growth ("TABOR revenue limit"). TABOR requires school districts to refund any excess revenue to voters unless the district's voters waive the TABOR revenue limit. Beginning in 1995, voters in many school districts voted to waive the TABOR revenue limit. By 2006, 174 of Colorado's 178 school districts had waived the TABOR revenue limit, allowing districts to retain and spend excess revenue.
Despite the district votes to waive the TABOR revenue limit, the Colorado department of education (CDE) continued to advise districts to lower their mill levies to stay within the TABOR revenue limit. Therefore, in school districts in which property tax revenue grew faster than the TABOR revenue limit, contrary to the voter-approved waivers, the districts were required to reduce their property tax mill levies to avoid a reduction in the state's share of total program funding. In 2007, the general assembly passed Senate Bill 07-199, which clarified that school districts were required to reduce the mill levy to the number of mills allowed under the TABOR revenue limit only if the district's voters had not waived the TABOR revenue limit. The bill also set a cap of 27 mills on the total program mill levy. Despite Senate Bill 07-199, the impact of the incorrect mill levy reductions persisted because each reduction had created a new, lower limit on the district's mill levy, and the statute did not allow school districts to increase their mill levies.
In 2020, the general assembly adopted House Bill 20-1418 to correct the unauthorized mill levy reductions that occurred between 1998 and 2007, resetting affected districts' mill levies to the lesser of 27 mills, the number of mills the district would have been authorized to levy without the incorrect reductions, or the number of mills required to fully fund the district's total program. The bill also required districts to grant a temporary property tax credit for the number of mills by which the mill levy increased above the number of mills levied by the district in the 2019 property tax year. In 2021, the general assembly passed House Bill 21-1164, which directs the CDE to adopt a schedule to implement the total program mill levy corrections by requiring school districts to reduce the temporary tax credits by no more than one mill per year beginning in the 2021 property tax year.
The Supreme Court accepted jurisdiction to consider whether, having already mandated that school districts reset their total program mill levies, the general assembly can gradually eliminate the temporary property tax credits per House Bill 21-1164 without requiring districts to obtain voter approval.
The Supreme Court confirmed that reducing the tax credit – and increasing the mill levy – does not require additional voter approval under TABOR. The Court held that, "in voting to waive TABOR's revenue limits, school district voters understood that their votes were predicated on the continuation of the mill levy rates then in effect." Accordingly, the Court reasoned, "the voters who authorized those waivers necessarily approved the mill levies in effect at the time they voted, which mill levies resulted in the very excess revenues for which the waivers were required." The Court concluded, "House Bill 21-1164 simply effectuates what voters have already approved and does not permit mill levies above that level." Therefore, no second vote is required. Further, phasing out the "temporary" tax credits granted in House Bill 20-1418 is not a "tax policy change" requiring a TABOR vote because the tax credits were never intended to be permanent, so phasing them out is not a change in tax policy. (For more information, contact Brita Darling.)
People v. Cox, Colorado Court of Appeals No. 19CA2085 (May 13, 2021)
Holding: The general assembly has no authority to modify the affirmative defense in Article XVIII, Sec. 14 (2)(a) of the Colorado constitution.
Case Summary: A jury acquitted the defendant of marijuana cultivation, section 18-18-406 (3)(a)(I), C.R.S., and the district attorney appealed arguing that trial court erred in not supplementing the elements of the constitutional affirmative defense for medical marijuana with additional elements added by statute. The district attorney argued that the jury instructions for the affirmative defense should include the provisions in section 18-18-406 (3)(b) and (3.5), C.R.S., that require medical marijuana cultivation to occur in an enclosed and locked space and requires a primary care-giver cultivating medical marijuana to comply with section 25-1.5-106, C.R.S. The trial court rejected the district attorney's request to add those elements to the affirmative defense instructions.
The court of appeals affirmed the trial court's decision. The court of appeals found that the general assembly cannot modify the affirmative defense found in Article XVIII, Sec. 14 (2)(a) of the Colorado constitution. The statutory provisions make the affirmative defense harder to prove. Therefore, inclusion of those provisions would dilute the affirmative defense, and the general assembly has no authority to dilute constitutional rights. A statute that purports to add substantive elements to a defense defined in the constitution cannot trump the constitution. (For more information, contact Michael Dohr.)
People v. Garcia, Colorado Court of Appeals No. 17CA1911 (May 13, 2021)
Holding: Section 18-1-303, C.R.S., does not prevent a Colorado prosecution regardless of prior prosecution by a foreign country.
Case Summary: Defendant was convicted of first degree murder. The defendant and his wife separated, and his wife started a relationship with another man. The defendant threatened to kill the other man. He came to his wife's house with a shotgun when the man was present, and a fight started. The defendant stabbed the man in the back, and the man ran into the bedroom and locked the door. The defendant fired his shotgun through the locked door killing the man. The defendant then fled to Mexico. The district attorney's office attempted to have the defendant extradited to Colorado from Mexico without success. Then, the district attorney compiled a casebook and sent it to Mexico so the defendant could be prosecuted under Mexico's foreign prosecution law. The defendant was acquited of the murder in Mexico. Years later the defendant returned to Colorado, was arrested upon his arrival, and was subsequently tried and convicted of the man's murder.
Section 18-1-303, C.R.S., bars a Colorado prosecution when there has been a prosecution that resulted in a conviction or acquittal for the same conduct in the United States, another state, or a municipality. The statute does not include foreign countries in the list. The defendant argued that the Colorado Supreme Court's decision in People v. Morgan, 785 P.2d 1294 (Colo. 1994), requires dismissal of his case. In that case, the supreme court stated "[t]he better reading of section 18-1-303 uniformly abolishes the dual sovereignty doctrine, prohibiting prosecution under Colorado law when the defendant has been subjected to prior prosecution by any separate sovereign - federal, state, or tribal". The court of appeals distinguished People v. Morgan finding that the holding is limited to only prosecutions by federal, state, or tribal authorities, not foreign authorities. Therefore, section 18-1-303, C.R.S., did not bar the defendant's subsequent Colorado prosecution. (For more information, contact Michael Dohr.)
Markwell v. Cooke, Colorado Supreme Court No. 20SC585 (March 15, 2021)
Holding: The requirement of article V, section 22 of the Colorado constitution that a bill be "read at length" is not satisfied when a chamber of the general assembly uses automated software to have multiple computers simultaneously give voice to different portions of a bill at a speed of about 650 words per minute. However, while a court has the authority to determine in a case before it whether a specific method actually used by a chamber of the general assembly to effectuate a "reading" complies with the reading requirement, the separation of powers doctrine prohibits a court from prescribing the form or manner in which the general assembly may comply with the reading requirement in the future.
Case Summary: Article V, section 22 of the Colorado constitution requires every bill to be read "at length on two different days in each house" but the requirement to read at length may be "dispensed with upon unanimous consent of the members present." While such unanimous consent is typically granted, during the 2019 legislative session, a senator requested that House Bill 19-1172, a 2,023-page recodification bill, (HB 1172) be read at length on second reading. In response, the secretary of the senate (secretary) directed senate staff to upload the bill to multiple computers and use automated software to recite different portions of the bill simultaneously at the maximum rate of approximately 650 words per minute. Four to six computers did this, creating an unintelligible recitation of the bill. The senator who had requested the reading at length and two other senators objected to this method of "reading" the bill and requested that the computers' recitation rate be slowed down. Both the secretary and the president of the senate (president) refused to do so, and the computers completed the recitation process a few hours later.
The objecting senators filed a complaint for injunctive relief and declaratory judgment against the secretary and the president in the Denver District Court. The district court quickly granted a temporary restraining order prohibiting the secretary and the president from: (1) "refusing to read legislation ... in an intelligible fashion" without the unanimous consent required to dispense with the reading requirement; and (2) passing HB 1172 in violation of article V, section 22 "by failing to read the bill out loud on two consecutive days." After determining that the case did not present a nonjusticiable political question and that the objecting senators had a reasonable probability of success on the merits, the district court entered a preliminary injunction requiring the secretary to comply with the reading requirement by using "a methodology that is designed to read legislation in an intelligible and comprehensive manner, and at an understandable speed." After the Senate passed HB 1172 in compliance with the court's requirements, the court made the injunction permanent and issued a declaratory judgment, stating that: (1) using multiple computers to read different portions of the bill simultaneously "at an incomprehensible speed" violates the reading requirement of article V, section 22; and (2) the secretary must read all future legislation "in an intelligible manner and at an understandable speed" if a senator objects to dispensing with the reading requirement. The parties then filed a joint motion seeking direct review by the Colorado Supreme Court.
The supreme court granted the joint motion for direct review and agreed to review the following issues: (1) Whether the district court erred by failing to find that the dispute over the manner of "reading" a bill is a nonjusticiable political question; (2) Whether the district court correctly granted injunctive relief to direct the manner of the Senate's reading of a pending bill; and (3) Whether the district court erred in granting declaratory relief in light of non-textual parameters it established to direct bill readings in the Senate for HB 1172 and future bills. The supreme court held that: (1) The dispute is justiciable because constitutional interpretation is "peculiarly within the province of the judiciary" and interpretation of article V, section 22 of the Colorado constitution "in no way transgresses the bounds of another branch of government;" (2) The "unintelligible sounds" produced by multiple computers rapidly reading different sections of HB 1172 simultaneously do not comply with the reading requirement because they do not conform with any definition of reading; and (3) The district court erred by prescribing requirements for the senate to follow in complying with the reading requirement in the future because "the separation of powers doctrine requires no less and permits no more than to have us interpret the constitution and determine whether the legislature complied with it [and] prohibits us from dictating to our coequal branch of government how to comply with the reading requirement moving forward." Two justices wrote separate dissents, both joined in by each other and a third justice. The first dissent stated that "the plain language of article V, section 22 simply requires that bills be 'read.' or uttered aloud. Nothing more." The second dissent stated that, to the extent that "read" is ambiguous, the majority decision showed "insufficient deference to the Senate's interpretation of a constitutional provision governing the internal affairs of the legislative branch" and that "[s]eparation of powers demands more than the majority's rule that courts can't tell the legislative branch what to do but can tell it what not to do." (For more information, contact Jason Gelender.)