June 22, 2018

Archives for May 22, 2018

Colorado Supreme Court: Water Court Lacked Subject Matter Jurisdiction Over Constitutionality of Groundwater Statute

The Colorado Supreme Court issued its opinion in Jim Hutton Educational Foundation v. Rein on Monday, May 21, 2018.

Water Law—Jurisdiction.

The Jim Hutton Educational Foundation, a surface-water user, claimed that a statute prohibiting any challenge to a designated groundwater basin that would alter the basin’s boundaries to exclude a permitted well is unconstitutional. The water court dismissed that claim for lack of subject matter jurisdiction, concluding that the surface-water user had to first satisfy the Colorado Groundwater Commission that the water at issue was not designated groundwater. The supreme court concluded that, because jurisdiction vests in the water court only if the Colorado Groundwater Commission first concludes that the water at issue is designated groundwater, the water court properly dismissed the constitutional claim for lack of subject matter jurisdiction.

The court affirmed the water court’s ruling.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Road Condition Did Not Create “Unreasonable Risk,” Therefore CGIA Applied

The Colorado Supreme Court issued its opinion in City & County of Denver v. Dennis on Monday, May 21, 2018.

Colorado Governmental Immunity Act—Sovereign Immunity.

The supreme court considered whether the City and County of Denver waived its immunity under the Colorado Governmental Immunity Act (CGIA). After a motorcycle accident, plaintiff sued the City and County of Denver, and alleged that Denver had waived its immunity under the CGIA because the road on which plaintiff was traveling constituted a dangerous condition that physically interfered with the movement of traffic. To prove a dangerous condition, a plaintiff must prove four elements, one of which is that the road constituted an unreasonable risk to the health and safety of the public.

The court defined “unreasonable risk” in this context as a road condition that creates a chance of injury, damage, or loss that exceeds the bounds of reason. This determination will be fact specific, and in this case, the road did not create an unreasonable risk to the health and safety of the public. Nor did the condition of the road physically interfere with the movement of traffic.

The court reversed the court of appeals’ judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Aspen’s Bag Surcharge is Cost Aimed at Waste Reduction, Not Tax Subject to TABOR

The Colorado Supreme Court issued its opinion in Colorado Union of Taxpayers Foundation v. City of Aspen on Monday, May 21, 2018.

Taxation—Constitutional Law—Local Government Law.

The supreme court considered whether a $0.20 charge on paper bags is a tax subject to the Taxpayer’s Bill of Rights (TABOR). The court held that if the primary purpose of a charge is to raise revenue for the general expenses of government, the charge is a tax. Conversely, the court concluded that a charge is not a tax if the primary purpose of a charge is to defray the reasonable direct and indirect costs of providing a service or regulating an activity, because such a charge does not raise revenue for the general expense of government.

After analyzing the charge in this case, the court held that this charge is not a tax. Aspen imposed this charge as part of a regulatory program aimed at waste management, and the $0.20 charge for the right to use a paper bag bears a reasonable relationship to Aspen’s cost of permitting that use. Because this charge is a not a tax, it is exempt from TABOR’s requirements.

The court affirmed the court of appeals’ judgment.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 5/21/2018

On Monday, May 21, 2018, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Douglas v. Farris

Wabuyabo v. Correct Care Solutions

United States v. Servin

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.