February 20, 2018

Colorado Court of Appeals: City Had Power to Convey Park Not Dedicated to Public Use

The Colorado Court of Appeals issued its opinion in Save Cheyenne v. City of Colorado Springs on Thursday, February 2, 2018.

Land Exchange—Home Rule Cities.

The Colorado Springs City Council adopted a resolution approving a land exchange between the City, on the one hand, and the Broadmoor Hotel, Inc.; the Manitou and Pike’s Peak Railway Company; the COG Land & Development Company; and PF, LLC (collectively, the Broadmoor) on the other hand. As relevant here, a 189.5 acre parcel within Cheyenne Park known as “Strawberry Fields” was transferred to the Broadmoor for construction of a private equestrian center on an 8.5 acre building envelope within the parcel. As a condition of the transfer, the Broadmoor is required to allow continued public access to Strawberry Fields, with the exception of the land within the building envelope. In exchange, the Broadmoor transferred to the City more than 300 acres of land and trail easements to be added to the City’s park system.

Plaintiff, a local nonprofit corporation, filed suit, seeking a declaration that the resolution authorizing the land exchange was null and void, and injunctive relief preventing the land exchange. It also alleged a zoning violation. The City and the Broadmoor moved to dismiss under C.R.C.P. 12(b)(5), for failure to state any claims, and under C.R.C.P. 12(b)(1), arguing that the zoning challenge was unripe. The district court granted the motion.

The court of appeals first rejected defendants’ motion to dismiss plaintiff’s appeal based on mootness. Plaintiff argued that the resolution was an ultra vires act of the City Council because Cheyenne Park had previously been dedicated as a public park, and as a consequence, the City holds the park in trust for the public and cannot convey the park’s land. The Court concluded that no valid statutory dedication of Cheyenne Park occurred, and that any common law dedication was abrogated. The City Council had the power to convey Strawberry Fields when it authorized the land exchange.

Plaintiff next argued that under C.R.S. § 31-15-713(1)(a) no conveyance of the parkland could be made unless it was authorized by a vote in a public election. Colorado Springs is a home rule city and therefore in matters of local concern, a home-rule ordinance supersedes a conflicting state statute. The Colorado Springs City Code provides that land exchanges are to be reviewed by the City Council and approved by resolution. The Code provision applies, and the City was not required to hold an election before making the land transfer.

The court also rejected plaintiff’s argument that the resolution and land exchange violated article XI, section 2 of the Colorado Constitution, which prohibits transfers of city property without consideration. Here, the City received consideration for the parkland.

Plaintiff next contended that the City Council’s resolution approving the land exchange violates the City Charter. The Charter sections at issue only regulate granting franchises and leases on public property and city-owned parklands. The transaction here did not create a lease or franchise on City property, and these provisions do not apply to the conveyance.

Lastly, the court concluded that plaintiff’s claim of zoning violations is not yet ripe for review. The record does not demonstrate that a final zoning decision has been made regarding the permitted uses of Strawberry Fields. The district court properly dismissed this claim.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Petitioners’ Tort Claims for Airborne Asbestos Injuries Not Barred by Colorado Governmental Immunity Act

The Colorado Supreme Court issued its opinion in Smokebrush Foundation v. City of Colorado Springs on Monday, February 5, 2018.

Colorado Governmental Immunity Act—Sovereign Immunity.

In this case, the Colorado Supreme Court reviewed the Colorado Court of Appeals division’s conclusion that petitioners’ claims against respondent city were barred under the Colorado Governmental Immunity Act (CGIA). Petitioners asserted a number of tort claims for alleged injuries resulting from airborne asbestos released during demolition activities on the city’s property in 2013 and from the subsurface migration of coal tar pollutants created by historical coal gasification operations on the city’s property. The division concluded that each of these claims was barred under the CGIA.

The supreme court first addressed whether petitioners’ asbestos-related claims fell within the waiver of immunity set forth in C.R.S. § 24-10-106(1)(c) for injuries resulting from the dangerous condition of a public building. The CGIA defines a “dangerous condition,” in pertinent part, as a physical condition of a facility or the use thereof that constitutes an unreasonable risk to the health or safety of the public and that is proximately caused by the negligent act or omission of the public entity in “constructing or maintaining” such facility. C.R.S. § 24-10-103(1.3). Because the complete and permanent demolition of a building does not come within the plain meaning of the terms “constructing” or “maintaining” a facility, the court concluded that the dangerous condition of a public building exception does not apply.

Next, the court addressed whether petitioners’ coal tar-related claims fell within the waiver of immunity set forth in C.R.S. § 24-10-106(1)(f) for injuries resulting from the operation and maintenance of a public gas facility when, as here, petitioners’ cause of action accrued after the CGIA’s enactment but the operation and maintenance of the facility that caused the injury occurred before that enactment. Because petitioners have established that (1) the facility at issue was a public gas facility, (2) petitioners’ claimed injuries from the coal tar contamination resulted from the operation and maintenance of that facility, and (3) petitioners’ coal tar-related claims accrued after the CGIA’s enactment, the court concluded that under the plain language of C.R.S. § 24-10-106(1)(f), the city waived its immunity for these claims.

Accordingly, court affirmed the portion of the division’s judgment requiring the dismissal of petitioners’ asbestos-related claims but reversed the portion of the judgment requiring the dismissal of petitioners’ coal tar-related claims.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Complaint Against Planned Parenthood Failed to State a Claim

The Colorado Supreme Court issued its opinion in Norton v. Rocky Mountain Planned Parenthood, Inc. on Monday, January 22, 2018.

Constitutional Law—Colo. Const. Art. V, § 50—Motion to Dismiss.

In this case, the Colorado Supreme Court considered whether petitioner’s complaint alleged a violation of article V, section 50 of the Colorado Constitution sufficient to overcome a motion to dismiss. The court held that to state a claim for relief under section 50, a complaint must allege that the state made a payment to a person or entity—whether directly to that person or entity, or indirectly through an intermediary—for the purpose of compensating them for performing an abortion and that such an abortion was actually performed. Because petitioner’s complaint did not allege that the state made such a payment, the complaint failed to state a claim for relief under C.R.C.P. 12(b)(5). Accordingly, the court affirmed the judgment of the court of appeals.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Sovereign Immunity Does Not Bar Attorney Fee Award Against Government Entity

The Colorado Supreme Court issued its opinion in C.K. v. People in Interest of L.K. on Monday, December 18, 2017.

Discovery Sanctions—Attorney Fees—Sovereign Immunity.

In this case, the Colorado Supreme Court considered the narrow question of whether sovereign immunity bars an award of attorney fees against a public entity. The court concluded that sovereign immunity does not bar an award of attorney fees against a public entity because sovereign immunity does not presumptively protect the state of Colorado and Colorado’s Governmental Immunity Act does not provide immunity for an award of attorney fees against a public entity. Accordingly, the court reversed the court of appeals’ judgment and remanded to that court for proceedings consistent with this opinion.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Roaring Fork Transportation Authority Possessed Eminent Domain Power by Statute

The Colorado Court of Appeals issued its opinion in Sos v. Roaring Fork Transportation Authority on Thursday, November 16, 2017.

Eminent Domain—Inverse Condemnation Claim—Compensable Damages—Restoration Damages—Diminution in Value.

Sos owns property on which he owns and operates a tire business. The Roaring Fork Transportation Authority (RFTA) built a bus station on the property north of and adjacent to his property. Before RFTA began construction, an earthen embankment rested on the property line between Sos’s and RFTA’s properties. Sos regularly sold tires and other items on the embankment and, with the previous owner’s permission, on the northern property. As part of its construction, RFTA removed the embankment and built a wall on its property, and then restored the embankment, which the wall relies on for lateral support. Sos then wanted to remove the embankment to facilitate his business. He brought an inverse condemnation claim against RFTA because the bus station wall relies on his property for lateral support. RFTA moved for summary judgment and Sos moved for partial summary judgment, regarding whether a compensable taking or damages had occurred. The district court denied RFTA’s motion and granted Sos’s motion, determining that the force the bus station wall permanently imposed on the embankment constituted compensable damage under article II, section 15 of the Colorado Constitution, and that the proper measure of damages was restoration damages rather than diminution in value.

On appeal, RFTA argued that the district court erred in determining that RFTA possessed the power of eminent domain because the General Assembly had not granted RFTA this power expressly or by clear implication, and because it does not possess the power of eminent domain, Sos cannot establish an inverse condemnation claim. Pursuant to the plain language of C.R.S. § 43-4-604, RFTA has the power of eminent domain by clear implication.

RFTA next asserted that the district court erred in concluding that RFTA’s bus station wall caused compensable damage because the wall’s construction did not substantially diminish the value of Sos’s property or substantially change Sos’s use of his property. The district court found, with record support, that RFTA authorized the building of the bus station wall and that RFTA incorporated the embankment’s support into the bus station wall’s design and construction. The court, therefore, properly determined that the imposition of force on Sos’s embankment was the natural consequence of RFTA’s intentional construction of the bus station wall. Further, the record, including RFTA’s own expert opinions, supported the district court’s finding that the bus station wall imposed a new force on Sos’s embankment to such a degree that an engineered remedy was now required before the embankment could be excavated. The district court properly determined that RFTA damaged Sos’s property.

RFTA next contended that the district court erred in ruling that restoration costs rather than diminution of value was the proper measure of damages. The record shows that the diminution in value of Sos’s property after RFTA built the bus station was de minimis. But RFTA’s construction substantially limited Sos’s use and enjoyment of the embankment area. Therefore, the district court properly determined Sos’s damages under the measure of restoration costs.

RFTA further argued that the district court erred in allowing evidence of Sos’s business and personal uses for his property because such interests are non-compensable in condemnation cases. RFTA contended that Sos presented no admissible evidence regarding restoration costs or supporting the damages award. The Court of Appeals concluded that the district court’s damages award is supported by competent record evidence.

RFTA also argued that the district court erred in rejecting its proposed instructions regarding diminution of value being the proper measure of damages. The district court’s decision was supported by competent evidence and did not cause the commissioners to be inaccurately instructed on the law.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Appeal of Fracking Regulation Unripe Due to Uncertainty of Future

The Tenth Circuit Court of Appeals issued its opinion in State of Wyoming v. Zinke on Thursday, September 21, 2017.

In this case, the Tenth Circuit Court of Appeals is asked to decide whether the Bureau of Land Management (BLM) acted beyond its statutory authority when it created a regulation that governed hydraulic fracturing (fracking) on lands owned by the United States.

As fracking has become more common, public concern has increased about whether fracking is contributing to contamination of underground water sources. The BLM responded by preparing a regulation that attempted to modernize the existing federal regulations governing fracking on lands owned by the United States by increasing disclosure of the chemicals used in fracking, updating the standards for wellbore construction and testing, and addressing management of water used in the fracking process.

The finalized, published fracking regulation attempted to regulate fracking in four ways: by (1) imposing new well construction and testing requirements; (2) imposing new flowback storage requirements; (3) imposing new chemical disclosure requirements; and (4) generally increasing BLM’s oversight of fracking.

Shortly before the fracking regulation was to take effect, the Independent Petroleum Association of America (IPAA) and the Western Energy Alliance (WEA) filed a petition for review under the Administrative Procedure Act (APA), opposing the new regulation. North Dakota, Utah, and the Ute Indian Tribe also intervened.

The petition for review asserted that the fracking regulation violated two provisions of the APA in two ways: (1) the regulation was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; and (2) it was in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.

The district court concluded that no statute authorized the BLM to regulate fracking. The district court reasoned that states may regulate underground injections of any substance, not the federal government. According to the district court, only the states could regulate fracking.

While the parties supporting the regulation brought an appeal, the BLM asked this court to hold these appeals in abeyance, explaining that President Trump’s Executive Order required the Department of the Interior to review its regulations, including the fracking regulation, for consistency with the policies and priorities of the new administration. Another Executive Order directed the Secretary of the Interior, as soon as practicable, to publish for notice and comment proposed rules suspending, revising, or rescinding the fracking regulation at issue. The Secretary of the Interior then stated that the BLM would rescind the regulation in full.

The issue addressed in this appeal is whether the BLM has the authority to regulate fracking on lands owned or held in trust by the United States and thereby to promulgate the fracking regulation. The Tenth Circuit Court of Appeals held that the case was not ripe for review, as there was no hardship to the parties. The only harm suffered will be the continued operation of oil and gas development on federal lands, which represents no departure from the status quo since 2015. Further, the BLM will be able to proceed with its proposed rule rescinding the fracking regulation, and would face more uncertainty if these appeals were to remain under advisement. The appeal was held to be unripe and unfit for judicial review.

The Circuit dismissed the appeals, finding that the subject matter is unripe and the record is notably undeveloped or the future is particularly uncertain.

The Tenth Circuit Court of Appeals DISMISSED the appeals as prudentially unripe, VACATED the district court’s judgment invalidating the fracking regulation, and REMANDED with instructions to dismiss the underlying action without prejudice.

Colorado Eminent Domain Practice: The Essential Guide to Condemnation Law and Practice in Colorado

Colorado Eminent Domain Practice, the essential guide to condemnation law and practice in Colorado, will be updated and released this fall. Authored by Leslie Fields, a nationally renowned eminent domain practitioner who retired from Faegre Baker Daniels after 33 years of practice, the updated treatise includes insights into new and important eminent domain case law. On November 16th Ms. Fields will join with current FaegreBD partners, Jack Sperber, Brandee Caswell, and Sarah Kellner, as well as other eminent domain experts, to teach a course entitled Colorado Eminent Domain Practice: Books in Action. The course will draw from the key concepts and developments highlighted in the updated text.

Among the many cases featured in the updated treatise will be last year’s Colorado Court of Appeals decision in Town of Silverthorne v. Lutz, 370 P.3d 368 (Colo. App. 2016). In Lutz, the court upheld the trial court’s exclusion of evidence that the town had received funds from the Great Outdoors Colorado Program (GOCO) for the recreational trail project necessitating the taking of the Lutz property. Even though a state constitutional provision barred GOCO funds from being used to acquire property by condemnation, the court held that evidence of the special funding was not relevant to the town’s authority to condemn the easements under long established case law. The court further reasoned that a condemnation action is a special statutory proceeding that must be conducted according to statutory procedures, and the parties may not raise issues, such as project funding, which would change the character of a condemnation action. The court also stated that while the constitution prohibits GOCO funds from being used to pay the just compensation for condemned property, it does not preclude the use of the funds for other aspects of the project. Therefore, evidence of GOCO funding was properly excluded.

Finally, the Lutz court also rejected the property owners’ argument that evidence of GOCO funding was admissible to show that the town acted in bad faith in deciding that their property was necessary for construction of the trail project. For more on bad faith necessity challenges, as well as the other issues raised in Lutz, refer to the updated Colorado Eminent Domain Practice by Leslie Fields, and register for Thursday’s program using the links below.

CLE Program: Colorado Eminent Domain Practice

This CLE presentation will occur on Thursday, November 16, 2017, at the CLE Large Classroom (1900 Grant St., 3rd Floor) from 9:00 a.m. to 3:15 p.m. Register for the live program here and the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — CD Homestudy • Video OnDemandMP3 Audio

Tenth Circuit: Social Worker Not Entitled to Qualified Immunity after Violating Defendant’s Constitutional Rights

The Tenth Circuit Court of Appeals issued is opinion in T.D. v. Patton on Monday, August 28, 2017.

Ms. Patton is a social worker for the Denver Department of Human Services (DDHS) and was responsible for removing T.D., a minor, from his mother’s home, and recommending T.D. remain in the temporary custody of his father, Duerson. T.D. was removed from Duerson’s home after DDHS made a determination that T.D. had suffered physical and sexual abuse at the hands of his father. This case concerns Ms. Patton’s motion for summary judgment on the grounds that she is entitled to qualified immunity.

The Tenth Circuit Court of Appeals concluded that Ms. Patton violated T.D.’s clearly established substantive due process constitutional right to be free of a state official’s creation of danger from a private actor under a danger-creation theory. The court found that Ms. Patton violated T.D.’s substantive due process right by knowingly placing T.D. in a position of danger by recommending that T.D. be placed in Duerson’s custody despite admitted concerns about T.D.’s safety, her knowledge of Duerson’s criminal history and conviction for attempted sexual assault against a minor, and failure to investigate whether Duerson was abusing T.D. despite her awareness of evidence of potential abuse. The court found that Ms. Patton acted recklessly and in conscious disregard of a known and substantial risk that T.D. would suffer serious, immediate, and proximate harm in his father’s home.

Under 42 U.S.C. § 1983, a person acting under color of state law who subjects any citizen of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution shall be liable to the injured party. However, a defendant in an action may raise a defense of qualified immunity, which shields public officials from damages unless their conduct was unreasonable in light of law. Once a defendant asserts qualified immunity, the plaintiff has the burden to show that the defendant’s actions violated a federal constitutional or statutory right and that the right was clearly established at the time of the defendant’s unlawful conduct.

The court first evaluated whether the facts satisfied T.D.’s claim of danger-creation. The court considered whether Ms. Patton created or increased the danger posed to T.D. The court concluded that Ms. Patton’s actions amounted to a failure to investigate evidence that Duerson was abusing T.D., satisfying the first element. The second element is whether T.D. was a member of a limited and specifically definable group. The court held that because the state removed T.D. from his natural parent and took him into state custody, T.D. fell within a limited and specifically definable group of children.

Third, Ms. Patton’s conduct put T.D. at substantial risk of serious, immediate, and proximate harm. This is evidenced by Ms. Patton withholding relevant information and recommending T.D. be placed with his father, by failing to investigate evidence of potential abuse, and by continuing to recommend T.D. remain with his father.

The court discussed the fourth and fifth elements simultaneously. Ms. Patton acted recklessly and in conscious disregard of a risk (element 4) that was obvious or known (element 5). Ms. Patton knew of Duerson’s criminal history, but deleted those concerns for fear of being fired. She further withheld concerns of T.D.’s safety and concerns, stemming from her professional judgment, that T.D. should be removed from the home. Her intentional exclusion of her knowledge and concerns from her hearing report showed she acted recklessly and in conscious disregard of an obvious or known risk that Duerson posed to T.D.

The last element is satisfied by Ms. Patton’s conscience-shocking conduct. Ms. Patton’s conduct was held to significantly exceed ordinary negligence or permitting unreasonable risk and rose to a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.

In sum, Ms. Patton’s conduct violated T.D.’s substantive due process right by creating or increasing T.D.’s vulnerability to the danger of private violence by Duerson.

The court found that the law was clearly established at the time of Ms. Patton’s misconduct. The court held that a reasonable official in Ms. Patton’s shoes would have understood that she was violating T.D.’s constitutional right by creating or increasing T.D.’s vulnerability to the danger posed by Duerson.

The Tenth Circuit Court of Appeals AFFIRMED the district court’s DENIAL of summary judgment.

Tenth Circuit: Collection of Resource Data Considered Protected Speech Under the First Amendment

The Tenth Circuit Court of Appeals issued its opinion in Western Watersheds Project v. Michael on Thursday, September 7, 2017.

The State of Wyoming has enacted a pair of statutes imposing civil and criminal liability on individuals who enter open land for the purpose of collecting resource data without permission from the owner. “Resource data” was defined as data relating to land or land use. And the term “collect” was defined as requiring two elements: (1) taking a sample of material or a photograph, or otherwise preserving information in any form that is (2) submitted or intended to be submitted to any agency of the state or federal government. Information obtained in violation of these provisions could not be used in any proceeding other than an action under the statutes themselves. The statutes also required government agencies to expunge data collected in violation of their provisions and forbade the agencies from considering such data in determining any agency action.

The Tenth Circuit Court of Appeals concluded that the statutes regulate protected speech under the First Amendment and that they are not shielded from constitutional scrutiny merely because they touch upon access to private property. The statutes at issue target the creation of speech by imposing heightened penalties on those who collect resource data.

Plaintiffs in this case are advocacy organizations, arguing that the statutes violated Free Speech and Petition Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, and they were preempted by federal law. After the district court’s holding that Plaintiffs have stated claims for free speech, petition, and equal protection, Wyoming amended the two statutes, although the statutes continue to impose heightened criminal punishment and civil liability. The amendments penalize any individual who without authorization: (1) enters private land for the purpose of resource data; (2) enters private land and collects resource data; or (3) crosses private land to access adjacent or proximate land where he collects resource data. Under the current version of the statutes, there is no requirement that resource data be submitted to, or intended to be submitted, to a government agency. Instead, the term “collect” now means: (1) to take a sample of material or acquire, gather, photograph or otherwise preserve information in any form; and (2) to record a legal description or geographical coordinates of the location of the collection. The district court concluded that the revised version of the statutes did not implicate protected speech, Plaintiffs appealed to the Tenth Circuit.

The Tenth Circuit found that Wyoming already prohibits trespass, thus the effect of the challenged provisions is to increase a pre-existing penalty for trespassing if an individual collects resource data from public lands. To determine if such provisions are subject to scrutiny under the First Amendment, the question is not whether trespassing is protected conduct, but whether the act of collecting resource data on public lands qualifies as protected speech.

The Circuit concluded that the Plaintiffs’ collection of resource data constitutes the protected creation of speech, as the Supreme Court has explained that the creation and dissemination of information are speech within the meaning of the First Amendment; however, the court did not discuss the level of scrutiny to be applied, as the district court did not conduct an analysis on this matter and, as a general rule, the court will not consider an issue not passed upon below.

The Tenth Circuit Court of Appeals REVERSED the district court’s conclusion that the statutes are not entitled to First Amendment protection and REMANDED for further proceedings consistent with this opinion.

Tenth Circuit: Unofficial Head of Small Town Police Department Did Not Have Final Policymaking Authority for Department

The Tenth Circuit Court of Appeals issued its opinion in Patel v. Hall on March 1, 2017.

On April 20, 1011, Officers Bubla and Hall arrived at Mr. Austin’s auto-repair business pursuant to a call from Ms. Austin regarding suspicious activity by their landlord, Plaintiff Chetan Patel. The officers were informed that several cars that Plaintiff brought in were missing their Vehicle Identification Number (VIN). Additionally, Mr. Austin told the officers that he suspected the VINs had been switched on certain vehicles.

The officers contacted the County Attorney’s Office after speaking with the Austins and were informed that the officers could permit the Austins to remove their belongings from the premises and seal the building pending a search warrant. The officers also photographed the trucks with missing or replaced VIN plates which Mr. Austin had pointed out to them. The officers sealed the building. The next morning, Mr. and Ms. Austin and their son submitted written statements to the police and swore to their truthfulness in front of a notary. The statements included instances where the Plaintiff told Mr. Austin he needed to remove Plaintiff’s vehicles off the premises “because they were starting to draw the state’s attention.”

Officer Hall was unable to immediately obtain a search warrant, as none of the judges in Big Horn County were available. Officer Hall contacted the County Attorney’s Office to inquire whether there was probable cause to arrest Plaintiff because Officer Hall believed Plaintiff might remove evidence from the premises. The County Attorney determined that there was probable cause to justify a warrantless arrest for felony VIN fraud. Plaintiff was arrested and the county court issued an arrest warrant the next day, along with a search warrant for the premises.

Pursuant to the search warrant, the officers discovered a syringe and white powder on a table in the premises. The officers left the building and obtained a new warrant to search for drugs as well as VIN plates inside the building. In total, the officers seized two loose VIN plates, a truck with switched VIN plates, a truck with a missing VIN plate, and an empty insurance envelope which was found laying on the floor with a claim number written on it. The officers also photographed several documents with VIN numbers written on them.

The charges against Plaintiff for felony VIN fraud were dismissed on October 4, 2011. In April 2014, Plaintiff filed the §1983 complaint. Defendants argued they were entitled to qualified immunity. Plaintiff supplied an affidavit purportedly signed by Mr. Austin. Plaintiff’s two attorneys also submitted affidavits stating they met with Plaintiff and Mr. Austin when Mr. Austin allegedly made statements that differed from his original sworn police witness statement.

The district court granted summary judgment for Defendants and refused to consider the purported Mr. Austin affidavit. The district court also disregarded Plaintiff’s attorneys’ affidavits holding that the affidavits would make the attorneys material witnesses to the case in violation of Rule 3.7 of the Wyoming Rules of Professional Conduct. The district court held that Plaintiff had not shown a constitutional violation relating to the search and seizure because (i) Mr. Austin consented to the initial search, (ii) the officers had probable cause to seize the shop while they obtained a search warrant, (iii) the subsequent search was conducted pursuant to a search warrant, and (iv) there was sufficient probable cause for Plaintiff’s arrest. The district court also rejected Plaintiff’s claim that the search was beyond the scope of the search warrant because Plaintiff had not shown the officer’s actions violated clearly established law. Finally, the district court dismissed Plaintiff’s state law claims with prejudice based on a procedural deficiency by Plaintiff and the state defense of qualified immunity.

The Tenth Circuit first addressed the district court’s grant of summary judgment in favor of Officer Hall on Plaintiff’s official-capacity claim. The claim requires evidence that the municipality “caused the harm through the execution of its own policy or customs or by those whose acts may fairly be said to represent official policy.” The police department at the time had no chief of police, and Officer Hall was the senior officer. The Tenth Circuit laid out the test to decide whether a government employee is a final policymaker whose actions can give rise to municipal liability. First, the employee must be constrained by policies not of his own making. Second, his decisions must be final. Finally, the policy decisions and actions must fall within the realm of the employee’s grant of authority.

The Tenth Circuit held that there was no evidence to indicate whether or not Officer Hall was meaningfully constrained by policies not of his own making, whether or not his decisions were final, or whether his actions fell within the realm of his grant of authority. Therefore, the Tenth Circuit held that Plaintiff failed to satisfy the municipal liability test. Simply because Hall was “in charge” before the new chief took office was not enough. The Tenth Circuit affirmed the district court’s grant of summary judgment on Plaintiff’s official-capacity claims.

The Tenth Circuit next addressed the claims against Defendants in their individual capacities. The Tenth Circuit held that because Defendants asserted qualified immunity, the burden shifted to Plaintiff to establish that the Defendants violated a constitutional right and that the right was clearly established at the time of the violation.

Plaintiff’s first claim was against Officers Hall and Bubla for violation of his Fourth Amendment right when they initially searched the shop without a warrant. The Tenth Circuit held that the search was conducted pursuant to consent. The Austins had actual or apparent authority to consent as both worked at the auto-repair business. Ms. Austin contacted police and both she and Mr. Austin were present when the officers were shown around the shop. Mr. Austin did not protest, and the Tenth Circuit held that this was non-verbal consent.

Next, Plaintiff argued that Officers Hall and Bubla violated his Fourth Amendment rights when they sealed the premises without a warrant or probable cause. The Tenth Circuit held that there was probable cause and therefore Plaintiff’s rights were not violated. Probable cause existed because of what the officers found during their initial search with the Austins, Plaintiff’s suspected criminal conduct, and what Mr. Austin had told the officers about his conversations with Plaintiff. Therefore, the Tenth Circuit held that the officers were justified in sealing the building.

Third, Plaintiff argued that Hall violated his Fourth Amendment rights by arresting him without a warrant. The Tenth Circuit held that the arrest was valid because Hall had probable cause to believe Plaintiff was fraudulently altering VIN Plates. The Tenth Circuit held that the factors justifying the warrantless seizure of the building also supported Plaintiff’s arrest.

Fourth, Plaintiff argues that the warrants to search his shop and for his arrest were defective because they were “procured with reckless insufficient information.” The Tenth Circuit stated that there only needs to be a “substantial probability” that the suspect committed the crime before making an arrest. The Tenth Circuit held that Plaintiff’s evidence did not dispute that there was a substantial probability. Further because the prior search was lawful due to consent, the Tenth Circuit held that there was probable cause for a warrant to search the shop based on the initial findings.

Fifth, Plaintiff argued that the officers exceeded the scope of the search warrant. The Tenth Circuit held that the first two ways alleged by Plaintiff were not supported by evidence. The third allegation was that the officers exceeded the scope by seizing an envelope found on the ground of the shop. The Tenth Circuit held that Plaintiff met his burden of showing that the officers were not entitled to qualified immunity on that issue. The warrant clearly specified what items were to be seized, and by seizing additional items, the officers acted unreasonably for Fourth Amendment purposes.

The Tenth Circuit next addressed the district court’s decision to disregard the affidavit purportedly signed by Mr. Austin and its holding that the attorneys’ affidavits were inadmissible based on Wyoming’s professional conduct lawyer-as-witness rule. The Tenth Circuit held that is did not need to consider whether the district courts holding was accurate because even if the information from Mr. Austin’s purported affidavit was considered, it would not have created a material dispute of fact to defeat the Defendant’s assertion of qualified immunity. Therefore, the Tenth Circuit held that any error by the district court regarding Mr. Austin’s affidavit was harmless.

Finally, the Tenth Circuit held that the district court erred in dismissing Plaintiff’s state law claims with prejudice. Because the district court did not explain why the defendants were entitled to the state qualified immunity, the Tenth Circuit remanded the issue for further consideration by the district court.

In sum, the Tenth Circuit reversed the grant of summary judgment as to the seizure of the envelope, remanded for further proceedings on the state qualified immunity issue, and affirmed the district courts grant of summary judgment in favor of all Defendants on the remaining claims.

Tenth Circuit: Brand Inspection Division is Entitled to Eleventh Amendment Immunity

The Tenth Circuit Court of Appeals issued its opinion in Colby v. Herrick on March 1, 2017.

This case stemmed from a battle between Ms. Colby and her mother over the ownership of a horse. The mother complained to the Colorado Department of Agriculture, which sent someone from the Brand Inspection Division (Division) to investigate the situation. After investigating, the inspector seized the horse. Ms. Colby and her mother settled the ownership dispute in court and after three years, Ms. Colby prevailed and received the horse back. Ms. Colby and her husband then sued the Division and two of its officers. The district court dismissed the action.

The Tenth Circuit first addressed the Division as a defendant in the suit. It held that the Division was entitled to Eleventh Amendment immunity as an arm of the state and therefore could not be sued in federal court. Further, the Tenth Circuit held that because the Division was an arm of the state entitled to Eleventh Amendment immunity, the Colbys could not sue the two officers in their official capacity.

The Tenth Circuit reviewed the Eleventh Amendment immunity issue de novo. The Eleventh Amendment extends to governmental entities that are considered arms of the state. When determining if the Division was an arm of the state, the Tenth Circuit laid out five factors that it considered: (1) how the Division is characterized under Colorado law; (2) how much guidance and control the state of Colorado exercises over the Division; (3) how much funding the Division receives from the State; (4) whether the Division enjoys the ability to issue bonds and levy taxes; and (5) whether the state of Colorado bears legal liability to pay judgments against the Division.

The Tenth Circuit held that the first factor weighed in favor of regarding the Division as an arm of the state. This was due to the fact that Colorado law treats the Division as part of the state government. Additionally, the Division participates in state government as a state agency and the agency’s inspectors are Colorado law enforcement officers with the power to make arrests for violations of state law.

The Tenth Circuit held that the second factor also weighed in favor of regarding the Division as an arm of the state. This was because the Division is considered part of the state Department of Agriculture and is therefore subject to control by state officials.

With regard to the third factor, the Division is entirely self-funded. Additionally, with regard to the fourth factor, the State Board of Stock Commissioners is entitled to issue bonds worth up to $10 million to pay the Division’s expenses. The Tenth Circuit held that these two factors by themselves would cut against Eleventh Amendment immunity. However, the Tenth Circuit held that because the Division is entitled to participate in the Colorado risk management fund, which obtains money from state appropriations, that use of state money supports consideration of the Division as an arm of the state.

The Tenth Circuit held that it was unclear whether the State bears legal liability to pay a judgment of the Division.

Therefore, because the first and second factors clearly support characterization as an arm of the state, and the third and fourth could go both ways, the Tenth Circuit held that the balancing of all of the factors led it to regard the Division as an arm of the state. Therefore, the Division was entitled to Eleventh Amendment immunity. The Tenth Circuit held that the district court did not err in dismissing the claims against the division. However, it did hold that the dismissal with prejudice was a mistake. Because Eleventh Amendment immunity is jurisdictional, the Tenth Circuit held that the dismissal should have been without prejudice.

The Tenth Circuit next addressed the Eleventh Amendment immunity issue with regards to the Divisions’ two officers on the official-capacity claims for damages. The Tenth Circuit held that the officers were entitled to immunity in their official capacitates on behalf of the Division being an arm of the state. Therefore, The Tenth Circuit held that the officers were entitled to dismissal on the official-capacity claims for damages. However, just as with the Divisions Eleventh Amendment claim, because Eleventh Amendment immunity is jurisdictional, the district court should have dismissed the claim without prejudice.

The Tenth Circuit finally addressed the federal personal-capacity claims against the officers for damages. The district court had dismissed these claims based on timeliness. The Tenth Circuit stated that the Colbys claims had a two year statute of limitations. Further, the Tenth Circuit determined that the suffered damage accrued when the horse was seized on July 22, 2011. That action triggered the statute of limitations period. Because the Colbys did not sue until nearly three years later, the Tenth Circuit held that the claims were time-barred.

The Tenth Circuit addressed the Colbys’ argument that the statute of limitations should not have started until they were denied a timely post-deprivation hearing. The Tenth Circuit held that, even if this claim was accurate, that would only have moved the statute of limitations period six weeks in the future, which would still have resulted in the statute of limitations running out before the suit was filed.

Finally, the Tenth Circuit held that the continued violation doctrine did not apply to this case because the complaint does not base the claim on any acts taking place after July 22, 2011. Though the Colbys did not have their horse for three years, and therefore damages continued that entire period, the wrongful acts occurred only on July 22, 2011. Therefore, the Colbys’ claims against the officers in their individual capacity were time-barred.

In sum, the Tenth Circuit held that the Division and the officers in their official capacities were entitled to Eleventh Amendment immunity. However, because the district court dismissed these claims with prejudice, the Tenth Circuit remanded them for the limited purpose of directing the district court to make the dismissals without prejudice. Additionally, the remaining federal claims against the officers were properly dismissed based on the expiration of the statute of limitations.

Colorado Supreme Court: Non-negligently Constructed and Maintained Playground Equipment Cannot be “Dangerous Condition” for CGIA Waiver Purposes

The Colorado Supreme Court issued its opinion in St. Vrain Valley School District RE-1J v. Loveland on Monday, May 22, 2017.

Governmental Immunity—Waiver of Governmental Immunity—Dangerous Condition.

In this case, the supreme court considered the Colorado Governmental Immunity Act’s “recreation-area waiver,” which deprives a public entity of immunity in an action for injuries resulting from a dangerous condition of a public facility located in a recreation area. Specifically, the court examined the meaning of “dangerous condition” under the recreation-area waiver. The court held that a non-negligently constructed and maintained piece of playground equipment cannot be a “dangerous condition” under the waiver. Given this holding, the facts respondents alleged cannot show that a “dangerous condition” existed in this case. The court therefore concluded that the recreation-area waiver did not apply and petitioner retained its immunity from suit. The court reversed the judgment of the court of appeals and remanded to that court to reinstate the trial court’s order.

Summary provided courtesy of The Colorado Lawyer.