December 11, 2017

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.

Bills Signed Adding Water Right for Industrial Hemp, Amending Collections of Delinquent Taxes on Mobile Homes, Changing Election Laws, and More Signed

Though the legislative session is over, the governor continues to sign bills. He signed two bills on Friday, May 19; three bills on Saturday, May 20; three bills on Sunday, May 21; six bills on Monday, May 22; six bills on Tuesday, May 23; four bills on Wednesday, May 24; 28 bills on Thursday, May 25; one bill on Friday, May 26; and one bill on Tuesday, May 30. To date, the governor has signed 285 bills and vetoed one bill this legislative session. The bills signed since May 19 are summarized here.

Friday, May 19, 2017

  • HB 17-1354“Concerning the Collection of Delinquent Taxes on Certain Mobile Homes,” by Rep. KC Becker and Sens. John Kefalas & Kevin Priola. The bill modifies the county treasurer’s duties in connection with the collection of delinquent taxes on mobile or manufactured homes that are not affixed to the ground.
  • SB 17-305“Concerning Modifications to Select Statutory Provisions Affecting Primary Elections Enacted by Voters at the 2016 Statewide General Election to Facilitate the Effective Implementation of the State’s Election Laws, and, in Connection Therewith, Making an Appropriation,” by Sens. Stephen Fenberg & Kevin Lundberg and Reps. Patrick Neville & Mike Foote.

Saturday, May 20, 2017

  • HB 17-1113“Concerning Electronic Participation in Committee Meetings During the Legislative Interim,” by Reps. Yeulin Willett & Jeni Arndt and Sen. Ray Scott. The bill gives the executive committee of the legislative council the ability to consider, recommend, and establish policies regarding electronic participation by senators or representatives in committee meetings during the legislative interim.
  • HB 17-1258“Concerning Renaming Delta-Montrose Technical College to Technical College of the Rockies,” by Reps. Millie Hamner & Yeulin Willett and Sens. Kerry Donovan & Don Coram. The bill changes the name of ‘Delta-Montrose Technical College’ to ‘Technical College of the Rockies’.
  • SB 17-280“Concerning Extending the Repeal Date of the Colorado Economic Development Commission, and, in Connection Therewith, Making an Appropriation,” by Sen. Jack Tate and Reps. Dan Thurlow & Tracy Kraft-Tharp. The bill extends the Colorado economic development commission by changing the repeal date of its organic statute to July 1, 2025.

Sunday, May 21, 2017

  • HB 17-1003“Concerning a Strategic Action Plan to Address Teacher Shortages in Colorado,” by Rep. Barbara McLaughlin and Sen. Don Coram. The bill requires the Department of Higher Education in partnership with the Department of Education to examine recruitment, preparation, and retention of teachers and to prepare a strategic plan to address teacher shortages in school districts and public schools within the state.
  • HB 17-1077“Concerning the Useful Public Service Cash Fund,” by Rep. Donald Valdez and Sen. Don Coram. The bill creates the useful public service cash fund in the judicial branch to facilitate the administration of programs that supervise the performance of useful public service by persons who are required to perform such service pursuant to a criminal sentence.
  • SB 17-117“Concerning Confirmation that Industrial Hemp is a Recognized Agricultural Product for Which a Person with a Water Right Decreed for Agricultural Use may Use the Water Subject to the Water Right for Industrial Hemp Cultivation,” by Sen. Don Coram and Reps. Donald Valdez & Marc Catlin. The bill confirms that a person with an absolute or conditional water right decreed for agricultural use may use the water subject to the water right for the growth or cultivation of industrial hemp if the person is registered by the Department of Agriculture to grow industrial hemp for commercial or research and development purposes.

Monday, May 22, 2017

  • HB 17-1104“Concerning the Exclusion from State Taxable Income of the Monetary Value of any Medal Won by an Athlete while Competing for the United States of America at the Olympic Games, so long as the Athlete’s Federal Adjusted Gross Income does not Exceed a Specified Amount,” by Rep. Clarice Navarro and Sen. Kevin Priola. The bill specifies that for the purpose of determining the state income tax liability of an individual, income earned as a direct result of winning a medal while competing for the United States of America at the olympic games is excluded from state taxable income.
  • HB 17-1283“Concerning the Creation of a Task Force to Examine Workforce Resiliency in the Child Welfare System,” by Reps. Jonathan Singer & Dan Nordberg and Sens. John Cooke & Leroy Garcia. The bill creates a task force to organize county-level versions of and guidelines for child welfare caseworker resiliency programs modeled on national resiliency programs.
  • HB 17-1289“Concerning a Requirement that the State Engineer Promulgate Rules that Establish an Optional Streamlined Approach to Calculate the Historical Consumptive Use of a Water Right,” by Reps. Donald Valdez & Chris Hansen and Sens. Larry Crowder & Don Coram. The bill directs the state engineer to promulgate rules that take into account local conditions that an applicant can use to calculate historical consumptive use.
  • SB 17-074“Concerning the Creation of a Pilot Program in Certain Areas of the State Experiencing High Levels of Opioid Addiction to Award Grants to Increase Access to Addiction Treatment, and, in Connection Therewith, Making an Appropriation,” by Sen. Leroy Garcia and Rep. Daneya Esgar. The bill reates the medication-assisted treatment (MAT) expansion pilot program, administered by the University of Colorado College of Nursing, to expand access to medication-assisted treatment to opioid-dependent patients in Pueblo and Routt counties.
  • SB 17-105“Concerning Consumers’ Right to Know their Electric Utility charges by requiring investor-owned electric utilities to provide their customers with a comprehensive breakdown of cost on their monthly bills,” by Sen. Leroy Garcia and Reps. Daneya Esgar & KC Becker. The bill requires an investor-owned electric utility to file with the public utilities commission for the commission’s review a comprehensive billing format that the investor-owned electric utility has developed for its monthly billing of customers.
  • SB 17-153“Concerning Establishment of the Southwest Chief and Front Range Passenger Rail Commission to Oversee the Preservation and Expansion of Amtrak Southwest Chief Rail Service in Colorado and Facilitate the Development and Operation of a Front Range Passenger Rail System that Provides Passenger Rail Service In and Along the Interstate 25 Corridor,” by Sens. Larry Crowder & Leroy Garcia and Rep. Daneya Esgar. The bill replaces the existing southwest chief rail line economic development, rural tourism, and infrastructure repair and maintenance commission, the current statutory authorization for which expires on July 1, 2017, with an expanded southwest chief and front range passenger rail commission.

Tuesday, May 23, 2017

  • HB 17-1248“Concerning the Funding of Colorado Water Conservation Board Projects, and, in Connection Therewith, Making Appropriations,” by Rep. Jeni Arndt and Sens. John Cooke & Jerry Sonnenberg. The bill appropriates the following amounts from the Colorado Water Conservation Board construction fund to the CWCB or the Division of Water Resources for certain projects.
  • HB 17-1279“Concerning the Requirement that a Unit Owners’ Association Obtain Approval Through a Vote of Unit Owners Before Filing a Construction Defect Action,” by Reps. Alec Garnett & Lori Saine and Sens. Lucia Guzman & Jack Tate. The bill requires that, before the executive board of a unit owners’ association (HOA) in a common interest community brings suit against a developer or builder on behalf of unit owners based on a defect in construction work not ordered by the HOA itself, the board must notify the unit owners, call a meeting of the executive board, and obtain approval of a majority of unit owners.
  • HB 17-1280“Concerning Conforming Colorado Statutory Language Related to Disability Trusts to the Federal ’21st Century Cures Act’,” by Reps. Dafna Michaelson Jenet & Dave Young and Sen. Bob Gardner. The bill conforms Colorado statutory language relating to the creation of a disability trust to conform to the language established in the federal ’21st Century Cures Act’. Specifically, it clarifies that the individual who is the beneficiary of a disability trust can also be the person who establishes such trust.
  • HB 17-1353“Concerning Implementing Medicaid Initiatives that Create Higher Value in the Medicaid Program Leading to Better Health Outcomes for Medicaid Clients, and, in Connection Therewith, Continuing the Implementation of the Accountable Care Collaborative and Authorizing Performance-based Provider Payments,” by Rep. Dave Young and Sen. Kevin Lundberg. The bill authorizes the Department of Health Care Policy and Financing to continue its implementation of the medicaid care delivery system, referred to as the accountable care collaborative (ACC).
  • SB 17-209“Concerning Access to the Ballot by Candidates,” by Sen. Kevin Priola and Rep. Mike Weissman. The bill makes various changes to the laws governing access to the ballot.
  • SB 17-232“Concerning Continuation under the Sunset Law of the Bingo-Raffle Advisory Board, and, in Connection Therewith, Implementing the Recommendations of the 2016 Sunset Report of the Department of Regulatory Agencies,” by Sen. Stephen Fenberg and Rep. Paul Rosenthal. The bill The bill implements the recommendations of the sunset review and report on the licensing of bingo and other games of chance through the Secretary of State.

Wednesday, May 24, 2017

  • HB 17-1155“Concerning the Ability to Cure Campaign Finance Reporting Deficiencies Without Penalty,” by Rep. Dan Thurlow and Sen. Bob Gardner. The bill requires the Secretary of State to give notice to the particular committee by e-mail of deficiencies alleged in a complaint pursuant to the campaign finance provisions of the state constitution or the ‘Fair Campaign Practices Act’ (FCPA).
  • HB 17-1317“Concerning the Authority of the State Historical Society to Dispose of Real Property Located on the Former Lowry Air Force Base,” by Reps. Daneya Esgar & Chris Hansen and Sens. John Kefalas & Randy Baumgardner. The bill grants the state historical society the authority to sell a vacant cold storage facility located on the former Lowry Air Force base.
  • HB 17-1342“Concerning Authorization for a County to Submit a Ballot Question for a County Public Safety Improvements Tax at a Biennial County or November Odd-year Election,” by Rep. Adrienne Benavidez and Sen. Larry Crowder. The bill authorizes a county to submit a ballot question at a biennial county election or an election held in November of an odd-numbered year.
  • HB 17-1356“Concerning the Temporary Authority of the Colorado Economic Development Commission to Allow Certain Businesses to Treat Specific Existing Income Tax Credits Differently,” by Reps. Crisanta Duran & Daneya Esgar and Sens. Leroy Garcia & Jack Tate. The bill allows the Colorado economic development commission to allow certain businesses that make a strategic capital investment in the state, subject to a maximum amount, and subject to the requirements of the specified income tax credits, to treat any of the following income tax credits allowed to the business as either carryforwardable for a five-year period or as transferable under certain circumstances.

Thursday, May 25, 2017

  • HB 17-1072: “Concerning Human Trafficking for Sexual Servitude,” by Reps. Lois Landgraf & Polly Lawrence and Sen. John Cooke. The bill amends the language defining the crime of human trafficking for sexual servitude to include that a person who knowingly advertises, offers to sell, or sells travel services that facilitate activities defined as human trafficking of a minor for sexual servitude commits the offense of human trafficking of a minor for sexual servitude. ‘Travel services’ are defined in the bill.
  • HB 17-1190“Concerning the Limited Applicability of the Colorado Supreme Court’s Decision in St. Jude’s Co. v. Roaring Fork Club, LLC, 351 P.3d 442 (Colo. 2015),” by Rep. KC Becker and Sen. Jerry Sonnenberg. The bill provides that the decision in the St. Jude’s Co. case interpreting section 37-92-103(4) does not apply to previously decreed absolute and conditional water rights or claims pending as of July 15, 2015. The interpretation of section 37-92-103 (4) in St. Jude’s Co. applies only to direct-flow appropriations, without storage, filed after July 15, 2015, for water diverted from a surface stream or tributary groundwater by a private entity for private aesthetic, recreational, and piscatorial purpose.
  • HB 17-1209“Concerning Peace Officer Designation for the Manager of the Office of Prevention and Security Within the Division of Homeland Security and Emergency Management in the Department of Public Safety,” by Reps. Jovan Melton & Terri Carver and Sens. Rhonda Fields & John Cooke. The bill designates as a peace officer the manager of the office of prevention and security within the division of homeland security and emergency management in the department of public safety.
  • HB 17-1223“Concerning the Creation of a Fraud Reporting Hotline to be Administered by the State Auditor, and, in Connection Therewith, Establishing Referral and Reporting Processes and State Auditor Investigative Authority,” by Reps. Lori Saine & Tracy Kraft-Tharp and Sens. Cheri Jahn & Tim Neville. The bill requires the state auditor to establish and administer a telephone number, fax number, email address, mailing address, or internet-based form whereby any individual may report an allegation of fraud committed by a state employee or an individual acting under a contract with a state agency. This system is referred to in the bill as the ‘fraud hotline’ or ‘hotline’ and any report to the hotline as a ‘hotline call’.
  • HB 17-1238“Concerning the Nonsubstantive Relocation of Laws Related to Debt Management and Collection Services from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Pete Lee and Sen. Chris Holbert. The bill relocates the laws related to debt management and collection services from articles 14, 14.1, 14.3, and 14.5 of title 12.
  • HB 17-1239“Concerning the Nonsubstantive Relocation of Laws Related to Private Occupational Schools from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Cole Wist and Sen. Lucia Guzman. The bill creates a new article 64 in title 23 of the Colorado Revised Statutes and relocates the repealed provisions of article 59 of title 12 of the Colorado Revised Statutes to that article 64 and repeals article 59 of title 12 of the Colorado Revised Statutes.
  • HB 17-1240“Concerning the Nonsubstantive Relocation of the Laws Related to the Department of Public Health and Environment from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Cole Wist and Sen. John Cooke. The bill relocates Article 29.3 of title 12 to part 6 of article 1.5 of title 25 and Article 30 of title 12 to article 48 of title 25.
  • HB 17-1243“Concerning the Nonsubstantive Relocation of the Laws Related to Wholesale Sales Representatives from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Yeulin Willett and Sen. Lucia Guzman. The bill relocates article 66 of title 12, which relates to wholesale sales representatives, to title 13.
  • HB 17-1244: “Concerning the Nonsubstantive Relocation of the Laws Related to Cemeteries from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Leslie Herod and Sen. Bob Gardner. The bill relocates article 12 of title 12, which relates to cemeteries, to title 6.
  • HB 17-1245“Concerning the Nonsubstantive Relocation of the Laws Related to Public Establishments from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Mike Foote and Sen. Daniel Kagan. The bill relocates parts 1 and 3 of article 44 of title 12, which relate to public establishments, to title 6.
  • HB 17-1251“Concerning the Scheduled Repeal of Reports by Higher Education Agencies to the General Assembly,” by Rep. Dan Nordberg and Sen. Dominick Moreno. The bill addresses the reporting requirements of higher education agencies.
  • HB 17-1255: “Concerning the Scheduled Repeal of a Report by the Board of Veterans Affairs to the General Assembly,” by Rep. Dan Nordberg and Sen. Andy Kerr. The bill continues indefinitely a reporting requirement of the board of veterans affairs.
  • HB 17-1257: “Concerning the Scheduled Repeal of Reports by the Department of Natural Resources to the General Assembly,” by Rep. Jeni Arndt and Sen. Jack Tate. The bill continues indefinitely reporting requirements of the Department of Natural Resources that were scheduled to repeal according to section 24-1-136(11)(a)(I).
  • HB 17-1265“Concerning an Increase in the Total Employer Contribution for Employers in the Judicial Division of the Public Employees’ Retirement Association,” by Reps. KC Becker & Dan Nordberg and Sens. Andy Kerr & Kevin Priola. For the calendar year beginning in 2019, for the judicial division only, the bill increases the AED to 3.40% of total payroll and requires the AED payment to increase by 0.4% of total payroll at the start of each of the following 4 calendar years through 2023.
  • HB 17-1267“Concerning the Scheduled Repeal of Reports by Educational Agencies to the General Assembly,” by Rep. Jeni Arndt and Sen. Dominick Moreno. The bill addresses the reporting requirements of educational agencies.
  • HB 17-1295“Concerning the Repeal of the Governor’s Office of Marijuana Coordination,” by Rep. Bob Rankin and Sen. Dominick Moreno. The bill repeals the office of marijuana coordination, effective July 1, 2017.
  • HB 17-1298: “Concerning the Date by Which the State Personnel Director is Required to Submit the Annual Compensation Report,” by Rep. Millie Hamner and Sen. Kevin Lundberg. The bill changes the deadline for submission of the state personnel director’s annual report to September 15 of each year beginning with the 2017 report.
  • HB 17-1346“Concerning the Sale of More Than Fifteen Acres of Land at the Colorado Mental Health Institute at Fort Logan to the United States Department of Veterans Affairs for the Expansion of Fort Logan National Cemetery,” by Rep. Susan Lontine and Sen. Owen Hill. The bill grants the Department of Human Services authority to execute a land sale, at fair market value, to sell 51 additional acres, or up to 66 acres. The bill specifies that the proceeds of the sale of the additional 51 acres to the United States department of veterans affairs must be credited to the Fort Logan land sale account in the capital construction fund.
  • SB 17-222“Concerning the Nonsubstantive Relocation of the Laws Related to Fireworks from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sen. John Cooke and Rep. Yeulin Willett. The bill relocates article 28 of title 12, which relates to fireworks, to a new part 20 of article 33.5 of title 24, which title pertains to the department of public safety.
  • SB 17-225“Concerning the Nonsubstantive Relocation of Laws Related to Farm Products from Title 12 of the Colorado Revised Statutes as Part of the Organizational Recodification of Title 12,” by Sen. John Cooke and Rep. Yeulin Willett. The bill relocates part 2 of article 16 of title 12, the ‘Commodity Handler Act’, to article 36 of title 35; and part 1 of article 16 of title 12, the ‘Farm Products Act’, to article 37 of title 35.
  • SB 17-228“Concerning the Nonsubstantive Relocation of the Laws Related to Licenses Granted by Local Governments from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sen. Bob Gardner and Rep. Cole Wist. The bill relocates article 18 of title 12, which relates to dance halls, to title 30, which pertains to counties; article 25.5 of title 12, which relates to escort services, to title 29, which relates to local governments; and relocates article 56 of title 12, which relates to pawnbrokers, to title 29.
  • SB 17-242“Concerning Modernizing Terminology in the Colorado Revised Statutes Related to Behavioral Health,” by Sen. Beth Martinez Humenik and Reps. Kim Ransom & Joann Ginal. The bill updates and modernizes terminology in the Colorado Revised Statutes related to behavioral health, mental health, alcohol abuse, and substance abuse.
  • SB 17-243“Concerning the Continuation under the Sunset Law of the Motorcycle Operator Safety Training Program by the Director of the Office of Transportation Safety in the Department of Transportation, and, in Connection Therewith, Transferring the Operation of the Program to the Chief of the State Patrol Beginning in 2018,” by Sens. Nancy Todd & Randy Baumgardner and Rep. Dominique Jackson. The bill continues the motorcycle operator safety training program for 3 years, until 2020.
  • SB 17-279“Concerning Clarification of the Applicability Provisions of Recent Legislation to Promote an Equitable Financial Contribution Among Affected Public Bodies in Connection with Urban Redevelopment Projects Allocating Tax Revenues,” by Sens. Beth Martinez Humenik & Rachel Zenzinger and Reps. Matt Gray & Susan Beckman. The bill clarifies the applicability provisions of legislation enacted in 2015 and 2016 to promote an equitable financial contribution among affected public bodies in connection with urban redevelopment projects allocating tax revenues.
  • SB 17-291“Concerning Continuation of the School Safety Resource Center Advisory Board,” by Sen. Beth Martinez Humenik and Rep. Jeff Bridges. The bill implements the recommendations of the sunset review and report on the school safety resource center advisory board by eliminating the repeal date of the board and extending the board through September 1, 2022.
  • SB 17-293“Concerning Updating the Reference to a National Standard Setting Forth Certain Specifications Applicable to the Type of Paper Used to Publish the Colorado Revised Statutes,” by Sen. Daniel Kagan and Rep. Pete Lee. The bill updates the statutory reference to the current applicable alkaline minimum reserve requirements and acidity levels for uncoated paper as established by the American national standards institute and the national information standards organization.
  • SB 17-294“Concerning the Nonsubstantive Revision of Statutes in the Colorado Revised Statutes, as Amended, and, in Connection Therewith, Amending or Repealing Obsolete, Imperfect, and Inoperative Law to Preserve the Legislative Intent, Effect, and Meaning of the Law,” by Sen. Bob Gardner and Rep. Pete Lee. The bill amends, repeals, and reconstructs various statutory provisions of law that are obsolete, imperfect, or inoperative. The specific reasons for each amendment or repeal are set forth in the appendix to the bill.
  • SB 17-304“Concerning the Authority of the Joint Technology Committee,” by Sens. Angela Williams & Beth Martinez Humenik and Reps. Dan Thurlow & Jonathan Singer. The bill adds definitions of ‘cybersecurity’ and ‘data privacy’ for the purposes of the joint technology committee. In addition, the bill modifies the definition of ‘oversee’ for the purposes of the committee to be consistent with other statutory provisions.

Friday, May 26, 2017

  • SB 17-254“Concerning the Provision for Payment of the Expenses of the Executive, Legislative, and Judicial Departments of the State of Colorado, and of its Agencies and Institutions, For and During the Fiscal Year Beginning July 1, 2017, Except as Otherwise Noted,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill provides for the payment of expenses of the executive, legislative, and judicial departments of the state of Colorado, and of its agencies and institutions, for and during the fiscal year beginning July 1, 2017, except as otherwise noted.

Tuesday, May 30, 2017

  • SB 17-267“Concerning the Sustainability of Rural Colorado,” by Sens. Lucia Guzman & Jerry Sonnenberg and Reps. KC Becker & Jon Becker. The bill creates a new Colorado healthcare affordability and sustainability enterprise (CHASE) within the Department of Health Care Policy and Financing (HCPF), effective July 1, 2017, to charge and collect a healthcare affordability and sustainability fee that functions similarly to the repealed hospital provider fee. Because CHASE is an enterprise for purposes of the Taxpayer’s Bill of Rights (TABOR), its revenue does not count against the state fiscal year spending limit.

For a list of the governor’s 2017 legislative actions, click here.

Colorado Court of Appeals: CGIA Does Not Apply to Claims by Metropolitan District Against Developers

The Colorado Court of Appeals issued its opinion in Tallman Gulch Metropolitan District v. Natureview Development, LLC on Thursday, May 18, 2017.

Colorado Governmental Immunity Act—Public Employee Immunity for Torts.

Richardson owned Natureview Development, LLC (Natureview) and platted and developed Tallman Gulch, a real estate development. In 2006, the Tallman Gulch Metropolitan District (the District) was formed to provide public improvements and services to its residents and taxpayers. Richardson was president of the District’s Board of Directors (Board). Tallman Gulch went into foreclosure, and despite being aware of the foreclosure proceedings, Richardson, acting as president of the District’s Board, signed off on the issuance of $4,214,000 in bonds to Natureview in exchange for the then-existing infrastructure improvements in Tallman Gulch. Ten days after the bonds were issued, the district court authorized the public trustee sale of Tallman Gulch, which was sold in 2011.

The District filed various claims against Natureview and Richardson, alleging it suffered an injury when it issued over $4 million in bonds to Natureview and Richardson, despite Tallman Gulch’s foreclosure status. The District argued that Richardson breached his fiduciary duty to the District as a Board member by approving issuance of bonds in a financially reckless manner and in bad faith, failing to disclose and consider the development’s financial and foreclosure status in making the bonds decision. Defendants moved to dismiss on various grounds. As relevant here, defendants argued that the court lacked subject matter jurisdiction over the claims against Richardson under CRCP 12(b)(1), asserting that the claims were based on Richardson’s actions as an officer of the District and were thus barred by the Colorado Governmental Immunity Act (CGIA). The court denied the motion to dismiss.

On appeal, defendants argued it was error to conclude the CGIA did not apply to the District’s claims against Richardson. Richardson argued that as a public employee he was immune under the CGIA with regard to the District’s tort claims against him. Here, the District, the public entity that employed Richardson, sued him for his malfeasance while in its employ. The plain language of the statute is unambiguous as to the immunity of the entity or employee when called upon to defend against tort claims, but it is silent as to suits brought by a public entity plaintiff. The CGIA clearly states that its purpose is to limit the liability of public entities in defending against tort claims, and thus to lessen the burden on taxpayers who provide funding for public entities. To prevent the District from recovering its loss by allowing Richardson to claim immunity as a public employee does not effectuate the purposes of the CGIA. The Court of Appeals concluded that the district court correctly concluded that the CGIA did not on its face apply to the District’s claims against Richardson.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Bills Requiring Mediation for CORA Disputes and Allowing Local Governments to Tax Marijuana More Signed

On Thursday, May 4, 2017, the governor signed two bills into law. To date, he has signed 211 bills and vetoed one bill. The bills signed Thursday are summarized here.

  • HB 17-1177“Concerning the Use of Alternative Methods of Resolving Disputes that Arise Under the ‘Colorado Open Records Act,’ by Reps. Cole Wist & Alec Garnett and Sen. John Cooke. During the 14-day period before the person may file an application with the district court, the bill requires the custodian who has denied the right to inspect the record to either meet in person or communicate on the telephone with the person who has been denied access to the record to determine if the dispute may be resolved without filing an application with the district court.
  • HB 17-1203“Concerning the Authority of Certain Local Governments to Levy a Special Sales Tax on Retail Marijuana in Certain Circumstances Subject to Voter Approval by the Eligible Electors of the Local Government,” by Rep. Steve Lebsock and Sens. Larry Crowder & Beth Martinez Humenik. The bill authorizes counties and municipalities to levy, collect, and enforce a special sales tax on retail marijuana and retail marijuana products; except that a county may levy, collect, and enforce a special sales tax on retail marijuana and retail marijuana products only under certain circumstances.

For a list of all of the governor’s 2017 legislative decisions, click here.

Colorado Supreme Court: School Board Not Precluded from Approving “New” Innovation School Plan

The Colorado Supreme Court issued its opinion in City & County of Denver School District No. 1 v. Denver Classroom Teachers Association on Monday, April 24, 2017.

Innovation Schools Act—Innovation Plans—Public Schools.

The Colorado Supreme Court considered whether the Innovation Schools Act of 2008, C.R.S. §§ 22-32.5-101 to -111, precludes a local school board from approving an innovation plan submitted by a “new” innovation school, that is, a school that has not previously opened as a non-innovation school and has yet to hire teachers. The court concluded that the Innovation Schools Act does not preclude approval of innovation plans from such “new” innovation schools. Accordingly, the judgment of the court of appeals was reversed.

Summary provided courtesy of The Colorado Lawyer.