Cases of Note Archive 2023

Anderson v. Griswold, Colorado Supreme Court No. 23SA300 (December 19, 2023)

Holding: The Colorado Supreme Court held the following, but the U.S. Supreme Court reversed in Trump v. Anderson:

1. The "Election Code of 1992" (Code) allows the Petitioners-Appellants/Cross-Appellees (Electors) to challenge President Trump's status as a qualified candidate based on Section 3 of the Fourteenth Amendment to the United States Constitution (Section 3);
2. The Code provides the Electors their only viable means of litigating whether President Trump is disqualified from holding office under Section 3;
3. Congress does not need to pass implementing legislation for Section 3's disqualification provision to attach, and Section 3 is, in that sense, self-executing; [The U.S. Supreme Court held reversed on the grounds that only Congress may enact legislation enforcing Section 3.]
4. Judicial review of President Trump's eligibility for office under Section 3 is not precluded by the political question doctrine;
5. Section 3 encompasses the office of the Presidency and someone who has taken an oath as President. On this point, the district court committed reversible error;
6. The district court did not abuse its discretion in admitting portions of Congress's January 6 Report into evidence at trial;
7. The district court did not err in concluding that the events at the U.S. Capitol on January 6, 2021, constituted an "insurrection.";
8. The district court did not err in concluding that President Trump "engaged in" that insurrection through his personal actions;
9. President Trump's speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was not protected by the First Amendment; and
10. The sum of these parts is that President Trump is disqualified from holding the office of President under Section 3, and because he is disqualified it would be a wrongful act under the Code for the secretary of state to list him as a candidate on the presidential primary ballot.

Case Summary: September, 2023, a group of Colorado electors eligible to vote in the Republican presidential primary—both registered Republican and unaffiliated voters (the Electors)—filed a petition in the District Court for the City and County of Denver (district court), asking the district court to rule that former President Donald J. Trump (President Trump) may not appear on the Colorado Republican presidential primary ballot.

Invoking provisions of Colorado’s "Uniform Election Code of 1992" (Election Code), the Electors requested that the district court prohibit Jena Griswold, in her official capacity as Colorado’s secretary of state (secretary), from placing President Trump’s name on the presidential primary ballot. They claimed that Section 3 of the Fourteenth Amendment to the U.S. Constitution (Section 3) disqualified President Trump from seeking the presidency. More specifically, they asserted that he was ineligible under Section 3 because he engaged in insurrection on January 6, 2021, after swearing an oath as President to support the U.S. Constitution.

After permitting President Trump and the Colorado Republican State Central Committee to intervene, the district court conducted a five-day trial. The court found by clear and convincing evidence that President Trump engaged in insurrection as those terms are used in Section 3. But, the district court concluded, Section 3 does not apply to the President. Therefore, the court denied the petition to keep President Trump off the presidential primary ballot.

The Electors and President Trump appealed to the Colorado Supreme Court regarding various rulings by the district court. The Colorado Supreme Court affirmed in part and reversed in part, and held by a 4-3 vote, as follows:

1. The  Code allows the Electors to challenge President Trump's status as a qualified candidate based on Section Three;
2. The Code provides the Electors their only viable means of litigating whether President Trump is disqualified from holding office under Section 3;
3. Congress does not need to pass implementing legislation for Section 3's disqualification provision to attach, and Section 3 is, in that sense, self-executing; [The U.S. Supreme Court held reversed on the grounds that only Congress may enact legislation enforcing Section 3.]
4. Judicial review of President Trump's eligibility for office under Section 3 is not precluded by the political question doctrine;
5. Section 3 encompasses the office of the Presidency and someone who has taken an oath as President. On this point, the district court committed reversible error;
6. The district court did not abuse its discretion in admitting portions of Congress' January 6 Report into evidence at trial;
7. The district court did not err in concluding that the events at the U.S. Capitol on January 6, 2021, constituted an "insurrection.";
8. The district court did not err in concluding that President Trump "engaged in" that insurrection through his personal actions; and
9. President Trump's speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was not protected by the First Amendment.

Based on its other holdings in the case, the Supreme Court held that President Trump is disqualified from holding the office of President under Section 3, and, because he is disqualified, it would be a wrongful act under the Code for the secretary of state to list him as a candidate on the presidential primary ballot.

The Colorado Supreme Court stated that it was cognizant of the fact that this case presents several issues of first impression. The Colorado Supreme Court recognized that but for its resolution of the Electors’ challenge under the Code, the secretary would be required to include President Trump’s name on the 2024 presidential primary ballot. Therefore, to maintain the status quo pending any review by the U.S. Supreme Court, the Colorado Supreme Court stayed its ruling until January 4, 2024 (the day before the secretary’s deadline to certify the content of the presidential primary ballot). The Colorado Supreme Court specified that if review is sought in the U.S. Supreme Court before the stay expires on January 4, 2024, then the stay remains in place, and the secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the U.S. Supreme Court.

Bella Health & Wellness v. Weiser, United States District Court No. 1:23-CV-00939-DDD-SKC (October 21, 2023)

Holding: The attorney general, state medical board, and state nursing board preliminarily enjoined under the religious and speech rights under the first amendment to the United States Constitution from taking any enforcement action under SB 23-190, its implementing regulations, or the Colorado Consumer Protection Act against:

1. Independent, faith-based Catholic medical center (medical center) offering "life-affirming, dignified health care" to women, men, and children, and all those acting in concert with them based on their provision of abortion pill reversal treatment;
2. Medical center and all those acting in concert with them based on the center's use of the phrases "comprehensive, life-affirming OB-GYN practice"; "comprehensive, life-affirming health care"; "comprehensive healthcare"; "full continuum of care"; and "full-service Family Medicine and OB-GYN medical center" to describe their healthcare practice ; and
3. Medical center and all those acting in concert with them based on the language of center's "Abortion Pill Reversal" webpage.

Case Summary: SB 93-190 declares, among other things, that medication abortion reversal amounts to "unprofessional conduct" under the state's medical licensing laws, subjecting doctors and nurses who administer this treatment to discipline and possible loss of their license to practice. And none of the three boards has in effect a rule finding that medication abortion reversal is a generally accepted standard of practice.

Medical providers who say they have a religious duty to try to help women who wish to try to reverse a medication abortion brought this case arguing that the state's prohibition of this treatment violates their first amendment religious and speech rights under the United States constitution. To protect those rights, they sought a preliminary injunction shielding them from discipline for providing or advertising this procedure.

The state generally cannot regulate an activity if that regulation burdens religious exercise, provides for individualized exceptions, fails to regulate comparable secular activities that raise similar risks, and otherwise targets religious activity. SB 93-190 runs afoul of these first amendment principles. And because it does, the state must come forward with a compelling interest of the highest order to maintain the law. It did not attempt to do so. Therefore, the court granted the medical center and its providers a narrow preliminary injunction.

Darren Patterson Christian Acad. v. Roy, United States District Court No. 1:23-CV-01557-DDD-STV (October 20, 2023)

Holding: The federal district court enjoined the state executives charged with overseeing the universal preschool program from expelling, punishing, withholding funds from, or otherwise disciplining plaintiff Darren Patterson Christian Academy under the universal preschool program on the basis that plaintiff's policies violate the program's statutory or contractual anti-discrimination provisions.

Case Summary: In 2020, Colorado voters approved proposition EE, establishing a dedicated source of funding for statewide preschool. The general assembly enacted implementing legislation in 2022.

The universal preschool program, §§ 26.5-4-201 to 26.5-4-211, is a program that allows certain preschoolers to attend the preschool of their choice for free. Plaintiff Darren Patterson Christian Academy is a private, Christian preschool participating in the program. As a condition of participating, schools like plaintiff must agree not to discriminate on the basis of a number of statutes, including religion, gender, sexual orientation, and gender identity. Pursuant to its faith, however, plaintiff refuses to hire employees who do not share its faith and requires its staff and students to abide by certain policies determined by biological sex rather than gender identity.

After agreeing to participate in the program, plaintiff raised concerns with the two state executives in the Department of Early Childhood charged with overseeing the universal preschool program that plaintiff's religious policies may run afoul of the state's nondiscrimination requirements. But the state executives refused to grant plaintiff an exemption to the nondiscrimination requirements.

Plaintiff sought a preliminary injunction allowing it to continue participating in the program while abiding by its internal policies regarding hiring and student conduct.

The United States District Court for the District of Colorado enjoined the state executives, their officers, agents, servants, employees, and attorneys, and any others who are in active concert or participation with any of them from expelling, punishing, withholding funds from, or otherwise disciplining plaintiff under the universal preschool program on the basis  that plaintiff's policies, as alleged in the verified complaint, violate the program's statutory or contractual antidiscrimination provisions.

Plaintiff was likely to succeed on its claims arising from the first amendment religion clauses. First, the department's nondiscrimination policy likely violates plaintiff's rights by interfering with the school's selection of key employees in accordance with its religious convictions under the "ministerial exception."

Second, plaintiff has the right to expressive association that the state's hiring rules likely violate. The first amendment protects the rights of a group to associate with others in pursuit of educational and religious ends. The freedom to associate with others also includes the freedom not to associate with others if doing so would compromise the associating group's expression of beliefs.

Third, the department's rules also force plaintiff to choose between adhering to religious beliefs and risking exclusion from the program or complying with the department's rules. Plaintiff seeks to hire only coreligionists, and to continue internal policies related to gender distinctions rooted in religious beliefs. These polices violate the department's nondiscrimination standards for participating preschools. Plaintiff asserts its right to participate in a government benefit program without having to disavow its religious character. But the department's policies infringe on that right, which forces plaintiff into the unconstitutional choice of abandoning religiously motivated practices or foregoing otherwise available public funding.

Fourth, the state's rules are likely not neutral and generally applicable. They allow both categorical and individualized exemptions that would undermine the government asserted interests, and thereby triggering strict scrutiny. The department allows categorical exemptions from its admission policies for preschools operated by houses of worship that seek to reserve seats for members of the school's congregation. Because such houses of worship can impose requirements on their "congregations"--including, presumably, the same sorts of rules that plaintiff imposes on its staff and students--"congregations" may be able to exempt themselves from the anti-discrimination rules in this way. There was some disagreement about whether plaintiff can qualify as a "congregation" under this exemption process, but the department refused to provide plaintiff any exemptions for its policies. The department has provided exemptions to others--or expressed a willingness to do so--while denying an exemption for plaintiff. The fact that the state recognizes conditions could exist in which it would exempt a preschool from the quality standards, but does not consider plaintiff's religious convictions sufficiently compelling to do so, triggers strict scrutiny. In light of the unrefuted arguments, the department's policies must survive strict scrutiny. The policies fail that exacting standard. The state has not attempted to proffer a compelling interest of the highest order, nor has it shown that it narrowly tailored its policies to pursue any interest.

In addition, plaintiff was also likely to succeed on the merits of its free speech claim, at least to the extent that the state would require plaintiff and its staff to use a student's or employee's preferred pronouns as a condition of participating in the program.

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

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

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

Gomez v. Walker, Colorado Court of Appeals No. 22CA0463 (September 14, 2023)

Holding: A civil action statute of limitation as is not extended by section 24-4-108 (2), which provides that if the last day of any period is a weekend or legal holiday, the period is extended to the next day which is not a weekend or legal holiday. The Colorado Court of Appeals holds that section 2-4-108(2) and section 13-80-101 are in conflict and rationales that section 13-80-101 is more specific than section 2-4-108(2) and therefore section 13-80-101 prevails over the more general provision of section 2-4-108(2).

Case Summary: Plaintiff, Carmelita Gomez and defendant Ryan Walker were involved in a car crash on June 15, 2016. The applicable three-year statue of limitation period prescribed by section 13-80-101 (1)(n)(I) was set for June 15, 2019 which fell on a Saturday. Gomez filed her complaint on Monday, June 17, 2019 and contests that her complaint was timely due to the extension provided by section 24-4-108(2) which provides that "if the last day of any period is a weekend or legal holiday, the period is extended to the next day which is not a weekend or legal holiday." The district court granted the defendant's motion to dismiss based on the lapse of the statute of limitations. The Colorado Court of Appeals affirms the district court's decision under the rationale that section 2-4-108(2) and section 13-80-101 are in conflict and that section 13-80-101 is more specific than section 2-4-108(2) and therefore section 13-80-101 prevails over the more general provision of section 2-4-108(2). Specifically, the court rationale is that the phrase "...and not thereafter" in section 13-80-101 gives the plain meaning that an action cannot be filed after the three-year anniversary of the cause of action date and holds that section 2-4-108 (2) is a general provision because it facially applies to all periods described in the statute and that section 13-80-101 applies only to the types of actions identified in subsections (1)(a) through (1)(n) of that statute. Therefore, section 2-4-108(2) does not extend the three-year statue of limitation period to Monday, June 17, 2019 and Colorado Court of Appeals affirms the district court's decision to grant the defendant's motion to dismiss based on the lapse of the applicable statue of limitation.

Ward v. State, Colorado Supreme Court No. 23SA150 (August 21, 2023)

Holding: Courts lack subject matter jurisdiction to review referred measure for compliance with single subject requirement unless and until measure has been approved by voters. Additionally, while court has jurisdiction to consider a clear expression challenge to a ballot title, to the extent that any defects in the title are amenable to judicial reformation, petitioner's have not established that ballot title violates clear expression requirement.

Case Summary: Petitioners challenged SB23-303 and its embedded Proposition HH on the grounds that: (1) the measures violate the single subject requirement in Colo. Const. Art. V, §21; and (2) that Proposition HH violates the clear expression requirement in Colo. Const. Art. V, §21.  The Colorado Supreme Court, in a unanimous decision, held that: (1) the courts lack jurisdiction to decide whether measures violate the single subject requirement unless and until the measures are approved by the voters; and (2) while the court has jurisdiction to consider a clear expression challenge to Proposition HH to the extent that any defects are amenable to judicial reformation, the petitioners failed to establish that the Proposition HH ballot title violates the clear expression requirement.

With regard to its holding that courts lack jurisdiction to determine whether a measure violates the single subject requirement until it is approved by the voters, the Court followed its holding in Polhill v. Buckley, 923 P.2d 119 (Colo. 1996), in which it held that "courts lack subject matter jurisdiction to review a legislative referendum for compliance with the single-subject requirement of the Colorado Constitutions unless and until it has been approved by the voters." Id., at 120.

With regard to the clear expression challenge, the petitioners argued that various details of the measure, such as the the rate or amount of property tax reductions proposed in the measure, the connection to HB23-1311 and the TABOR refund mechanism, and the appropriation for rental assistance, were excluded from the title and that the title included "confusing and obfuscating language", in violation of the clear expression requirement. In holding that the petitioner's had not established a violation of the clear expression requirement, the Court reasoned that the constitutional requirement does not require the ballot title to include all of the details of the measure; rather, the title satisfies the clear expression requirement if the legislation is germane, relevant, and appropriate to the general subject set forth in the title, and if the title adequately expresses the legislation's intended purpose and will not cause voter confusion.

303 Creative LLC v. Elenis, United States Supreme Court No. 21–476 (June 30, 2023)

Holding: The first amendment to the United States Constitution prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.

Case Summary: Through her business, 303 Creative LLC, Lorie Smith offered website and graphic design, marketing advice, and social media management services. She decided to expand her offerings to include services for couples seeking websites for their weddings. To clarify her rights, Ms. Smith sought an injunction to prevent the state from forcing her under the public accommodations provision of the Colorado Anti-Discrimination Act (CADA), § 34-34-601 (1), to create wedding websites celebrating marriages inconsistent with her belief that marriage should be reserved to unions between one man and one woman. The federal district court held that Ms. Smith was not entitled to the injunction she sought, and the tenth circuit affirmed.

The United States supreme court reversed the tenth circuit, holding that the first amendment exempts the website-design company from CADA's public accommodations provision that prohibits the company from denying wedding websites to same-sex couples if the company chooses to sell those websites to the public.

Based on the parties' stipulations, the court concluded that the wedding websites Ms. Smith seeks to create qualify as pure speech protected by the first amendment under the court's precedents. And the wedding websites Ms. Smith seeks to create involve her speech. While her speech may combine with a couple's in a final product, an individual does not forfeit constitutional protection simply by combining multifarious voices in a single communication.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

State v. Hill, Colorado Supreme Court No. 22SC119 (June 5, 2023)

Holding: A fisherman is not the proper party to quiet title to riverbed alleged to be owned by the state. State is the only party that may pursue ownership interest. Further, the fisherman did not have standing to bring a claim for declaratory relief that he was not trespassing by fishing in the riverbed.

Case Summary: Hill claims a right to fish along a riverbed, but owners of property that abuts the riverbed claim he is trespassing on their property. Hill claims that he has right to fish that section of the Arkansas river because the state owns the riverbed. Hill claims that the state owns the riverbed because of federal law concerning the equal footing doctrine, which give state's ownership of the beds of waterways that were navigable at statehood. All courts agree that only the state, as the purported owner, may pursue a quiet title claim. Court of appeals found that Hill could still pursue a declaratory order that he was not trespassing, but the Supreme Court held that Hill lacked standing to bring such a claim.

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

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

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