Cases of Note Archive 2013

In re Interrogatory Propounded by Governor, Colorado Supreme Court No. 13SA214 (October 21, 2013)

Holding: The prior participation requirement of Article XXI, Section 3, of the state constitution (which provides that a vote for a successor candidate in a recall election does not count "unless the voter also voted for or against the recall of such person sought to be recalled from said office" conflicts with the First and Fourteenth Amendments to the United States Constitution.

Case Summary: In June 2013, citizens in Pueblo and El Paso Counties certified petitions to recall State Senator Angela Giron and State Senator John Morse. Governor John Hickenlooper set a September 10 recall election for both Senate seats. These recall elections were the first in Colorado's history for members of the General Assembly. On August 23, 2013, the Governor, pursuant to Article VI, Section 3, of the Colorado Constitution, submitted the following Interrogatory to the Colorado Supreme Court: "Colo. Const. art. XXI, § 3 requires an elector who wishes to vote for a successor candidate in a recall election to also cast a ballot on the recall issue. Is this requirement consistent with the First and Fourteenth Amendments to the United States Constitution?"

The Court exercised its original jurisdiction and issued an order answering the Interrogatory in the negative. Specifically, the Court found that the so-called "prior participation requirement" of Article XXI, Section 3,conflicts with voters' First Amendment associational rights by unconstitutionally compelling voters to speak on the recall question. The Court reasoned that, because the First Amendment protects the voters' right to refrain from speaking, and the prior participation requirement commands the opposite, that requirement is plainly unconstitutional. 

With regard to the Fourteenth Amendment to the United States Constitution, the Court held that the prior participation requirement effectuates a severe limitation on citizens' fundamental right to vote by completely invalidating a voter's otherwise legal ballot for a successor candidate if the voter simply fails to vote or chooses not to vote on the wholly distinct recall issue. The Court found that no compelling, or even rational, justification exists to nullify a voter's entire ballot simply because he or she refrains from answering the initial recall question.

People v. Back, Colorado Court of Appeals No. 11CA1875 (August 1, 2013)

Holding: A lifetime supervision sex offender is subject to section 17-22.5-403 (8) (b), C.R.S. when his or her parole is revoked, not section 17-2-103 (11) (b), C.R.S.

Case Summary: Defendant pled guilty to one count of sexual assault on a child and the court sentenced him to 10 years to life of sex offender intensive supervised probation. After violating the conditions of probation twice, the court resentenced the defendant to two years to life in the department of corrections. The defendant was released on parole. The defendant violated the conditions of his parole and his parole was revoked. The parole board returned the defendant to the department of corrections for the remainder of his sentence, the rest of his natural life, as allowed under section 17-22.5-403 (8) (b), C.R.S. Defendant argued that he should have only been returned for 180 days under section 17-2-103 (11) (b), C.R.S., which applies generally to parole revocations.

The Court of Appeals found that section 17-2-103 (11) (b), C.R.S., and section 17-22.5-403 (8) (b), C.R.S., conflict when applied to the parole revocation for a sex offender who is subject to lifetime supervision. The Court found there was a conflict since both provisions could apply to a sex offender's parole revocation and result in different outcomes. Section 17-2-103 (11) (b), C.R.S., provides multiple placement options for an offender when parole is revoked, however section 17-22.5-403 (8) (b), C.R.S.,only permits a lifetime supervision sex offender to be placed in the department of corrections. Each section also differs in the length of the revocation. Under section 17-2-103 (11) (b), C.R.S., the length of revocation could be a maximum of 180 days depending on the revocation basis. But, section 17-22.5-403 (8) (b), C.R.S., allows revocation up to the natural life of the offender. The Court of Appeals determined that section 17-22.5-403 (8) (b), C.R.S., is the more specific provision and therefore it applies to the revocation of a lifetime supervision sex offender's parole. The legislative history of section 17-22.5-403 (8) (b), C.R.S., also supports this conclusion. The bill sponsor's statements show the legislature intended that a lifetime supervision sex offender could be subject to a life sentence upon a parole revocation.

Strudley v. Antero Res. Corp., Colorado Court of Appeals No. 12CA1251 (July 3, 2013)

Holding: Colorado law prohibits "Lone Pine" orders, which courts in jurisdictions outside Colorado have issued to reduce discovery burdens on courts and defendants in complex mass tort and toxic tort cases involving multiple parties. Such orders require a plaintiff to present prima facie evidence supporting his or her claims after initial disclosures, but before other discovery commences, or risk having his or her case dismissed.

Case Summary: William and Beth Strudley filed a toxic tort case against defendants, Antero Resources Corporation, Antero Resources Piceance Corporation, Calfrac Well Services Corp., and Frontier Drilling LLC, ("defendants"), alleging that defendants' natural gas drilling operations had contaminated the air, water, and ground near their home and caused property damage and personal injuries. The parties filed initial disclosures pursuant to Colorado Rule of Civil Procedure ("C.R.C.P.") 26, but shortly thereafter defendants made a motion requesting a "Lone Pine" order that would require the Strudleys to present prima facie evidence to support their claims before full discovery could commence. "Lone Pine" orders, named for the 1986 New Jersey Superior Court case in which a court first issued one, have been issued by courts in jurisdictions outside Colorado to reduce potential burdens on defendants and the court in complex cases, particularly complex mass tort and toxic tort cases involving multiple parties, where the discovery process is likely to be burdensome and the plaintiff's ability to sustain his or her burden of proof is questionable. The trial court granted defendants' motion and issued a modified "Lone Pine" case management order that, among other things, required the Strudleys to provide specified types of expert evidence in support of their claims.

The Strudleys provided neither an expert opinion that concluded that the alleged property damage or personal injuries were directly caused by the companies' conduct, nor expert evidence documenting alleged physical injuries through medical examination. Defendants moved to dismiss the Strudleys' claims pursuant to C.R.C.P. 37 or, in the alternative, for summary judgment. In response, the Strudleys asserted that their submissions complied with the "Lone Pine" order and that dismissal was not appropriate. The Strudleys further argued that issues of material fact existed that precluded a grant of summary judgment. The trial court dismissed all of the Strudleys' claims with prejudice, finding that the Strudleys had failed to present the required prima facie evidence, specifically in relation to causation. The Strudleys appealed, arguing that Colorado law prohibits "Lone Pine" orders. 

The Colorado Court of Appeals reversed the dismissal of the Strudleys' claims and held that Colorado law prohibits "Lone Pine" orders and that the trial court erred as a matter of law when it issued a "Lone Pine" order. The Court of Appeals cited Colorado Supreme Court precedent that held that a trial court abuses its discretion by requiring a showing of a prima facie case before allowing discovery of documents containing trade secrets, Curtis, Inc. v. Dist. Court, 526 P.2d 1335, 1339 (Colo. 1974), and that nothing in the Colorado Unfair Practices Act required a prima facie showing, Direct Sales Tire Co. v. Dist. Court, 686 P.2d 1316, 1319 (Colo. 1984). The Court of Appeals read "these cases to stand for the proposition that a trial court may not require a showing of prima facie case before allowing discovery on matters central to a plaintiff's claim - as opposed to matters relating to punitive damages or other secondary matters."

While acknowledging that recent amendments to the Colorado Rules of Civil Procedure were intended to create a "differential case management/early disclosure/limited discovery system", the Court of Appeals did not read those revisions to be so substantial as to effectively overrule the holdings in Direct Sales Tire Co. and Curtis. The Court of Appeals also noted that the Colorado version of C.R.C.P. 16 does not include the language relied upon by federal courts when issuing "Lone Pine" orders, found that exiting procedures under the Colorado Rules of Civil Procedure sufficiently protect against meritless claims, and concluded that a "Lone Pine" order was therefore not required solely for that protective purpose. The Court of Appeals concluded that Lone Pine orders are prohibited and that by issuing a "Lone Pine" order, the trial court had unduly interfered with the Strudleys' opportunity to prove their claims.

On April 7, 2014, the Colorado Supreme Court granted certiorari on this case.

People v. Vigil, Colorado Court of Appeals No. 10CA1481 (July 3, 2013)

Holding: Trying a defendant for a misdemeanor that is elevated to a felony through application of the habitual domestic violence offender statute, without the procedural protections that accompany a felony trial, violates the Colorado constitution.

Case Summary: The defendant, Eli Manuel Vigil, was charged in two separate criminal cases with multiple misdemeanor offenses. In both cases, at least one of the misdemeanors had an underlying factual basis of domestic violence. Because Vigil had been previously convicted of other misdemeanor charges that had an underlying factual basis of domestic violence, the prosecutor moved to have Vigil adjudged as an habitual domestic violence offender (HDVO) under section 18-6-801 (7), C.R.S. This section, provides that, if the court finds that the defendant is an HDVO, the defendant is convicted of a class 5 felony, even if the charge is a misdemeanor, and sentenced to the presumptive range for a class 5 felony. The court found that Vigil was an HDVO and sentenced him as a class 5 felony offender to two concurrent three-year terms.

Vigil appealed, arguing that the HDVO statute violated his statutory and constitutional rights. Because Vigil was charged with misdemeanors, his case was tried in county court without the procedural guarantees that accompany a felony trial, including the right to a 12-person jury, which is required by the Colorado Constitution. The Court of Appeals agreed and remanded the case to a jury trial in district court.

The Court of Appeals writes that application of the HDVO statute in this case constitutes structural error, meaning that it "affects the framework in which the trial proceeds and requires  automatic reversal because  it renders the trial fundamentally unfair." Even though Vigil was tried for a misdemeanor, through application of the HDVO statute he was subject to a potential felony conviction and sentence. Therefore he was entitled to a 12-person jury, "which is guaranteed to defendants facing felony conviction and sentencing in the Colorado courts."

Indus. Claim Appeals Office v. Colo. Dept. of Labor & Employment, Colorado Supreme Court No. 12SC49 (July 1, 2013)

Holding: The Colorado Supreme Court reverses the Court of Appeals and holds that the offset provision in the unemployment compensation (UI) statutes (section 8-73-110 (3) (a) (I) (B), C.R.S.) requires a dollar-for-dollar reduction in UI benefits if the claimant is receiving pension benefits from the same employer, regardless of whether that employer contributed pension benefits during the "base period" on which the UI benefits are calculated.  In this respect the Supreme Court finds that Colorado's UI law differs from the corresponding federal provision in the Federal Unemployment Tax Act (FUTA) due to the conspicuous absence of the qualifying phrase "during the base period."

Case Summary: Kathleen Hopkins worked for the Colorado Department of Labor and Employment at two separate times.  During her first period of employment, the Department made regular contributions to its retirement fund on her behalf, and, upon her retirement, Ms. Hopkins began drawing a pension. Later, she returned to work at the Department until her employment was terminated for unspecified reasons.

During this second period of employment, the Department did not contribute to the retirement fund on Ms. Hopkins' behalf, and she received no additional pension benefits attributable to that period.  However, she applied for, and was awarded, UI benefits due to her involuntary separation from employment.

The amount of UI benefits was calculated according to Ms. Hopkins' earnings during the "base period" of her second period of employment with the Department.  But that amount was less than she was already receiving in retirement benefits.  Section 8-73-110 (3) (a) (I) (B), C.R.S., requires UI benefits to be offset by "the prorated weekly amount of a pension, retirement or retired pay ... contributed to by a base period employer."  The Industrial Claim Appeals Office (ICAO) found that this language precluded her from receiving any UI benefits, since the Department (her "base period employer") had contributed to her retirement.

Ms. Hopkins appealed to the Colorado Court of Appeals, which reversed the finding of the ICAO on the basis that the offset provision implicitly did not apply if, as here, the base period employer's contribution to the retirement fund had not occurred during the base period.

The Supreme Court reversed the Court of Appeals, effectively reinstating the ICAO's order.  The Supreme Court reasoned that, if the offset provision had been intended to apply only if the base period employer had made pension contributions during the base period, it would have contained the phrase "during the base period." In the absence of any such temporal limitation, therefore, the plain language of the offset provision required that Hopkins forgo UI benefits.

The Supreme Court also acknowledged that Colorado's UI statute was patterned on, and is complementary to, FUTA, under which an offset is made only when the base period employer makes retirement contributions "after the beginning of the base period." (26 U.S.C. §3304(a)(15).) But instead of citing this fact in support of Hopkins' claim, as the Court of Appeals had done, the Supreme Court drew a contrast between the language of the two statutes and found that the General Assembly had clearly not intended Colorado's offset provision to operate in the same way as the FUTA offset provision.

Lobato v. State of Colo. Bd of Edu., Colorado Supreme Court No. 12SA25 (May 28, 2013)

Holding: Colorado's public school financing system does not violate the Colorado Constitution.

Case Summary: Lobato v. State of Colo. Bd. of Edu., 2013co30 (May 28, 2013).  The Supreme Court reverses the Denver District Court's finding that the public school financing system is unconstitutional.

As a threshold matter, applying the law of the case doctrine, the Supreme Court affirmed its decision in Lobato v. State (218 P.3d 358 (Colo. 2008)) ("Lobato I") that the plaintiffs' claims are justiciable. The Court held that determining whether the state's public school financing system is rationally related to  the constitutional mandate of the General Assembly to provide a "thorough and uniform system of public education" does not infringe on the legislature's policy-making authority and is therefore not a nonjusticiable political question.

With respect to the plaintiffs' claim that the public school financing system contained in sections 22-54-101 to 22-54-135, C.R.S., violates article IX, section 2 of the Colorado Constitution ("the Education Clause"), the Court initially defined the phrase "thorough and uniform."  The Supreme Court held that "the phrase thorough and uniform in the Education Clause describes a free public school system that is of a quality marked by completeness, is comprehensive, and is consistent across the state." Further, the Court held the Education Clause of the Colorado Constitution "simply establishes the constitutional floor upon which the General Assembly must build its education policy."

The Court then applied the "rational basis test" that the Court delineated in Lobato I.  Presuming that the statutes that make up the public school financing system are constitutional, the Court determined that it must uphold the legislation unless the plaintiffs prove beyond a reasonable doubt that the statutes are not rationally related to the General Assembly's mandate under the Education Clause to provide a "thorough and uniform system of public education."  The Court held that Colorado's public school financing system is rationally related to the "thorough and uniform" mandate of the Education Clause because it funds a public education system that is of a quality marked by completeness, is comprehensive, and is consistent across the state.  In doing so, the Court highlighted the General Assembly's creation of a single statutory framework that allows the state to calculate every school district's total program, describes the sources of state and local revenue that make up the calculated amounts, and applies the public school financing system uniformly to all school districts in the state.  While the Court recognized that the public school financing system may not provide an optimal amount of money for the public schools, the statutory framework, itself, is constitutional.

With respect to the plaintiffs' claim that the public school financing system violates article IX, section 15 of the Colorado Constitution ("the Local Control Clause"), the Court held that the public school financing system is constitutional because the system gives school districts control over locally raised funds and therefore over "instruction in the public schools."  Citing prior case law, the Court affirmed that a dual-funded (local and state moneys) public school financing system is constitutional so long as it allows the school districts to retain control over how they spend locally generated tax revenue.  The Court noted that, even though the trial court found that school districts use a substantial portion of their locally raised funds to help students achieve state standards, nothing in the public school financing system itself requires a particular allocation of funds.  Further, the financing system also provides mill levy overrides and bonded indebtedness mechanisms that authorize school districts to raise additional revenue beyond their total program, thereby allowing the school districts to exert additional local control over instruction by generating and expending supplemental local funds.  While "disparities in wealth" may impair a low-wealth school district's ability to pass mill levy overrides or bonded indebtedness and, thus, its ability to exert local control, this does not invalidate the entire public school financing system under the Local Control Clause. Therefore, because the public school financing system does not affirmatively require school districts to use their locally raised revenue in a particular manner, the statutory system is constitutional. 

In conclusion, the Court states that the Court's job is not to determine whether a better financing system could be devised by the General Assembly but whether the current public school financing system passes constitutional muster.  In entering its decision that the public school financing system is constitutional, the Court states that it satisfies its duty to "say what the law is" without unduly infringing upon the policy-making power of the legislature, thereby affording the General Assembly the opportunity to reform Colorado's education policy, including its public school financing system.

People v. Zubiate, Colorado Court of Appeals No. 11CA1939 (May 9, 2013)

Holding: The court held that a person could be convicted for two offenses based upon the same conduct: driving under restraint, §42-2-138, C.R.S., and driving after revocation, §42-2-206, C.R.S. 

Case Summary: The court held that a person could be convicted of driving under restraint, §42-2-138, C.R.S., and driving after revocation, §42-2-206, C.R.S. A revocation is a type of restraint. So if a person is convicted of both offenses because of a revoked license, it looks as if the two provisions forbid the same conduct.

This is matters legally because the double jeopardy clauses of the United States and Colorado constitutions prohibit a person from being "twice put in jeopardy" for the same conduct. One way a person could be put in double jeopardy is to be convicted, based on the same conduct, of two crimes that have the same elements. 

In 1992, an appellate court held that a person could not be convicted under these two statutes for the same conduct. See People v. Rodriguez, 849 P.2d 799 (Colo. App. 1992). In this case, the court specifically stated "We disagree with Rodriguez and decline to follow it." The court then upheld the convictions of the defendant under both of these statutes.

The court reasoned that one provision applies to "operating" a motor vehicle and the other to "driving" a motor vehicle. The court argued that "operating" is a broader term than "driving." Further, one provision applies on "highways on this state" and the other provision applies in "this state." Again, the court argued that "highways" doesn't include private ways. Therefore, the elements were different enough to apply to different conduct.

Town of Milliken v. Kerr-McGee Oil & Gas Onshore LP, Colorado Court of Appeals No. 12CA1618 (May 9, 2013)

Case Summary: The Town of Milliken adopted a land use code provision that imposed a fee on oil and gas wells and associated equipment and structures to pay for safety and security inspections of oil and gas facilities. The town sued an oil and gas operator to collect the fee. The operator moved for summary judgment, arguing that that fee violated a prohibition on such fees in the state oil and gas statute. The trial court granted the motion and dismissed the case.

On appeal, the Court of Appeals upheld the dismissal, finding that the town lacked statutory authority to impose the fee. Section 34-60-106 (11) (a) (II), C.R.S., gives the Colorado oil and gas commission authority to promulgate rules "to protect the health, safety, and welfare in the conduct of oil and gas operations." Section 34-60-106 (15), C.R.S., prohibits local government from imposing inspection fees "with regard to matters that are subject to . . . regulation . . . by the commission". Because the safety and security of oil and gas facilities is subject to regulation by the commission under section 34-60-106 (11) (a) (II), C.R.S., the plain language of section 34-60-106 (15), C.R.S., prohibits a municipality from imposing a fee to conduct safety and security inspections at oil and gas facilities.

Coats v. Dish Network, L.L.C., Colorado Court of Appeals No. 12CA0595 (April 25, 2013)

Holding: Because plaintiff's state-licensed medical marijuana use was, at the time of his termination, subject to and prohibited by federal law, the court of appeals held 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 was discriminatory.

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 an employer from discharging 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 criiminal 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: "While we agree that the general purpose of section 24-34-402.5 is to keep an employer's proverbial nose out of an employee's off-site off-hours business, we can find no legislative intent to extend employment protection to those engaged in activities that violate federal law." Not allowing a Colorado employer to terminate "an employee for federally prohibited off-the-job activity is of sufficient policy import that we cannot infer, from plain statutory language to the contrary and silence in the legislative discussions, the legislative intent to do just that."

Dunlap v. Colo. Dept. of Corr., Colorado Court of Appeals No. 12CA0955 (April 25, 2013)

Holding: Under section 17-1-111, C.R.S., regulations for implementing a death sentence are not subject to the Administrative Procedures Act.

Case Summary: The Executive Director of the Department of Corrections issued regulations establishing the procedures to implement a death sentence. Nathan Dunlap, an inmate on death row, filed suit alleging that the regulations are void because  the Executive Director did not comply with the rule-making procedures of section 24-4-103, C.R.S., when promulgating the regulations. Section 17-1-111, C.R.S., excludes regulations that relate "to the placement, assignment, management, discipline, and classification of inmates", as authorized in title 17, C.R.S., from the requirements of section 24-4-103, C.R.S. The Court of Appeals agreed with the Executive Director that section 17-1-111, C.R.S., applies to regulations that establish the procedures to implement a death sentence, even though implementing a death sentence is not specifically authorized in title 17, C.R.S. So, the regulations are not subject to the requirements of section 24-4-103, C.R.S.

People v. Madden, Colorado Court of Appeals No. 09CA2081 (April 25, 2013)

Case Summary: The Colorado Court of Appeals decided two cases addressing whether a defendant whose conviction is overturned on appeal is entitled to a restitution refund. In both cases, the court of appeals noted that the issue lends itself to legislative action and encouraged the General Assembly to consider the issue.

In the first case, People v. Nelson, Nelson appealed her convictions; the court of appeals overturned the convictions and granted Nelson a new trial. Nelson was acquitted of all charges at her retrial. In the second case, People v. Madden, Madden was convicted of two offenses at trial. On appeal, the Colorado Supreme Court overturned one of the two convictions. Next, Madden sought post-conviction relief related to the other conviction arguing that his attorney was constitutionally ineffective. The court considering the post-conviction relief request granted Madden's motion and vacated the remaining conviction. The prosecution decided not to appeal the postconviction order or retry the case.

In both cases, the trial courts denied the defendants a restitution refund on retrial. But the court of appeals determined that the defendants are entitled to seek a refund of the restitution since the defendants were not reconvicted of the charges on remand. The defendants are entitled to seek a refund in the criminal cases without having to file a separate proceeding.

The court of appeals noted that the cases included myriad questions, some of which contain difficult public policy questions that may be appropriate for legislative consideration. One of the circumstances that makes this issue difficult is that the state may have to ask for the restitution back from the victim if the state has already distributed the restitution. In the Madden case, the trial court refused to refund the restitution because "[i]t wasn't anything that [the victim] did wrong." The court reasoned that the victim should not lose because the defendant's attorney was constitutionally ineffective. The court of appeals in the Nelson case also noted that the standard for awarding restitution is not as high as obtaining a conviction, but there still must be a conviction. So it is possible to award restitution related to acts that were not charged in the criminal case as long as the uncharged acts are related to the charged acts on which the conviction is based.

Independence Inst. v. Gessler, United States District Court No. 10-CV-00609-PAB-MEH (March 29, 2013)

Holding: The limitation in section 1-40-112 (4), C.R.S., on per signature compensation for initiative or referendum petition circulators violates the first amendment to the United States constitution. The limitation severely restricts the political speech rights of petition proponents by making it substantially more difficult for them to get their petitions on the ballot because the limitation is likely to deter most itinerant professional petition circulators from working in the state, prevent the hiring of low-volume professional circulators, and significantly increase the costs of signature gathering campaigns. Also, there is no evidence that the limitation protects the integrity of the initiative and referendum process by reducing incentives for fraud or ensuring that a higher percentage of signatures collected are valid.

Case Summary: Petition circulators, non-profit organizations, and petition entities (plaintiffs) involved in the initiative and referendum process in Colorado filed an action under 42 U.S.C. § 1983 in the United States District Court for the District of Colorado (district court) that challenged the constitutionality of Colorado's limitation, set forth in section 1-40-112 (4), C.R.S., on per-signature compensation for petition circulators on free speech grounds under the First Amendment to the United States Constitution (first amendment).

Section 1-40-112 (4), C.R.S., makes it "unlawful for any person to pay a circulator more than twenty percent of his or her compensation for circulating petitions on a per signature or petition section basis." As a practical matter, the statute requires that circulators receive most of their compensation in the form of hourly payments.

Plaintiffs claimed that the limitation on per signature compensation for petition circulators severely infringed their first amendment rights to free speech by decreasing the pool of professional circulators who are necessary for successful signature gathering campaigns and increasing the cost of signature gathering efforts, thus making it more difficult to qualify measures for the statewide ballot. Plaintiffs also claimed that there was no evidence that the limitation would protect the integrity of the initiative and referendum process by reducing the rate or incidence of fraud in the initiative and referendum signature gathering process.

After considering the evidence presented at trial, the district court found that the limitation on per signature compensation for petition circulators was likely to deter most itinerant professional petition circulators, the most efficient and effective circulators, from working in the state, prevent the hiring of low-volume professional circulators, and significantly increase the cost of signature gathering campaigns. The court also found that the cost increase resulting from the limitation would reduce the chances of underfunded proponents succeeding in the initiative and referendum process and that there was no evidence that the limitation would reduce the rate or incidence of fraud in the signature gathering process.

In light of its factual findings, the district court concluded that because the limitation on per signature compensation for petition circulators prevented initiative and referendum proponents from using individuals who would most effectively convey their message to the public to collect signatures, section 1-40-112 (4), C.R.S., imposed a severe burden on such proponents' first amendment rights, which required the court to use the strict scrutiny standard of review to determine the constitutionality of the statute. Based on this standard of review, and given the availability of other effective and less burdensome statutory tools to safeguard the state's interest in reducing fraud and the number of invalid petition signatures, the district court concluded that section 1-40-112 (4), C.R.S., violated the first amendment. Accordingly, the district court permanently enjoined the secretary of state from enforcing section 1-40-112 (4), C.R.S., and any ancillary statute that enforced it, namely, sections 1-40-135 and 1-40-121, C.R.S., to the extent that those sections apply to the limitation on per signature compensation.

Jordan v. Safeco Ins. Co. of Am., Inc., Colorado Court of Appeals No. 12CA0934 (March 28, 2013)

Case Summary: In 2009, Philip and Roberta Jordan were involved in a car accident with a minor driver, J.F. The Jordans were injured and they sued J.F. The Jordans settled their claims against J.F. for $60,000 and $38,500 respectively. The Jordans sought underinsured motorist benefits from their insurance carrier, Safeco, to cover the difference between the settlement amount and the $100,000 per person limit of J.F.'s liability insurance coverage. On appeal, the Jordans stipulated that neither of their injuries exceeded $100,000.

The court determined that, under the Jordans' insurance contract and the statute concerning underinsured motorist coverage, as amended in 2007, the Jordans were not entitled to receive more than the settled amount they received from J.F. Before the statute was amended, it required an insurance carrier to pay the amount of damages sustained by the insured in excess of any amount paid to the insured by the tortfeasor in settlement of a claim or by judgment of a court. But, as amended, the statute only requires an insurance carrier providing underinsured motorist coverage to pay the amount of damages sustained by the insured in excess of the other driver's legal liability coverage. Therefore, the Jordans would have been entitled to underinsured motorist coverage from Safeco only if their injuries exceeded the $100,000 per person limit of J.F.'s liability coverage.

Taxpayers for Pub. Educ. v. Douglas Cnty Sch. Dist., Colorado Court of Appeals No. 11CA1856 (February 28, 2013)

Holding: The Douglas County School District's Choice Scholarship Program (CSP) does not violate the religion or public appropriations provisions of the Colorado Constitution and plaintiffs do not have standing to assert claims relating to the enforcement of the Public School Finance Act.  The trial court's entry of a permanent injunction against implementation of the CSP is reversed.

Case Summary: The Court of Appeals reversed the trial court's entry of a permanent injunction to prohibit implementing the Choice Scholarship Program (CSP), a program designed to assist Douglas County students with tuition at participating private schools.  The scholarships equal 75% of district per pupil revenue with the district retaining up to 25% for administrative expenses.  The district created a charter school to authorize and distribute the scholarships.  To qualify, a student must reside in Douglas County and must have been enrolled in a Douglas County school the year before applying for the CSP.

As a preliminary matter, the Court held that the plaintiffs do not have standing to pursue private claims to enforce the Public School Finance Act (the Act), section 22-54-101, et seq., C.R.S., because the Act expressly commits enforcement of its provisions to the State Board of Education (SBE) and provides the SBE with enforcement mechanisms.  A private right of action would be inconsistent with the purposes of the Act.  Also, while legal precedent has recognized taxpayer standing with respect to constitutional violations, the test for standing under a statute is more rigorous, and the Court found no authority for asserting taxpayer status in the context of enforcing a statute.

With respect to the various claims under the Colorado Constitution, the Court determined that an action taken by a school district board of education, as a legislative body and a political subdivision of the state, is entitled to a presumption of constitutionality. This presumption requires the Court to uphold the CSP absent proof beyond a reasonable doubt that the program is unconstitutional and that a clear and unmistakable conflict exists between the CSP and a provision of the Colorado Constitution.

Relying primarily on Lujan v. Colo. State Bd. of Educ., 649 P.2d 1005 (Colo. 1982), the Court found that Article IX, Section 2 of the Colorado Constitution does not prevent a school district from providing educational opportunities to its students in addition to and different from the thorough and uniform system required by the Constitution, and a school district may expend public funds to provide these opportunities. The district designed the CSP to provide choice to students and their parents, to provide individualized education opportunities, to improve educational performance through competition, and to obtain a higher return on investment for educational spending.

Further, relying primarily on Americans United for Separation of Church and State Fund, Inc., v. State, 648 P.2d 1072 (Colo. 1982) and Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008), the Court determined that the CSP does not violate Art. IX, Section 4 of the Colorado Constitution because the CSP is neutral in that the purpose of the CSP is to aid students and parents, not sectarian institutions.  Also, the CSP is available to all district students and to any private school that meets neutral eligibility criteria, without impermissible inquiry into or judgments related to the pervasiveness of the school's religious beliefs.  Also, a student is not compelled to participate in the CSP or to attend any particular participating school.  A student's attendance at religious services happens as a result of a parent's voluntary choices.  As such, the CSP also does not violate Art. IX, Section 8 of the Colorado Constitution because that provision applies to public educational institutions and public schools, and private schools are not transformed into public schools through the use of a public charter school to facilitate the CSP.  Religious requirements of the participating private school are not imputed to the charter school and are, therefore, not the result of government action.

Additionally, the CSP does not violate Art. IX, Section 7 of the Colorado Constitution.  Citing Americans United and Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the Court found that, since the CSP is intended to benefit students and their parents, any benefit to the participating school is incidental and does not constitute aid to an institution within the meaning of the constitutional provision.  The Court made no distinction in this analysis between institutions of higher education and elementary and secondary schools.

Finally, the CSP does not violate Article V, Sections 32 and 34 of the Colorado Constitution, which restrict appropriations to institutions that are not under the control of the state and to sectarian institutions.  Once the Department of Education receives appropriations made by the General Assembly and distributes those appropriations to school districts, ownership of those moneys passes to the school districts, and the school districts' expenditures do not constitute an appropriation by the General Assembly.  Further, citing Americans United, the Court found that the benefit of the CSP is to the student, not the institution, and the aid serves a discrete and particularized public purpose.

Because plaintiffs failed to carry their burden of proving unconstitutionality beyond a reasonable doubt and the plaintiffs do not have standing to assert a claim under the Act, the appellate court reversed the order enjoining the implementation of the Act.  In April, the plaintiffs filed for review by the Colorado Supreme Court (2013SC233).

People v. Houser, Colorado Court of Appeals No. 09CA2147 (January 31, 2013)

Case Summary: The Colorado court of appeals found a statutory conflict between section 18-1-503.5 (1), C.R.S., and section 18-7-407, C.R.S. Section 18-1-503.5 (1), C.R.S., is a general provision, applicable to the entire criminal code, that states:

If the criminality of conduct depends on a child being younger than eighteen years of age and the child was in fact at least fifteen years of age, it shall be an affirmative defense that the defendant reasonably believed the child to be eighteen years of age or older. This affirmative defense shall not be available if the criminality of conduct depends on the defendant being in a position of trust.

Section 18-7-407, C.R.S., is limited to child prostitution crimes. It states:

In any criminal prosecution under sections 18-7-402 to 18-7-407, it shall be no defense that the defendant did not know the child's age or that he reasonably believed the child to be eighteen years of age or older.

The court of appeals found the sections conflict because one provision allows a reasonable belief defense and the other expressly forbids it.

The defendant, Houser, was charged with patronizing a prostituted child. Houser sought to raise the affirmative defense that he had a reasonable belief that the prostitute was 18 years of age or older, arguing that section 18-1-503.5, C.R.S., permitted this defense. The trial court ruled that section 18-7-407, C.R.S., precluded the defense. The Court of Appeals affirmed the trial court's decision finding there was no "clear and unmistakable" intent by the General Assembly that the general provision in section 18-1-503.5 (1), C.R.S., would control over the specific provision in section 18-7-407, C.R.S., even though section 18-1-503.5, C.R.S., was enacted after section 18-7-407, C.R.S.

Bedor v. Johnson, Colorado Supreme Court No. 10SC065 (January 22, 2013)

Case Summary: Reversing the Court of Appeals, the Supreme Court held that the trial court abused its discretion when it tendered the "sudden emergency" jury instruction. Additionally, the Supreme Court abolished the sudden emergency doctrine, Trial courts may no longer give the sudden emergency jury instruction in negligence cases, because the instruction's potential to mislead the jury greatly outweighs its minimal utility. 

The Respondent, Johnson, slid on a patch of ice, lost control of his vehicle, and collided with Petitioner, Bedor. Both Bedor and Johnson were injured. Bedor filed a negligence action against Johnson. Johnson asked that the jury be instructed on the sudden emergency doctrine, arguing that he acted reasonably in light of the sudden emergency the ice presented. Bedor's counsel objected. The instruction was tendered, and the jury found that although Bedor suffered injuries and damages as a result of the accident, Johnson was not negligent and therefore did not cause Bedor's injuries and damages. The jury awarded Johnson approximately $34,000 in costs. Bedor appealed, and the Court of appeals affirmed the jury verdict holding that the sudden emergency instruction was properly tendered because there was competent evidence that Johnson was confronted with a sudden or unexpected occurence--the ice patch--that was not of his own making. The Supreme Court granted certiorari on the issue of whether a driver who loses control of a vehicle in winter driving conditions, crosses into oncoming traffic, and collides with a vehicle is entitled to the sudden emergency jury instruction.  The Court also requested supplemental briefing on whether a separate, sudden emergency jury instruction should continue to be given in negligence cases.

CJI-Civ. 4th 9:11 states: "A person who, through no fault of his or her own, is placed in a sudden emergency, is not chargeable with negligence if the person exercises that degree of care that a reasonably careful person would have exercised under the same or similar circumstances." Johnson lost control of the car when he hit the patch of ice. Unlike other cases that evoke the sudden emergency doctrine, where drivers took deliberate action when confronted with an unexpected occurrence, the Supreme Court found that Johnson's loss of control of the vehicle indicates a complete lack of such a deliberate action. In addition, Johnson testified that he was aware that ice frequently formed on that part of the road and inconclusive evidence showed that Johnson's pre-accident conduct, potential drinking or speeding, may have contributed to the accident. For those reasons, the Supreme Court held that the evidence did not completely or reasonably support the sudden emergency jury instruction and the trial court abused its discretion in tendering the instruction.

In reviewing the sudden emergency doctrine in general, the Supreme Court held that Colorado negligence law no longer requires the sudden emergency instruction because its minimal utility in Colorado's comparative negligence scheme is greatly outweighed by the instruction's danger of misleading the jury. First, with respect to its minimal utility, the sudden emergency doctrine is no longer necessary to offset the harsh effects of the comparative negligence defense whereby a plaintiff's negligence was a complete bar to recovery. However, the General Assembly enacted a comparative negligence statute to accomplish the same end. While the sudden emergency doctrine does not conflict with Colorado's comparative negligence statute, the court cannot overlook its potential to mislead the jury. Second, the instruction does not enrich the body of jury instructions but unnecessarily repeats the "reasonable care under the circumstances" standard articulated in two other pattern jury instructions that apply to all circumstances, including sudden occurrences.

Moreover, the sudden emergency doctrine presents a serious risk of misleading the jury because: (1) It fails to instruct the jury to find two important facts, that the person, through no fault of his or her own, was placed in a sudden emergency, before applying the sudden emergency doctrine; (2) It does not define "sudden emergency"; (3) It implies that sudden emergency situations require a reduced standard of care; and (4) It focuses the jury's attention on facts that transpired during and after the incident, rather than on the totality of the circumstances, including the defendant's actions that may have caused the emergency in the first place. Because these potentially misleading characteristics of the sudden emergency jury instruction greatly outweigh its minimal utility, the Supreme Court abolished the sudden emergency doctrine.

People v. Carrillo, Colorado Court of Appeals No. 10CA2188 (January 17, 2013)

Case Summary: The Colorado court of appeals found that the section 18-1.3-509, C.R.S., was ambiguous since it was silent on an issue that would be expected to be within its scope. Section 18-1.3-509, C.R.S., addresses presentence confinement credit for misdemeanor cases. Section 18-1.3-405, C.R.S., also addresses presentence confinement, but for offenses generally. Section 18-1.3-405, C.R.S., is substantially the same as section 18-1.3-509, C.R.S., except that it contains one additional sentence not found in section 18-1.3-509, C.R.S. The additional sentence reads:

If a defendant is serving a sentence or is on parole for a previous offense when he or she commits a new offense and he or she continues to serve the sentence for the previous offense while charges on the new offense are pending, the credit given for presentence confinement under this section shall be granted against the sentence the defendant is currently serving for the previous offense and shall not be granted against the sentence for the new offense.

The question before the court of appeals was whether that sentence applies to misdemeanor cases.

Carrillo was arrested while on parole for another offense. Carrillo could not post bond on the charges and remained in jail for 274 days until he pled guilty to misdemeanor unlawful sexual contact. The court sentenced Carrillo to one year in county jail. The court granted Carrillo presentence confinement credit only for 19 days, the time remaining after he finished serving his parole sentence. Carrillo argued that, under section 18-1.3-509, C.R.S., he was entitled to presentence confinement credit for all of the time he was in jail.

The Court of Appeals affirmed the trial court's decision finding that the additional sentence in section 18-1.3-405, C.R.S., applies to misdemeanor sentences. The court found that applying the last sentence of section 18-1.3-405, C.R.S., to misdemeanor cases was necessary to construe similar statutes in the same way and to give effect to both statutes.

In re Johnson, BANKRUPTCY NO. 11-27660 EEB (January 11, 2013)

Holding: Rule 9011 of the Federal Rules of Bankruptcy Procedure preempts section 13-17-102, C.R.S.

Case Summary: In a federal bankruptcy proceeding, the debtors Steven and Melody Johnson requested an award of attorney fees under section 13-17-102, C.R.S., based on plaintiff Advanced Coatings, International, Inc.'s assertion and continued prosecution of allegedly groundless claims against the debtors.

The bankruptcy court concluded that section 13-17-102 is preempted by rule 9011 of the Federal Rules of Bankruptcy Procedure for two reasons. First, there is more than a mere superficial similarity between section 13-17-102 and Fed. R. Bankr. P. 9011. The statute and the rule target the same persons (litigants and attorneys in civil actions) and the same conduct (claims or defenses not grounded in law or evidence). Second, the two provisions cannot operate side by side without conflict. The rule contains a "safe harbor" requirement, which is strictly applied in federal court. The rule requires presenting an alleged violator with a separate motion asserting the rule 9011 violation and then waiting 21 days before filing the motion to allow the alleged violator to withdraw the challenged paper, claim, or defense. Failing to comply with this rule results in the rejection of a motion for sanctions.

Section 13-17-102, on the other hand, contains no such requirement. It only requires the court to hold a hearing and make specific findings. For these reasons, Fed. R. Bankr. P. 9011 preempts section 13-17-102.

Hayes v. Ottke, Colorado Supreme Court No. 12SA117 (January 7, 2013)

Case Summary: Section 1-40-106 (4) (a), C.R.S., requires both of the designated representatives of the proponents of a proposed initiative to appear at any title board meeting at which the title board considers the proposed initiative. The title board nonetheless set titles for five initiatives at rehearings even though fewer than both of the designated representatives of the proponents of the initiatives were present. The title board reasoned that because it had already set titles at the original hearings on the initiatives and there was no applicable remedy for the designated representatives' failure to appear, section 1-40-106 (4) (a), C.R.S., did not deprive the board of authority to set a title at the rehearings. The opponents of the proposed initiatives appealed, arguing that a rehearing is a "meeting" for purposes of section 1-40-106 (4) (a),C.R.S., and that the designated representatives' failure to appear at the rehearings therefore deprived the title board of authority to set titles for the proposed initiatives.

The Colorado Supreme Court held that: (1) Section 1-40-106 (4) (a), C.R.S., clearly and unambiguously requires both of the designated representatives of the proponents of a proposed initiative to appear at any title board meeting at which the title board considers the proposed initiative; (2) Because the title setting process is not complete until the title board has resolved a timely motion for rehearing, a rehearing is a "meeting" for purposes of section 1-40-106 (4) (a), C.R.S.; and (3) The failure of one or both of the designated representatives to appear at a rehearing therefore deprives the title board of authority to set a title for the initiative. Instead of setting a title, the title board may defer consideration of the challenges raised in the motion for a rehearing to the next meeting at which both designated representatives are present. The Court also determined that, because House Bill 11-1072 expanded the role of a designated representative from being merely an individual to whom notice is sent to being the representative of the proponents of a proposed initiative "in all matters affecting the petition," current statutory requirements concerning designated representatives are no longer mere procedural requirements, as the Court had held before the passage of House Bill 11-1072, but are instead substantive requirements.