Cases of Note Archive 2015

Dwyer v. State, Colorado Supreme Court No. 12SA22 (September 21, 2015)

Holding: The "negative factor" used to reduce a school district's total program funding does not violate article IX, section 17(1) of the Colorado constitution (Amendment 23) because the negative factor does not reduce the statewide base per pupil funding below the minimum funding required by the constitution. The plaintiffs have failed to state a claim for relief. The case is remanded to the trial court to dismiss the complaint.

Case Summary: The Colorado Supreme Court remanded the case to the trial court for an order granting the State's motion to dismiss the complaint. The plaintiff, Dwyer, argued that the "negative factor" applied to a school district's total program funding pursuant to section 22-54-104, C.R.S., is unconstitutional because it violates Amendment 23, which requires annual increases to "statewide base per pupil funding."

Colorado apportions education funding to individual school districts pursuant to the Public School Finance Act of 1994 (the Act) set forth in sections 22-54-101 to 22-54-137, C.R.S. Pursuant to the Act, a school district's "per pupil funding" is comprised of two main components; "statewide base per pupil funding" and "factor" funding.  The statewide base per pupil funding is the same for all school districts.  The amount of a school district's factor funding varies based upon the characteristics of the school district.  Once a school district's per pupil funding is determined, that amount is multiplied by the school district's pupil count, with additional funding added for certain pupils, resulting in the school district's "total program funding." 

The voters of Colorado passed Amendment 23 in 2000 through the initiative process.  The relevant portion of  Amendment 23 requires the general assembly to annually increase statewide base per pupil funding by at least the rate of inflation. In 2010, to stabilize the state budget, the general assembly established the "negative factor" to implement a uniform percentage reduction to each school district's total program funding as calculated under the Act. Each year, the general assembly increases the "statewide base per pupil funding" by inflation as required by Amendment 23, and then reduces each school district's total program funding by the percentage reduction amount for that budget year, which is calculated to meet the statutory cap established for education funding.  But a school district's total program funding cannot fall below the required statewide base per pupil funding amount, as adjusted by Amendment 23.  

Dwyer argued that, because factor funding is based on the statewide base per pupil funding amount, the intent of Amendment 23 was actually to increase total per pupil funding through the application of the funding formula. Although the general assembly may have annually increased the statewide base per pupil funding amount, when it applied the negative factor, the general assembly reduced total program funding, thereby reducing the anticipated effect of the increase to the base and violating Amendment 23.

The Supreme Court held that the plain language of Amendment 23 requires annual increases to statewide base per pupil funding and not to total program funding. Because the language is clear and unambiguous, the Court does not need to look beyond the language of the amendment to ascertain the voters' intent. Because the application of the negative factor has not reduced statewide base per pupil funding below the constitutional minimum, it does not violate Amendment 23. Therefore, the plaintiffs failed to state a claim for relief and the complaint should be dismissed.

McKinley v. City of Glenwood Springs, Colorado Court of Appeals No. 14CA1039 (September 10, 2015)

Holding: The court of appeals affirmed the district court's ruling and rejected the City's request for attorney fees under C.R.C.P. 12(b). The court of appeals stated that, "although section 24-10-106(1)(d)(I), C.R.S., is not ambiguous as to whether it waives immunity for parking areas of a street within the limits of a municipality, it is a poorly written statute…[w]hile it is possible to diagram the grammatical composition of this section to demonstrate the lack of ambiguity, the complexity of such a diagram reinforces our hope that the legislature will rewrite it."

Case Summary: The plaintiffs, Linda and William McKinley, filed a claim against the defendant, the City of Glenwood Springs (City), seeking to hold the City liable for Linda McKinley's injuries and William McKinley's loss of consortium after Linda McKinley pulled her car into a parking spot on a municipal street in Glenwood Springs, stepped out of her car, and tripped in a four- to five-inch deep depression in the pavement of the parking lot. The City moved to dismiss the McKinley's complaint, claiming that it was immune from suit under section 24-10-106 (1), C.R.S., of the Colorado Immunity Act (CGIA), which protects public entities from suits for tort-based injuries unless the section explicitly waives immunity. In response to the City's motion, the district court conducted an evidentiary hearing and found that section 24-10-106 (1) (d) (I), C.R.S., waives immunity for injuries occurring in parking areas in municipalities. They also found that the depression was dangerous and interfered with traffic. The City appealed the district court's denial of its motion to the Colorado court of appeals.

On appeal, the City argued that the grammatical structure of the statute "separates the types of government roads by disjunctive." The City further argued that such separation makes the final phrase "on that portion of such highway, road, street, or sidewalk which was designed and intended for…parking thereon" only applicable to "highways" that are part of the "state highway system." The court of appeals disagreed, and held that the "parking thereon" phrase applies to each division of thoroughfare: highway, road, street, or sidewalk. As a result, the "parking thereon" phrase must apply to municipal highways, roads, streets, or sidewalks.

The City also argued that it was immune from suit under the CGIA because neither Linda McKinley's fall nor the depression "physically interfere[d] with the movement of traffic." However, the evidence established that the depression was a dangerous condition that physically interfered with traffic because cars pull into the City's parking spaces from the City's street, the depression was four- to five-inches deep, and the surface of the City's parking spaces are normally smooth. Therefore, the court of appeals disagreed with the City's argument.

The court of appeals affirmed the district court's ruling and rejected the City's request for attorney fees under C.R.C.P. 12(b). The court of appeals further stated that, "although section 24-10-106(1)(d)(I), C.R.S., is not ambiguous as to whether it waives immunity for parking areas of a street within the limits of a municipality, it is a poorly written statute…[w]hile it is possible to diagram the grammatical composition of this section to demonstrate the lack of ambiguity, the complexity of such a diagram reinforces our hope that the legislature will rewrite it."

Craig v. Masterpiece Cakeshop, Inc., Colorado Court of Appeals No. 14CA1351 (August 13, 2015)

Holding: The act of same-sex marriage is closely correlated to petitioners' sexual orientation and thus the respondents' refusal to create a wedding cake for their same-sex wedding because of respondent's religious beliefs violated the Colorado Anti-Discrimination Act (CADA). The act of designing and selling a wedding cake to all customers free of discrimination does not force respondent to engage in compelled expressive conduct in violation of the freedom of speech protections of the First Amendment to the United States constitution (First Amendment) or the Colorado constitution. CADA is a neutral law of general applicability and does not violate the free exercise of religion guaranteed by the first amendment to the United States constitution and article II, section 4 of the Colorado constitution.

Case Summary: Charlie Craig and David Mullins (petitioners), requested that Masterpiece Cakeshop, Inc., and its owner Jack Phillips (respondents), design and create a cake for their same-sex wedding. Phillips declined, telling petitioners that he does not create wedding cakes for same-sex weddings because of his religious beliefs. Petitioners filed charges of discrimination with the Colorado Civil Rights Division (Division), alleging discrimination based on sexual orientation in violation of CADA. The Division investigated and found probable cause to credit the allegations of discrimination. Petitioners then filed a formal complaint with the Office of Administrative Courts. The administrative law judge (ALJ) filed a lengthy written order finding in favor of petitioners and against respondents on cross-motions for summary judgment. The order was affirmed by the Colorado Civil Rights Commission (Commission). The Commission's final cease and desist order required respondents to: (1) take remedial measures, including staff training and an alteration to the company's policies to ensure compliance with CADA; and (2) file quarterly compliance reports for two years with the Division that describe the remedial measures taken to comply with CADA and document all patrons who were denied service and the reason for the denial.

Respondents appealed the Commission's order to the Colorado Court of Appeals, alleging, in addition to several procedural motions, that: (1) the ALJ erred in concluding that respondents' refusal to create a wedding cake for petitioners was "because of" their sexual orientation; (2) the Commission's order compels speech in violation of the First Amendment and article II, section 10 of the Colorado constitution; and (3) the Commission's order unconstitutionally infringes on the respondents' free exercise of religion rights, protected by the First Amendment and article II, section 4 of the Colorado constitution. The Court of Appeals affirmed the Commission's decision.

To prevail on a discrimination claim under CADA, petitioners must prove that, "but for" their membership in a protected class, here sexual orientation, they would not have been denied the full privileges of a place of business engaged in sales to and offering services to the public. Respondents argued that the decision to not create a wedding cake for petitioners was solely because of petitioners' intended conduct, same-sex marriage, and the celebratory message about same-sex marriage that the baking of the cake would convey, not "because of" the petitioners' sexual orientation. The Court of Appeals concluded that the act of same-sex marriage is closely correlated with sexual orientation and that, "[b]ut for their sexual orientation, [petitioners] would not have sought to enter into a same-sex marriage, and but for their intent to do so, [respondents] would not have denied them [their] services." The Court of Appeals held that the ALJ did not err by concluding that respondents refused to create a wedding cake for petitioners "because of" their sexual orientation, in violation of CADA.

Respondents argued that the Commission's order compels speech in violation of the First Amendment and article II, section 10 of the Colorado constitution by requiring respondents to create wedding cakes for same-sex weddings. Respondents argued that wedding cakes inherently convey a celebratory message about marriage and, therefore, the Commission's order unconstitutionally compelled the respondents to convey a celebratory message about same-sex marriage that is in conflict with respondents' beliefs. The Court of Appeals stated, "the act of designing and selling a wedding cake to all customers free of discrimination does not convey a celebratory message about same-sex weddings likely to be understood by those who view it, . . . that message is more likely to be attributed to the customer than to [respondents]." Furthermore, the Court of Appeals found that "CADA does not prevent [respondents] from posting a disclaimer in the store or on the Internet indicating that the provision of its services does not constitute an endorsement or approval of conduct protected by CADA." Deciding not to distinguish between the First Amendment and article II, section 10 of the Colorado constitution as applied to respondents' freedom of speech claim, the Court of Appeals held that even if the speech is compelled by the government, it is not sufficiently expressive to warrant First Amendment protection. Because the Court of Appeals held that the compelled conduct was not sufficiently expressive, the Commission did not need to show that it has an important interest in enforcing CADA.

Respondents also argued that the Commission's order unconstitutionally infringed on its right to the free exercise of religion guaranteed by the First Amendment and article II, section 4 of the Colorado constitution. Because the law is unclear as to whether a corporation enjoys free exercise of religion rights under both the United States constitution and the Colorado constitution, the Court of Appeals assumed, without deciding, that Masterpiece has free exercise rights under both the First Amendment and the Colorado constitution. If a law is either not neutral or not generally applicable it must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest. The threshold question thus was whether the Court of Appeals found CADA to be a neutral law of general applicability. Respondents argued that CADA is not generally applicable because the law includes exemptions for places principally used for religious purposes such as churches, synagogues, and mosques. The Court of Appeals stated that a law need not apply to every individual and entity to be generally applicable, noting that the exemptions reflect an attempt by the General Assembly to reduce legal burdens on religious organizations and comport with the free exercise doctrine. The Court of Appeals stated that "CADA does not compel [respondents] to support or endorse any particular religious views. The law merely prohibits [respondents] from discriminating against potential customers on account of their sexual orientation. . . . [Respondents remain] free to continue espousing [their] religious beliefs, including [their] opposition to same-sex marriage. However, if [respondents wish] to operate as a public accommodation and conduct business within the State of Colorado, CADA prohibits [them] from picking and choosing customers based on their sexual orientation." Thus, the Court of Appeals held that CADA is a neutral law of general applicability. The Court of Appeals held "we easily conclude that [CADA] is rationally related to Colorado's interest in eliminating discrimination in places of public accommodation. . . . Therefore, CADA's proscription of sexual orientation discrimination by places of public accommodation is a reasonable regulation that does not offend the free exercise clauses of the First Amendment and article II, section 4."

Respondents further argued that although neutral laws of general applicability do not violate the First Amendment, the free exercise clause of the Colorado constitution required that the Court of Appeals review CADA under heightened strict scrutiny. The Court of Appeals held that because the Colorado Supreme Court has recognized that article II, section 4 of the Colorado constitution embodies "the same values of free exercise and governmental non-involvement secured by the religious clauses of the First Amendment," and because Colorado appellate courts have regularly relied on federal precedent in interpreting article II, section 4, there is no support for the argument that the Colorado constitution requires the application of a heightened scrutiny test.

Taxpayers Pub. Educ. v. Douglass County Sch., Colorado Supreme Court No. 13SC233 (June 29, 2015)

Holding: A majority of the Court holds that the "Public School Finance Act of 1994" (the Act), section 22-54-101, C.R.S., et. seq., neither explicitly permits, nor does the language of the Act imply, a private right of action to enforce the Act. Thus, the plaintiffs/respondents (Taxpayers) lack standing under the Act to bring a claim that the CSP violates the Act. Taxpayers cannot challenge the Act under the doctrine of taxpayer standing, alleging that the government violated a statute. A plurality of the Court holds 4-3 that Douglas County School District's Choice Scholarship Program (CSP) violates the plain language of article IX, section 7 of the Colorado constitution because the scholarship program aids religious schools.

Case Summary: The CSP is a scholarship program created by the Douglas County School Board to distribute tuition scholarships to students who attend private schools. The scholarship amount equals 75% of the per pupil state funds received by the Douglas County School District (District) through the Act. For the 2011-12 school year, the amount of the scholarship was $4,575. The District pays the scholarship to a student's parents through a check endorsed to the participating private school that the student attends. To participate in the CSP, a private school must satisfy certain requirements and allow the District to administer various assessments. The private school need not, however, modify its admission criteria, and the CSP explicitly authorizes participating private schools to make enrollment decisions based on religious belief.  The majority of the participating private schools are religious, and, for the 2011-12 school year, 93% of scholarship recipients were enrolled in religious schools. In theory, the CSP operates as a tuition offset, although the CSP does not prohibit participating private schools from raising tuition after having been approved for the CSP or from reducing the amount of financial aid paid to students who qualify for the scholarship.

Taxpayers sought and won an injunction in the district court to prohibit implementation of the CSP on the grounds that the CSP violates the Act and various provisions of the Colorado Constitution.  The District appealed to the Colorado Court of Appeals, which reversed the trial court, holding that Taxpayers lacked standing to sue under the Act. Further, the Court of Appeals held that the CSP does not violate the Colorado Constitution primarily because the District may provide additional educational opportunities for its students and the CSP is intended to benefit students and their parents; any incidental benefit to religious schools results from voluntary choices made by students and parents.

Taxpayers appealed the court of appeals' decision  to the Colorado Supreme Court, asking to reinstate the permanent injunction against the CSP. The Colorado Supreme Court (the Court) granted certiorari on six issues, two relating to the Act and four relating to claims under the Colorado Constitution. 

Taxpayers alleged that the CSP does not comport with the Act because the Act establishes a formula to calculate the amount of money awarded to a school district "to fund the costs of providing public education," and the CSP uses public funds to finance private education.  To bring a claim, a plaintiff must show an injury to a legally protected interest. The Court held that Taxpayers have no legally protected interest or claim for relief because the Act does not contain explicit language creating a private right of action to enforce the Act. Because the Act is silent on the matter of remedy, the Court applied a three-part test to determine whether the Act implies a private right of action. The Court found there is nothing in the Act that suggests the General Assembly intended to allow private parties to sue under the Act. And, by giving the State Board of Education (State Board) rule-making authority to implement the Act, the General Assembly chose to entrust enforcement of the Act to the State Board. The Court also refused to find that Taxpayers have "taxpayer standing" to enforce the Act. Taxpayer standing typically applies only to constitutional violations, and the Court declined to apply it to statutory violations.  The Court's holding that Taxpayers lack standing to sue to enforce the Act resolved the two Act-related claims. In her concurring opinion, Justice Marquez would have granted taxpayer standing and concluded that the CSP violates the Act by funneling state funds to finance private education. Because she would resolve the case in favor of Taxpayers, she concurs in the judgment only.

With respect to the state constitutional issues, the Court determined that the CSP violates article IX, section 7 of the Colorado constitution (section 7), which states that "[n]either the general assembly, nor any . . . school district . . . shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, . . .controlled by any church or sectarian denomination whatsoever . . . ." The Court determined that the term "sectarian" in section 7 is synonymous with "religious," and that the text also equates the term "sectarian" with "church" in two places, reinforcing this conclusion.  "Therefore, this stark constitutional provision makes one thing clear:  A school district may not aid religious schools." The Court found that the CSP aids religious schools because it encourages students to attend religious schools by providing scholarships. While the CSP does not funnel money directly to religious schools, section 7's prohibitions are not limited to direct funding. Given that religious schools rely on students' attendance and corresponding tuition for their survival, the CSP's facilitation of attendance necessarily constitutes aid to "support or sustain" those schools.  The Court rejected the District's argument that the CSP features an element of private choice that severs the link between the District's aid to the student and the student's ultimate attendance at a religious school, because the fact remains that the CSP awards public money to students who may use that money to pay for a religious education. In doing so, the CSP aids religious institutions, violating the "clear constitutional command of section 7."

In reaching its decision, the Court rejected the argument that section 7 should be interpreted as a "Blaine Amendment" that arose out of anti-Catholic sentiment on the part of the framers of the Colorado Constitution and that the term "sectarian" literally means "Catholic."  This interpretation would be a patent violation of the federal First Amendment as discrimination against a particular religion. However, the Court stated that  the constitutionality of section 7 was not before the Court, reiterating that "sectarian" is synonymous with "religious" and that where constitutional language is plain and its meaning is clear, it must be declared and enforced as written. The Court also rejected the argument that the CSP should be upheld because it does not violate the federal First Amendment. The Court reviewed the facts and holdings of the federal school voucher cases and found that they do not apply to this case. The Court further found that the U.S. Supreme Court has held that state constitutions may be more restrictive than the federal constitution in prohibiting state support for religious institutions. Because it determined that the CSP violates section 7, the Court did not consider the remaining constitutional claims. 

Justice Eid, joined by Justices Coats and Boatright, concurred in the part of the judgment holding that Taxpayers lack standing to bring the statutory claim, and dissented on the constitutional issues.

St. Jude's Co. v. Roaring Fork Club, L.L.C., Colorado Supreme Court No. 13SA132 (June 29, 2015)

Holding: The water court erroneously granted a private resort's application for a water right to divert water for "aesthetic, recreation, and piscatorial uses" where the stated uses neither constituted "beneficial uses" nor qualified as specifically listed inclusions in the statutory definition of "beneficial use".

Case Summary: Roaring Fork Club, L.L.C., the owner of a private golf, fishing, recreational, and residential resort, applied for a decree to divert 21 cubic feet per second (cfs) from the Roaring Fork River to provide "aesthetic and recreational amenity to a golf course development, as well as for fish habitat and as a private fly-fishing stream." The water court decreed the Club appropriative rights to use 21 cfs for "aesthetic, recreation, and piscatorial uses." The Colorado Supreme Court determined that the Club's stated uses did not meet the definition of "beneficial use", nor any of the three beneficial uses specifically listed under the definition, where the stated uses did not necessarily even constitute a "use" because they were entirely passive. Additionally, the Court observed that a beneficial use must have objective limits, beyond which the use would become "unreasonable, inappropriate, inefficient, or wasteful", but the Club's stated uses do not have objective limits because they are directed toward achieving subjective enjoyment by the Club's guests and "beauty, excitement, or fun cannot even conceptually be quantified." The Court noted that even the piscatorial use identified by the Club would merely be for the subjective enjoyment of its guests by creating "a more challenging recreational fishing experience." The Court concluded that the appropriation sought would be tantamount to a "forbidden riparian right" because it would merely change the path of a natural stream and recreate it on the Club's private property. Yet the Court also noted that it was for the General Assembly to approve of such uses, as it has done with the instream flow and recreational in-channel diversion programs. Thus concluding that the water court erroneously decreed the Club appropriative rights for "aesthetic, recreation, and piscatorial uses" on its private property, the Court reversed the water court's judgment and vacated the decree.

Coats v. Dish Network, LLC, Colorado Supreme Court No. 13SC394 (June 15, 2015)

Holding: Because plaintiff's state-licensed medical marijuana use was, at the time of his termination, subject to and prohibited by federal law, the Colorado Supreme Court affirms the Court of Appeals' holding that it was not "lawful activity" for purposes of a section 24-34-402.5, C.R.S., claim that the employer's termination of plaintiff for testing positive for marijuana use amounted to a prohibited discriminatory or unfair employmernt practice.

Case Summary: Mr. Coats, a quadriplegic, is licensed by the state of Colorado to use medical marijuana.  Mr. Coats alleged that he used marijuana within the limits of the license, never used marijuana on his employer's premises, and was never under the influence of marijuana at work. The employer, Dish Network, fired Mr. Coats after he tested positive for marijuana, which established a violation of Dish Network's drug policy. Mr. Coats filed an action claiming that his termination violated the lawful activities statute, section 24-34-402.5, C.R.S., which prohibits, as "an unfair or discriminatory employment practice," an employer from terminating an employee for "engaging in any lawful activity off the premises of the employer during nonworking hours," subject to certain exceptions. Dish Network filed a motion to dismiss, arguing that the use of medical marijuana was not "lawful activity" because it was prohibited under both state law and federal law.  The trial court did not consider whether Mr. Coats' marijuana use violated federal law, but granted Dish Network's motion and dismissed the case on the ground that state law made licensed medical marijuana use an affirmative defense to criminal prosecution but did not create a constitutional right to such use and did not make such use a "lawful activity" for purposes of section 24-34-402.5, C.R.S.

The Court of Appeals upheld the dismissal but used different reasoning. Because section 24-34-402.5, C.R.S., does not define "lawful activity," the Court of Appeals first looked to the ordinary meaning of the word "lawful" and determined that it means that "which is permitted by law." The Court of Appeals reasoned that because medical marijuana use is subject to both state and federal law, for such an activity to be "lawful" in Colorado it must be permitted by, and not contrary to, both state and federal law.

The Supreme Court affirmed, stating that "we agree with the court of appeals that the commonly accepted meaning of the term "lawful" is "that which is 'permitted by law' or, conversely, that which is 'not contrary to, or forbidden by law.'" The Supreme Court reasoned that the term "lawful" is used in the statute in its general, unrestricted sense. "We find nothing to indicate that the General Assembly intended to extend section 24-34-402.5's protection for 'lawful' activities to activities that are unlawful under federal law."

Denver Classroom Teachers Ass'n v. City & County of Denver Sch. Dist. No. 1, Colorado Court of Appeals No. 13CA1530 (June 4, 2015)

Holding: Section 22-32.5-104(3)(f), C.R.S., unambiguously requires that a school obtain evidence of the majority consent of administrators, teachers employed at the school, and the school's accountability committee before submitting an innovation plan for approval to the school district or state board of education. Associations can bring a mandamus action to compel the school district and state board of education to perform a state statutory duty.

Case Summary: The Denver Classroom Teachers Association, and others (Associations) sought declaratory, injunctive, and mandamus relief against Denver public schools (DPS) regarding the implementation of the Innovation Schools Act of 2008 (Act). In the district court, the Associations argued that DPS violated the Act by implementing innovation plans at 11 district schools without first obtaining approvals for the plans from the majority of teachers employed at the schools. The district court granted relief with respect to 2 of the schools and denied relief for the remaining 9 schools.  On appeal, DPS asserts that the district court lacked jurisdiction to entertain the Associations' action and the district court erred in granting relief to the Associations with respect to the 2 schools.

The Act sets forth the process for a school to receive designation as an innovation school. A significant step in the process involves the school submitting its innovation plan to the school district board of education for approval.  If approved, the school district may seek designation as a district of innovation by the state board of education. A school or group of schools designated as innovation schools are granted waivers from any statutes or rules specified in their innovation plan. In addition, innovation status allows the school to waive provisions of their collective bargaining agreements following a secret ballot vote of the members of any collective bargaining unit who are employed at the innovation schools, Those waivers become effective if approved by at least 60% of the members of the collective bargaining unit. Many waivers include issues relating to the school's calendar and schedules and to teacher and staff hiring, assignments, evaluations, compensation, and dismissal.

DPS created innovation plans for schools that were academically low-performing and that were in "turnaround" or "redesign" status, schools that would be new schools replacing such schools and located in the same school buildings, and brand new schools that, at the time of the development of the innovation plan, consisted of school administrators, but had no teachers employed by the school or students enrolled in the school.

The case in the district court and on appeal concerns §22-32.5-104(3)(f), C.R.S., which requires the school's innovation plan submitted to the school district board of education to include "evidence that a majority of the administration employed at the public school, a majority of the teachers employed at the public school, and a majority of the school accountability committee for the public school consent to designation as an innovation school."  The Associations alleged that DPS failed to include evidence of majority consent in its innovation plans as required by statute.

The Court of Appeals held that the district court had jurisdiction to entertain the Associations' request for mandamus relief and could grant mandamus relief so long as the Associations established that they had a clear right to relief, that DPS had a clear duty under the statute, and that the Associations had no other available remedy under the statute. 

The Court of Appeals also held that the plain language of §22-32.5-104(3)(f), C.R.S., unambiguously requires DPS to seek majority consent of the innovation plans by teachers employed at the school, administrators employed at the school, and the school's accountability committee, which committee includes parents of students enrolled at the school, before submitting the plans for approval. The court found that this mandatory requirement is consistent with the intent of the legislature pursuant to §22-32.5-102, C.R.S., to ensure that teachers have flexibility to determine the most effective and efficient manner to meet students' needs and that parents, through the school accountability committee, have input regarding the educational services their children receive. The statutory purpose is frustrated if the input is not provided before the plan is approved. 

 Holding that a school or school district cannot develop an innovation plan without complying with the pre-submission majority consent requirement set forth in §22-32.5-104(3)(f), C.R.S., and that approval after the fact is not substantial compliance with the requirement, the Court of Appeals reversed the district court's order, in part, and remanded the case to the district court to craft appropriate injunctive relief. The injunctive relief must require DPS to resubmit innovation plans for the 11 schools that comply with §22-32.5-104(3)(f), C.R.S., and enjoin the approval of any new innovation plans that do not comply with the statute. The Court of Appeals stressed that injunctive relief is an equitable remedy and the court has broad discretion to mitigate the consequences that may result from this order.

People v. Tate, Colorado Supreme Court No. 12SC0932 (June 1, 2015)

Holding: A juvenile serving an unconstitutional mandatory sentence of life without parole, which sentence is not yet final, is entitled to resentencing to determine, through an individualized consideration of the defendant's youth and attendant circumstances, whether life without parole is appropriate. If the sentencing court determines that life without parole is not appropriate, then the appropriate sentence, absent legislative action, is life in prison with the possibility of parole after forty years.

The Miller v. Alabama, 132 S.Ct. 2455 (2012), decision was procedural, not substantive; therefore it does not apply retroactively to a case in which the sentence is final and the case is on collateral review of final judgment.

Case Summary: In Miller v. Alabama, 132 S.Ct. 2455 (2012), the U.S. Supreme Court ruled that a mandatory sentence of life without parole for a juvenile is unconstitutional. From 1990 to 2006, Colorado imposed a mandatory life sentence without parole for a juvenile convicted of a class 1 felony. In People v. Tate, which was consolidated with two other cases, the Colorado Supreme Court reviewed three cases in which juveniles were sentenced to mandatory life without parole. Two of the cases were on direct appeal. In these two cases, the Court identified a court's sentencing options for juveniles who are convicted as adults of a class 1 felony, since the only statutory penalty, a mandatory life sentence without parole, is unconstitutional. The Colorado Supreme Court found that a sentencing court should determine, through an individualized consideration of the defendant's youth and attendant circumstances, whether life without parole is an appropriate sentence. A life without parole sentence for a juvenile is constitutional as long as it is not mandatory. If the sentencing court determines that life without parole is not warranted, then the appropriate sentence, absent legislative action, is life in prison with the possibility of parole after forty years. 

The third case in this consolidated case was brought on collateral review of the juvenile's final judgment. The question in that case was whether the Miller decision applied retroactively to cases that have completed the direct appeal process. The Colorado Supreme Court ruled that the Miller decision was procedural, not substantive; therefore it does not apply retroactively to cases in which the judgement is final and the defendant can seek only collateral review. So, only those persons serving a mandatory life sentence without parole whose cases are still in the direct appeal process are eligible for resentencing under Miller.

Frees v. Tidd, Colorado Supreme Court No. 14SA0234 (June 1, 2015)

Holding: The water court correctly granted an application for a nonconsumptive hydropower water right that used, at least in part, water in a ditch that was being delivered to a different, senior water right.

Case Summary: A ditch on a landowner's property delivered water for a consumptive use elsewhere by a senior water right; the ditch often diverted all the water from the stream. The landowner filed an application for a junior water right that would nonconsumptively use some of the water in the ditch to generate hydroelectricity. The water court imposed terms to prevent injury to the senior water right and granted the application. The senior water right owner conceded that no injury resulted, but argued that the law prohibited a new appropriation of the exact water that had already been appropriated.

The supreme court upheld the water court, ruling that an applicant for a junior hydropower water right may nonconsumptively use the water in a ditch that is being delivered to a senior consumptive water right further down the ditch if no injury to the senior right results; doing so maximizes the beneficial use of water. Although the senior right often diverts all available water from the stream, water is nevertheless available because the applicant can either use whatever water there may be in the stream that the junior right is entitled to use or the water in the ditch that is being delivered to the senior right. The senior water right owner does not own the actual water, merely the right of use; consequently, the landowner did not apply to use or reappropriate the senior right, but rather applied for a multiple use of particular water, which Colorado water law favors.

Coffman v. Williamson, Colorado Supreme Court No. 14SA249 (May 26, 2015)

Holding: A legal software company is not covered by the original legal services exemption from regulation under the "Uniform Debt-Management Services Act" (Act) because the company performs substantive debt-management services without meaningful instruction and supervision by an attorney. Furthermore, the amended legal services exemption provision of the Act does not violate the separation of powers doctrine of the Colorado constitution or the commerce or privileges and immunities clauses of the United States constitution.

Case Summary: Morgan Drexen, a legal software company owned and operated by nonlawyers, provides debt-management services nationwide. Morgan Drexen contracted with a Colorado attorney as "engagement counsel", and the attorney then entered into attorney-client fee agreements with debtors. The Act requires a business that seeks to provide debt-managment services as an intermediary between creditors and debtors to be a registered debt-management services provider under the Act. The administrator of the Act denied Morgan Drexen's application for registration under the Act and issued a cease and desist order against Morgan Drexen. Morgan Drexen filed a complaint for a declaratory judgment seeking a declaration that it did not provide debt management services and that the Act, as amended, is unconstitutional. The administrator and the attorney general filed counterclaims that Morgan Drexen violated numerous provisions of the Act. 

The trial court held that Morgan Drexen provided debt-management services in Colorado but was exempted from regulation under the Act through the Act's legal services exemption because the it is a nonlawyer assistant associated with a lawyer. The trial court further found that the amended Act violates the separation of powers doctrine of the Colorado constitution because the Colorado supreme court has jurisdiction over attorney regulation but the Act regulates attorneys who are not licensed in Colorado but nonetheless are authorized to practice in Colorado as well as nonlawyer assistants. The trial court also found that the amended Act violates the commerce and privileges and immunities clauses of the United States constitution by placing out-of-state attorneys at a competitive disadvantage and placing residency at issue in determining whether an attorney is subject to the Act.

The Colorado Supreme Court reversed the trial court's ruling. The court held that Morgan Drexen did not qualify as a nonlawyer assistant covered by the legal services exemption under the Act because Morgan Drexen did not act on behalf of a lawyer in providing debt-management services; rather, the lawyer Morgan Drexen contracted with as engagement counsel acted on behalf of Morgan Drexen in providing debt-management services because Morgan Drexen coordinated the attorney's efforts in negotiating with creditors. The court reasoned that a nonlawyer assistant must, at a minimum, be an employee of an attorney to fall within the scope of the Act's legal services exemption. The court also held that the amended Act does not violate the separation of powers doctrine of the Colorado constitution because regulation of attorneys under the Act does not implicate the judicial branch's regulatory authority over bar admission, discipline, or license revocation of attorneys. Finally, the court determined that the amended Act does not violate the commerce or privileges and immunities clauses of the United States constitution because the Act is facially neutral, any burden it places on out-of-state attorneys is incidental, and out-of-state attorneys can still provide debt-management services in Colorado by complying with the Act.

Burnett v. Colo. Dept. of Natural Res., Colorado Supreme Court No. 13SC306 (March 23, 2015)

Holding: The Colorado Governmental Immunity Act's (CGIA) grant of immunity to a public entity for any injury "caused by the natural condition of any unimproved property" includes a native tree originating on unimproved property even if the tree causes an injury to occur on improved property. A 2004 case that had expanded the CGIA definition of "public facility" to include as a "component" a natural object like a tree "if a public entity incorporates the object into a facility in such a manner that it becomes an integral part of the facility and is essential for the intended use of the facility" is overruled as inconsistent with the language of the CGIA.

Case Summary: The claimant and her friend were camping in Cherry Creek State Park at a campsite under trees that flanked and overhung the campsite. While they slept, an overhanging tree branch fell and injuried the claimant. The claimant brought a premises liability action against the department of natural resources, seeking compensation for her injuries. Section 24-10-106  (1) (e), C.R.S., generally waives governmental immunity for an injury "caused by a dangerous condition of any . . . public facility located in any park or recreation area maintained by a public entity," but also specifies that a public entity retains immunity "for an injury caused by the natural condition of any unimproved property, whether or not such property is located in a park or recreation area . . .". The claimant argued that the park was a public facility and that the overhanging tree branches constituted a dangerous condition of a public facility. The claimant also contended that the state had altered the trees' natural condition through incidental maintenance (pruning) and that, because the state had built the campsite under the trees, the trees were incorporated into the improved property.

The Colorado Supreme Court examined the legislative history of the CGIA and determined that the General Assembly intended to immunize the government for injuries caused by natural objects regardless of their proximity to man-made objects or facilities. The Court more specifically concluded that the General Assembly, in enacting the "natural condition of any unimproved property" language of the CGIA, intended to retain governmental immunity for injuries caused by native trees on unimproved property, regardless of their proximity to a public facility. The Court also determined that the state did not have an obligation to prune the trees, but that doing so did not create a duty to do so because assuming such a duty would discourage the state from conducting any incidental maintenance at all. Accordingly, the Court held that the state is immune under the natural condition provision of the CGIA because a natural condition of unimproved property caused claimant's injuries. Finally, the  Court overruled Rosales v. City & County of Denver, 89 P.3d 507 (Colo. App. 2004), a case in which the Colorado Court of Appeals had delineated a two-part test to determine immunity: whether a tree was "integral" to the public facility and whether the tree was "essential" for the public facility's intended use.

People in Interest of E.G., Colorado Court of Appeals No. 13CA1900 (February 26, 2015)

Holding: The sentencing provisions of §19-2-601, C.R.S., for aggravated juvenile offenders do not include provisions for sentencing an offender who committed the crime as a juvenile, but who is already 21 years of age or older at the time of sentencing.The General Assembly must legislate to fill this gap. Until legislation is passed, a court may apply the provisions of §19-2-601(8), C.R.S., that do not involve participation by the department of human services and must consider all viable sentencing options under subsection (8).

Case Summary: The defendant was convicted of two counts of sexual assault on a child and two pattern of abuse sentence enhancers for sexually assaulting his younger cousins over a two-year period. He was also charged as an aggravated juvenile offender under §19-2-601, C.R.S. The trial court sentenced the defendant, at age 22, directly to the Department of Corrections' (DOC) custody for five years. The defendant appealed his direct sentence to DOC.

The court must sentence an aggravated juvenile offender pursuant to §19-2-601, C.R.S. Pursuant to that section, there are two mechanisms by which an aggravated juvenile offender may be sentenced to DOC custody. First, the department of human services (DHS), upon court order, may transfer an aggravated juvenile offender already in its custody to DOC custody if the juvenile has reached 18 years of age and DHS has certified that the juvenile is no longer benefiting from its programs. To initiate the transfer, DHS must file a request with the court. Second, the court may transfer an aggravated juvenile offender from DHS to DOC custody when the juvenile reaches 20 years and six months of age. Again, DHS initiates the process. The court notifies parties, appoints counsel, and sets a hearing. The court then must order the defendant to submit to a psychological evaluation and risk assessment. At the hearing, the court may transfer the defendant to DOC custody, authorize early release, place the defendant on adult parole, or permit DHS to retain custody over the defendant. The court must consider the statutory factors in sentencing. However, custody of and jurisdiction over a juvenile by DHS must terminate when the juvenile reaches 21 years of age.

In this case, the defendant had not been committed to DHS custody. The first mechanism expressly addresses juveniles already committed to DHS custody and who have been using DHS programs, which did not happen. The second mechanism refers to juveniles already in DHS custody who, at age 20 years and six months, are about to age out of DHS custody. At the time of sentencing, the defendant had not been committed to DHS custody, and, because defendant was already 22 years of age, he had aged out of DHS custody and jurisdiction. Because the statute does not address the defendant's situation, there is a gap in the statute concerning the proper sentencing scheme for aggravated juvenile offenders who are sentenced on or after turning 21 years of age for crimes committed as juveniles and who have therefore already aged out of DHS custody. This gap is for the General Assembly to fill.

Although the gap exists, the Court of Appeals found that it could work within the existing language of the statute, which remains the only statutory provision governing sentencing options for aggravated juvenile offenders, to effectuate the legislature's presumed intent in a manner that provides just, reasonable, and non-absurd results. Therefore, the court looked to the second mechanism in §19-2-601(8), C.R.S., that applies to convicted juveniles who are of a similar age and who are about to age out of DHS custody and held that the sentencing court may apply certain provisions of §19-2-601 (8), C.R.S., which do not require DHS participation, to defendants who fall within the statute's gap. The court lists the specific provisions that may apply. Further, the court held that a sentencing court must consider all viable options for sentencing contained in §19-2-601(8)(b), C.R.S.

While the trial court considered many of the factors listed in the statute to evaluate sentencing options, the record did not include the trial court's reasons for concluding that the defendant was not eligible for early release or adult parole for a period of five years, which are both sentencing options under the statute. Therefore, the court confirmed the defendant's conviction and remanded the case for sentencing.

People v. Wilder, Colorado Court of Appeals No. 12CA0066 (February 26, 2015)

Holding: Sentence vacated in part and case remanded with directions for resentencing.

Case Summary: In Miller v. Alabama, 132 S. Ct. 2455 (2012), the U.S. Supreme Court held that statutes that mandate a sentence of life imprisonment without the possibility of parole are unconstitutional as applied to juvenile offenders because such application constitutes cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. In Colorado, a person convicted of a class 1 felony for an offense committed as a juvenile on or after July 1, 1990, and before July 1, 2006, was sentenced to a mandatory life sentence without the possibility of parole. Several divisions of the Colorado court of appeals have recently addressed the question of how to resentence these offenders in accordance with the Miller decision. (See People v. Banks, 2012 COA 157; People v. Valles, 2013 COA 84; and People v. Gutierrez-Ruiz, 2014 COA 109.)

In the present case, the court of appeals rejects the approaches taken by the other divisions of the court and provides more flexible sentencing directions for the trial court to employ on remand. So long as an individualized sentencing determination is made in accordance with the factors in Miller, the trial court may re-impose the defendant's life sentence without parole, or it may impose a life sentence with a possibility of parole after a specified number of years, or it may impose another sentence that it determines is appropriate for the defendant. In making this sentencing determination, the court should consider (1) the presumptive range that applies to the next lowest level felony: a class 2 offense with a presumptive range of twelve to twenty-four years, and (2) the effect of any applicable extraordinary aggravating factors. The court also states that "this is an area for legislative action."

Shafer v. Metro. Life Ins. Co., United States District Court, D. Colorado. 14-CV-00656-RM-KMT (February 19, 2015)

Holding: While the part of section 10-3-1116 (3), C.R.S., providing for a de novo standard of review for a benefit denial claim, standing alone, would not be preempted by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. section 1001 et seq., the part of subsection (3) providing for a jury trial conflicts with ERISA's remedial structure by altering the judiciary's role. Thus, ERISA preempts, in its entirety, section 10-3-1116 (3).

Case Summary: Plaintiff Marilyn Shafer's deceased husband, Michael Shafer, was a participant in defendant Schlumberger Technology Corporation's (STC) group welfare benefits plan. Defendant Metropolitan Life Insurance Company (MetLife) issued the plan to STC.

MetLife informed plaintiff of its decision to deny benefits over the amount of $873,000.00. Plaintiff appealed this denial of benefits. After it received plaintiff's appeal letter, MetLife upheld its denial, and plaintiff filed suit against defendants. Plaintiff moved for partial summary judgment regarding the proper standard of review under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. section 1001 et seq., for a benefit denial claim. Plaintiff contended that she was entitled to a de novo standard of review and a jury trial under section 10-3-1116 (3), C.R.S.

While the part of section 10-3-1116 (3), C.R.S., providing for a de novo standard of review for a benefit denial claim, standing alone, would not be preempted by ERISA, the part of subsection (3) providing for a jury trial conflicts with ERISA's remedial structure by altering the judiciary's role. Thus, ERISA preempts, in its entirety, section 10-3-1116 (3).

A de novo standard of judicial review does not conflict with ERISA's remedial scheme because de novo review is the default standard in an ERISA case.

But, because an action under section 1132(a) of ERISA is equitable rather than legal in nature, the right to a jury trial offends ERISA's remedial structure.  Section 10-3-1116 (3) offends ERISA because, under Supreme Court precedent, the right to a jury trial serves as an alternate enforcement mechanism outside of ERISA's civil enforcement provisions. The right to a jury trial is foreign to the ERISA statute. Section 10-3-1116 (3) changes the ultimate decision-making entity. It no longer is the province of the federal court to determine whether a benefit denial conflicts with ERISA or the plan's provisions but rather it is that of a jury. Congress did not foresee that a jury would be the ultimate decision-maker. Section 10-3-1116 (3), by providing the right to a jury trial, interjects a procedure that undermines section 1132(a) because it inhibits prompt adjudication by the judiciary. Section 10-3-1116 (3) supplants the remedial structure of section 1132(a). Thus, ERISA preempts section 10-3-1116 (3).

Although the court read section 10-3-1116 (6) as permitting it to sever an entire subsection from the underlying statute, it did not read section 10-3-1116 (6) as permitting it to sever a portion of a subsection, in this case a portion of a sentence, from the underlying statute. Thus, the court was unable to sever the right to a jury trial from the entirety of section 10-3-1116 (3). As such, ERISA preempts section 10-3-1116 (3) in its entirety.