April 20, 2018

Bills Signed Regarding Ground Water Commission Approval of Aquifer Storage and Recovery Plans, Repealing Procedures to Fill Municipal Vacancies, and More

On Monday, April 9, 2018, Governor Hickenlooper signed 12 bills into law. To date, he has signed 126 bills into law and sent one to the Secretary of State without a signature. The bills signed Monday include a bill to increase transparency in higher education statutes concerning military service, a bill repealing procedures to fill vacancies in candidate nominations for municipal elections, a bill allowing the Colorado Oil and Gas Commission to roll-over its year-end balances in order to facilitate financing, and more. The bills signed Monday are summarized here.

  • SB 18-107 – “Concerning the Repeal of Procedures to Fill Vacancies in Candidate Nominations for Elections Conducted under the ‘Colorado Municipal Code of 1965,'” by Sen. Rachel Zenzinger and Rep. Dan Thurlow. The bill repeals the process by which a vacancy in nomination may be filled for an election conducted under the ‘Colorado Municipal Code of 1965’ and makes conforming amendments.
  • HB 18-1098 – “Concerning the Expanded Ability of the Colorado Oil and Gas Conservation Commission to Finance the Remediation of Oil and Gas Locations,” by Reps. Lori Saine & Matt Gray and Sen. Vicki Marble. Under current practice, expenditures by the Colorado oil and gas conservation commission to address the mitigation of adverse environmental impacts of oil and gas operations are paid from the environmental response account of the oil and gas conservation and environmental response fund, and the year-end balance of the account transfers into the fund. The bill specifies that the year-end balance of the account remains in the account.
  • HB 18-1112 – “Concerning Covered Health Care Services Provided by a Pharmacist,” by Reps. Jon Becker & Daneya Esgar and Sen. Larry Crowder. The bill requires a health benefit plan to provide coverage for health care services provided by a pharmacist if the services are provided within a health professional shortage area and the health benefit plan provides coverage for the same services provided by a licensed physician or advanced practice nurse.
  • HB 18-1134 – “Concerning Eligibility of Kindergarten Students Funded through Early Childhood At-risk Enhancement Positions,” by Reps. Brittany Pettersen & James Wilson and Sens. Michael Merrifield & Beth Martinez Humenik. If a district chooses to use early childhood at-risk enhancement (ECARE) positions to enroll children in the district’s full-day kindergarten program, children using the ECARE positions must satisfy at least one of the eligibility requirements of the Colorado preschool program.
  • HB 18-1145 – “Concerning the Repeal of Laws Regulating Ballot Issue Petition Circulators that have been Permanently Enjoined from Enforcement,” by Rep. Edie Hooten and Sen. Dominick Moreno. The bill repeals laws ordered permanently enjoined from enforcement in Independence Inst. v. Gessler , 936 F. Supp. 2d 1256 (D. Colo. 2013).
  • HB 18-1148 – “Concerning the Prohibition Against a Carrier Requiring Step Therapy for Covered Persons with Stage Four Advanced Metastatic Cancer,” by Rep. Dafna Michaelson Jenet and Sen. Larry Crowder. The bill prohibits a carrier that issues a health benefit plan that covers treatment for stage four advanced metastatic cancer from requiring a cancer patient to undergo step therapy prior to receiving a drug approved by the United States food and drug administration if use of the approved drug is consistent with best practices for treatment of the cancer and as long as the drug is on the carrier’s prescription drug formulary.
  • HB 18-1172 – “Concerning Money Allocated from an Appropriation from the Marijuana Tax Cash Fund to a Designated Managed Service Organization to Implement its Community Action Plan,” by Rep. Dave Young and Sen. Kent Lambert. The bill amends the ‘Increasing Access to Effective Substance Use Disorder Services Act’ to clarify that a designated managed service organization (designated MSO) may use money allocated to it from the marijuana tax cash fund for expenditures for substance use disorder services and for any start-up costs or other expenses necessary to increase capacity to provide such services and may allow allocations to roll forward.
  • HB 18-1199 – “Concerning a Process for the Ground Water Commission to Use for Approving Aquifer Storage-and-Recovery Plans, and, in Connection Therewith, Requiring that the Ground Water Commission Promulgate Rules Governing its Implementation of the Process,” by Reps. Marc Catlin & Barbara McLaughlin and Sen. Don Coram. The bill authorizes a person to apply to the ground water commission (commission) for approval of an aquifer storage-and-recovery plan and requires the commission to promulgate rules governing the application process and the requirements that an aquifer storage-and-recovery plan must meet to be approved.
  • HB 18-1228 – “Concerning Increasing Transparency in Higher Education Statutes Relating to Military Service,” by Reps. Justin Everett & Dafna Michaelson Jenet and Sen. Leroy Garcia. The bill creates a new article 7.4 in title 23, Colorado Revised Statutes, with the article heading ‘Military Members, Veterans, and Dependents’, in order to locate physically within the same article, whenever practicable, higher education provisions relating to the military.
  • HB 18-1238 – “Concerning the Continuation of the Wildland-Urban Interface Training Advisory Board, and, in Connection Therewith, Implementing the Recommendations of the 2017 Sunset Report by the Department of Regulatory Agencies,” by Reps. Dominique Jackson & Marc Catlin and Sen. Vicki Marble. The bill implements the recommendation of the Department of Regulatory Agencies to sunset the wildland-urban interface training advisory board.
  • HB 18-1246 – “Concerning Updates to the “Colorado Nursery Act”, and, in Connection Therewith, Modernizing the Act and Protecting Agriculture from Pests, Diseases, and Noxious Weeds,” by Rep. Jessie Danielson and Sen. Don Coram. The bill updates the ‘Colorado Nursery Act’, last amended in 2009, to protect nursery stock.
  • HB 18-1293 – “Concerning Payment of Expenses of the Legislative Department,” by Reps. Crisanta Duran & Patrick Neville and Sens. Kevin Grantham & Lucia Guzman. The bill makes appropriations for matters related to the legislative department for the 2018-19 state fiscal year.

For a list of all of Governor Hickenlooper’s 2018 legislative decisions, click here.

Colorado Court of Appeals: Civil Service Commission Must Defer to Hearing Officer’s Findings of Fact

The Colorado Court of Appeals issued its opinion in Johnson v. City & County of Denver on Thursday, March 22, 2018.

Police Officer DisciplineUse of ForceStandard of Review in Disciplinary Appeals.

Johnson, a Denver police officer, worked off-duty at a nightclub in downtown Denver. One night Brandon and his friends left the nightclub and began arguing with Johnson about Johnson’s earlier interaction with one of their friends. Johnson moved the group under a High Activity Location Observation (HALO) camera, which video-recorded their interactions (no audio was recorded). The video revealed that everyone in the group was visibly intoxicated. Eventually only Brandon and another man remained. Johnson then told Brandon he was going to detox and to turn around to be handcuffed. Brandon profanely told Johnson not to touch him. Johnson then suddenly moved toward Brandon and shoved him with both hands near the neck. Brandon fell backward onto some stairs and was handcuffed.

Brandon filed a disciplinary complaint against Johnson. The Chief of Police determined that Johnson had violated Denver Police Department Rules and Regulations RR-306 (inappropriate force) and suspended him for 30 days without pay. The Manager of Safety (MOS) approved the discipline imposed. Johnson appealed to a civil service commission hearing officer. The hearing officer reversed the suspension because (1) the MOS had erroneously applied the deadly force rather than the non-deadly force standard to Johnson’s conduct, and (2) the MOS had failed to present sufficient evidence to create a reasonable inference that finding a violation of RR-306 was correct.

The City appealed to the Civil Service Commission (Commission). The Commission reversed the hearing officer. The district court affirmed the Commission.

On appeal, Johnson contended that the Commission abused its discretion when it made its own findings of fact from a video recording of events at issue and rejected contrary facts found by the hearing officer. The “video exception” was created in a prior Commission case and is described as “statements an officer makes in direct contradiction to objectively verifiable facts in an otherwise authenticated video of the scene are not entitled to a presumption of truth.” Both the Denver City Charter’s and the Denver Civil Service Commission Rules’ standards of review govern the Commission’s review of the MOS’s order and the hearing officer’s findings, and they require the Commission to defer to the hearing officer’s findings of fact. They do not address a video exception, which is beyond the Commission’s authority to make. The video exception is contrary to law and invalid, and both the Commission and district court erred in relying on it to reverse the hearing officer’s decision.

The Court of Appeals further held that the Denver Police Department’s use of force policy articulates a single standard for reviewing an officer’s use of force and that separate standards do not exist for deadly and non-deadly force. Accordingly, the Commission correctly determined that the hearing officer erred in her application of the use of force standard.

Despite finding that the Commission erred in relying on the video exception to reverse the hearing officer’s decision, the Commission nevertheless reached the right result because (1) the hearing officer erroneously concluded that separate standards existed for deadly and non-deadly force, and (2) the hearing officer did not properly defer to the MOS’s findings as required by the clearly erroneous standard of review applicable to hearing officers and as set forth in the Commission’s rules. The hearing officer erred in substituting her own findings for those of the MOS.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Hospital Has No Private Right of Action Against Police Department for Cost of Treatment

The Colorado Supreme Court issued its opinion in City of Arvada ex rel. Arvada Police Department v. Denver Health & Hospital Authority on Monday, October 9, 2017.

Prisons—Costs of Incarceration.

Arvada police arrested a severely injured man and sent him to Denver Health Medical Center. Denver Health and Hospital Authority (Denver Health) sued Arvada for the cost of care, claiming that C.R.S. § 16-3-401, which says that persons in custody “shall be . . . provided . . . medical treatment,” required Arvada to pay the hospital for the detainee’s care. Here, the Colorado Supreme Court clarified that (1) whether a statute provides a private right of action is a question of standing, and (2) the same test for a private right of action under Allstate Insurance Co. v. Parfrey, 830 P.2d 905 (Colo. 1992), applies for claims against both governmental and non-governmental defendants. Applying Parfrey to Denver Health’s statutory claim, the court held that C.R.S. § 16-3-401 does not provide hospitals a private right of action to sue police departments for the cost of providing healthcare to persons in custody. Accordingly, it concluded that the trial court erred by granting summary judgment to Denver Health on the statutory claim. The court remanded the case for consideration of Denver Health’s unjust enrichment claim based on Arvada’s statutory duty to provide care for persons in custody.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Meal Plans Provided Wholesale to College and Therefore Improperly Taxed

The Colorado Court of Appeals issued its opinion in Sodexo America, LLC v. City of Golden on Thursday, September 7, 2017.

Tax—Meal Plans—Students—Wholesale—Contract.

Sodexo America, LLC (Sodexo) provides food services and food to the Colorado School of Mines (Mines) pursuant to a contract with Mines. Mines, in turn, contracts with its students to provide them food (the food obtained, prepared, and served by Sodexo) through various meal plans. The City of Golden (City) taxes Sodexo for students’ use of the meal plans. Sodexo collects and remits sales tax on campus food purchased with cash, check, or credit card. But the City also assesses Sodexo for sales tax on transactions whereby students swipe meal cards in exchange for meal plan meals, which taxation Sodexo challenged. The district court granted summary judgment in favor of the City on Sodexo’s challenges to the City’s assessment and denial of refunds.

On appeal, Sodexo contended that the City can’t tax it for meals purchased by Mines’ students under the students’ contracts with Mines. The Golden Municipal Code states that the City may levy sales tax on the purchase price of food, but exempts from taxation wholesale sales. Under the relevant contract and pursuant to the plain language of the Code, no sales occur between Sodexo and Mines’ students with meal plans; instead, Sodexo sells meal plan meals to Mines at wholesale. Because the Code expressly exempts wholesale sales from taxation, the City’s assessment is invalid.

The judgment was reversed, and the case was remanded for entry of judgment in Sodexo’s favor and for any other proceedings consistent with this opinion.

Summary provided courtesy of Colorado Lawyer.

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.

Colorado Supreme Court: Northglenn’s Ordinance Regarding Medical Marijuana Facilities Not Unconstitutionally Vague

The Colorado Supreme Court issued its opinion in Rocky Mountain Retail Management, LLC v. City of Northglenn on Monday, April 24, 2017.

Vagueness—Medical Marijuana Licensing.

The Colorado Supreme Court reviewed the district court’s order declaring a provision of the City of Northglenn’s medical marijuana licensing ordinance unconstitutionally vague and finding that the city’s denial of a medical marijuana center license to an applicant in reliance on that provision was arbitrary and capricious. The court held that Northglenn City Code § 18-14-7(h), which allows the local licensing authority to consider the “number, type, and availability” of existing medical marijuana facilities near the proposed facility before approving or denying an application for a local license, is not unconstitutionally vague. The phrase “number, type, and availability” provides sufficient notice to applicants and reasonably constrains the exercise of the city’s discretion. The court further held that the city’s decision to deny the license application in this case was supported by substantial evidence in the record, and therefore was not arbitrary and capricious.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Denver Lodger’s Tax Imposes Duty on Online Travel Companies to Collect and Remit Tax

The Colorado Supreme Court issued its opinion in City & County of Denver v. Expedia, Inc. on Monday, April 24, 2017.

Statutory Construction—Local Tax Ordinances.

The City and County of Denver (Denver) petitioned for review of the Colorado Court of Appeals’ opinion reversing the judgment of the district court and remanding with directions to vacate the subject tax assessments against Expedia, Inc. and the other respondent online travel companies (OTCs). (See Expedia, Inc. v. City and County of Denver, 2014 COA 87.) The district court had largely upheld a Denver hearing officer’s denial of protests by Expedia and the other OTCs to Denver’s claim for unpaid taxes, interest, and penalties, apparently due according to Denver’s ordinance imposing a lodger’s tax. Unlike the hearing officer and district court, the court of appeals concluded that Denver’s lodger’s tax article was at least ambiguous with regard to both the purchase price paid or charged for lodging, upon which the tax is to be levied, and the status of the OTCs as vendors, upon which the ordinance imposes the responsibility to collect the tax and remit it to the city; and the intermediate appellate court considered itself obligated to resolve all ambiguities in the lodger’s tax article, being a tax statute, in favor of the OTCs.

The supreme court reversed the judgment of the court of appeals. The court held that Denver’s lodger’s tax article imposes a duty on the OTCs to collect and remit the prescribed tax on the purchase price of any lodging they sell, to include not only the amount they have contracted with the hotel to charge and return but also the amount of their markup.

Summary provided courtesy of The Colorado Lawyer.

Bills Enacting Uniform Unsworn Declarations Act, Exemption from Mandatory Advisement Requirements, and More Signed

On Thursday, April 13, 2017, Governor Hickenlooper signed ten bills into law. To date, he has signed 147 bills into law this 2017 legislative session. Some of the bills signed Thursday include a bill adopting the Uniform Unsworn Declarations Act, a bill granting immunity to a person who renders emergency assistance to a person or animal in a locked vehicle, a bill exempting certain traffic violations from the mandatory advisement requirements for municipal judges, and more. The bills signed Thursday are summarized here.

  • HB 17-1021“Concerning an Employer’s Violation of Wage Laws,” by Rep. Jessie Danielson and Sen. John Cooke. The bill clarifies that information obtained by the Division of Labor Standards and Statistics that relates to a finding of a violation of wage laws is not confidential and shall be released to the public or for use in a court proceeding, unless the Director of the Division makes a determination that the information includes specific information that is a trade secret.
  • HB 17-1081“Concerning Authority to Offer In-state Tuition Classification at State-supported Institutions of Higher Education for Athletes Training in Colorado in Programs Approved by the United States Olympic Committee,” by Rep. Dan Nordberg and Sen. Stephen Fenberg. The bill allows a state-supported institution of higher education to charge in-state tuition to an athlete residing anywhere in Colorado and training in an elite level program in Colorado approved by the United States Olympic committee and the governing body of an Olympic, Paralympic, Pan American, or Parapan American sport.
  • HB 17-1083“Concerning an Exemption for Certain Traffic Violations of the Requirement that a Municipal Judge Inform a Defendant of Certain Rights,” by Rep. Larry Liston and Sen. Bob Gardner. The bill excludes cases involving traffic infractions or violations for which the penalty is only a fine and for which jail is not a possibility from the requirement that municipal judges inform defendants of certain rights.
  • HB 17-1125“Concerning Eliminating the Duty of the Division of Correctional Industries to Provide Certain Services for the State’s Correctional Facilities,” by Reps. Dan Nordberg & Faith Winter and Sens. Jim Smallwood & Cheri Jahn. The bill removes a requirement that the Division of Correctional Industries in the Department of Corrections establish programs for vehicle maintenance, physical plant and facility maintenance, and food and laundry services for each of the state’s correctional facilities.
  • HB 17-1144“Concerning Amendments to the Automatic Cash Fund Funding Mechanism for Payment of Future Costs Attributable to Certain of the State’s Capital Assets,” by Rep. Daneya Esgar and Sen. Randy Baumgardner. The bill requires the General Assembly to include an annual depreciation-lease equivalent payment line item payable from the cash fund that is the funding source for the capital construction appropriation in the operating section of the annual general appropriation act for each state agency.
  • HB 17-1145“Concerning Authorization for Amateur Winemakers to Enter Wines in Organized Events,” by Rep. Leslie Herod and Sen. Bob Gardner. The bill authorizes amateur winemakers to enter their wine in organized events, such as contests, tastings, or judgings at licensed premises.
  • HB 17-1179“Concerning Immunity for a Person who Renders Emergency Assistance from a Locked Vehicle,” by Reps. Lori Saine & Joann Ginal and Sens. Lois Court & Vicki Marble. The bill provides immunity from civil and criminal liability for a person who forcibly enters a locked vehicle for the purpose of rendering assistance to an at-risk person or animal.
  • HB 17-1194“Concerning Technical Changes Relating to the Operation of Pathways in Technology Early College High Schools,” by Rep. Mike Foote and Sen. John Cooke. The bill amends the definition of a pathways in technology early college (p-tech) high school to include a p-tech program that operates within a host school.
  • HB 17-1196“Concerning Changes to the Training Requirements for Applicants for Licensure under the ‘Barber and Cosmetologist Act’,” by Rep. Jeni Arndt and Sen. Kevin Priola. The bill requires the Director of the Division of Professions and Occupations in the Department of Regulatory Agencies to promulgate rules for applicants for cosmetologist or barber licensure to furnish proof of training, not to exceed 50 credits or 1,500 contact hours.
  • SB 17-154“Concerning  the ‘Uniform Unsworn Declarations Act’, by Sen. Bob Gardner and Rep. Cole Wist. The bill adopts in Colorado the Uniform Unsworn Declarations Act,expands the uniform law to include domestic unsworn declarations as contemplated, and clarifies that the act applies only to the use of unsworn declarations in state courts.

For a list of all Governor Hickenlooper’s 2017 legislative actions, click here.

Colorado Court of Appeals: Neighbors’ Due Process Rights Not Violated During Rezoning Hearing

The Colorado Court of Appeals issued its opinion in Whitelaw v. Denver City Council on Thursday, April 6, 2017.

C.R.C.P. 106(a)(4) —Rezoning Decision—Due Process—Spot Zoning.

Plaintiffs Whitelaw, III and various neighbors sought judicial review of the rezoning decision of defendant Denver City Council. Cedar Metropolitan LLC applied to rezone a 2.3-acre parcel. To build an “age-targeted” apartment complex on the site, Cedar sought to tear down a blighted church and rezone the parcel from single family home to a zone district that allowed three-story apartment buildings. The neighbors are property owners who live in the neighborhood near the parcel. They challenged the rezoning efforts, asserting it would hurt their property values, create traffic and parking problems, cause hazards to pedestrians, and degrade the character of the surrounding neighborhood. Following an eight-hour hearing, the Council granted the request to change the zoning.

The neighbors challenged the rezoning in district court under C.R.C.P. 106(a)(4). The district court rejected all of their claims. On appeal, the neighbors asserted various claims, principally violation of their right to due process. They made five due process arguments. The court of appeals will affirm a rezoning decision unless the governmental entity exceeded its jurisdiction or abused its discretion, which occurs if the body misapplied the law or no competent evidence supports its decision.

The neighbors first argued that a lobbyist for Cedar communicated before the hearing with Council member Susman, in whose district the parcel lies, through her private email account and by phone. They alleged that the failure to disclose these communications to the public before the hearing deprived them of their due process rights because they did not have notice and an opportunity to rebut the information on which the Council may have impermissibly relied in making its determination. Despite evidence of approximately 50 pages of such emails, the neighbors pointed to no evidence that they had a “substantial prejudicial impact” on the outcome of the proceedings. In fact, Susman voted against the rezoning. The neighbors did not overcome the presumption that the Council members acted with integrity, honesty, and impartiality, and they showed no prejudice from the communications.

Second, the neighbors asserted their due process rights were violated due to the involvement of Cedar’s architect, who was also a member of the City’s Planning Board, in the application process. The Planning Board recommended that the Council approve the rezoning. The architect submitted the application to the Board, but did not attend the Planning Board meeting or vote on the rezoning and thus complied with the Denver Municipal Code. Further, the Planning Board’s recommendation is not appealable because it is not a “final decision” reviewable under C.R.C.P. 106(a)(4). Therefore, the court of appeals did not review this claim.

Third, the neighbors argued that their due process rights were violated because certain Council members’ comments at the public hearing reflected “flawed quasi-judicial decision making” and showed they “relied on irrelevant factors and information outside of the hearing record” in making their decision. The neighbors failed to demonstrate a lack of competent evidence supporting the Council’s decision or that any individual member relied on factual information outside the hearing record or ignored the record in casting their vote. There was competent evidence in the record to support the Council’s decision.

Fourth, the neighbors argued their due process rights were violated because the Council stepped outside of its neutral, quasi-judicial role and supported Cedar by improperly applying the protest petition procedure of the Denver City Charter. The protest procedure provides that if opponents gather signatures from property owners representing 20% or more of the land area within 200 feet of the perimeter of a proposed rezoning, the rezoning must pass the Council by a super-majority (10 members). Opponents gathered 17% of the perimeter zone signatures and the rezoning passed 8 to 4. The neighbors argued that the City improperly applied the protest procedure by including City-owned park land but not allowing a procedure for residents to obtain petition signatures from the City. The court disagreed, finding that the City’s calculation of the 200-foot protest petition area was in accordance with the Denver Charter.

Fifth, the neighbors alleged a due process violation because some Council members received “substantial” political contributions from lobbyists and were therefore biased in the rezoning vote. Evidence of this was not in the record before the Council and therefore was not reviewable by the court.

The neighbors also argued that the rezoning decision must be vacated because, as a matter of law, it did not comply with the City’s zoning ordinance, alleging it was not consistent with the City’s adopted plans; no specific circumstances justified the rezoning; and the rezoning fails to further the public health, safety, and general welfare. The record shows that the Council members engaged in lengthy discussions about the criteria and evidence, including testimony presented by both proponents and opponents at the hearing. The Council did not abuse its discretion in concluding that the proposed zoning was consistent with the City’s adopted plans; the rezoning resulted in uniformity of district regulations and restrictions; the rezoning furthered the public health, safety, and general welfare; circumstances justified the rezoning; and the rezoning was consistent with the description of the applicable neighborhood context and the stated purpose and intent of the proposed Zone District.

Finally, the neighbors argued that the rezoning was impermissible spot zoning because it did not further Denver’s comprehensive plans and was therefore an abuse of discretion. The court disagreed. Here, the rezoning was not out of character with the adjacent area and furthered the City’s adopted plans.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Governor Hickenlooper Signs Bills Into Law

On Wednesday, March 1, 2017, Governor Hickenlooper signed the first bills of the 2017 Legislative Session into law. The governor signed 26 bills on March 1, many of which were supplemental appropriations bills. The governor also signed 16 bills on Wednesday, March 8, 2017. To date, he has signed 42 bills into law. All of these bills are summarized here.

  • HB 17-1005“Concerning Modernization of Various Laws Relating to the Office of the State Auditor,” by Rep. Jeni Arndt and Sen. Jack Tate. The bill updates various statutes pertaining to the office of the state auditor.
  • HB 17-1010“Concerning the Authority of the Colorado Dental Board to Promulgate Rules Based on Clarifications to Existing Laws that Relate to Collaborative Dental Agreements,” by Rep. Joann Ginal and Sen. Larry Crowder. The bill clarifies that the Colorado dental board may promulgate rules for the use of lasers for dental and dental hygiene purposes within the defined scopes of practice and with appropriate supervision.
  • HB 17-1016“Concerning the Ability of an Urban Renewal Authority to Exclude the Valuation Attributable to the Extraction of Mineral Resources Located Within an Urban Renewal Area from the Total Amount of Taxable Property Subject to Division for the Purpose of Financing Urban Renewal Projects,” by Reps. Lori Saine & Matt Gray and Sens. Rachel Zenzinger & Beth Martinez Humenik. The bill permits the governing body of a municipality, as applicable, to provide in an urban renewal plan that the valuation attributable to the extraction of mineral resources located within the urban renewal area is not subject to the division of taxes between base and incremental revenues that accompanies the tax increment financing of urban renewal projects.
  • HB 17-1017“Concerning County Surveyors,” by Rep. Chris Kennedy and Sens. Cheri Jahn & Randy Baumgardner. The bill clarifies the specific duties of a county surveyor and provides that certain services may be provided at the surveyor’s discretion and when compensated by agreement between the surveyor and the board of county commissioners.
  • HB 17-1018“Concerning Extension of the Authorization for a Regional Transportation Authority to Seek Voter Approval for a Uniform Mill Levy on all Taxable Property within its Territory,” by Reps. Diane Mitsch Bush & Larry Liston and Sen. Bob Gardner. The bill extends authorization for a regional transportation authority to seek voter approval for a uniform mill levy of up to 5 mills on all taxable property within its territory until January 1, 2029.
  • HB 17-1019“Concerning the Amounts Collected by a County Treasurer upon Redemption of Specified Property Interests from a Tax Sale,” by Rep. Donald Valdez and Sen. Don Coram. The bill requires any third party computer software costs to be included in the redemption amount for tax liens on real property.
  • HB 17-1020“Concerning Treatment of Persons with Mental Illness in the Criminal and Juvenile Justice Systems,” by Rep. Jonathan Singer and Sen. Beth Martinez Humenik. The bill amends provisions in current statute to provide for ongoing staff support for the task force concerning treatment of persons with mental illness in the criminal and juvenile justice systems.
  • HB 17-1024“Concerning the Nonsubstantive Relocation of Laws Pertaining to the Commission on Family Medicine,” by Rep. Dan Thurlow and Sen. Dominick Moreno. The bill relocates laws pertaining to the commission on family medicine to Title 25.5, Colorado Revised Statutes, which pertains generally to the Department of Health Care Policy & Financing.
  • HB 17-1025“Concerning the Repeal of Obsolete Laws Relating to Reapportionment of State Legislative Districts,” by Rep. Jeni Arndt and Sen. Chris Holbert. The bill repeals obsolete laws related to drawing senate and house of representative districts, thereby removing 20,000 words from the Colorado Revised Statutes.
  • HB 17-1030“Concerning Updates to the 1921 Law Governing Irrigation Districts,” by Reps. Jeni Arndt & Jon Becker and Sen. Randy Baumgardner. The bill makes several amendments to the 1921 irrigation district laws.
  • HB 17-1047“Concerning the Scheduled Repeal of Reports by the Department of Local Affairs to the General Assembly,” by Rep. Dan Thurlow and Sen. Jack Tate. The bill addresses reporting requirements of the department of local affairs.
  • HB 17-1058“Concerning the Scheduled Repeal of Reports by the Department of Personnel to the General Assembly,” by Rep. Dan Thurlow and Sen. Andy Kerr. The bill addresses reporting requirements of the Department of Personnel and Administration and changes repeal dates.
  • HB 17-1060“Concerning the Scheduled Repeal of Reports by the Department of Health Care Policy and Financing to the General Assembly,” by Rep. Dan Thurlow and Sen. Jack Tate. The bill changes repeal dates and reporting requirements for certain Department of Health Care Policy and Financing actions.
  • HB 17-1067“Concerning Updating References to a National Standard Setting Forth Technical Criteria for Accessible Housing,” by Rep. Dan Thurlow and Sen. Andy Kerr. The bill updates references to a national standard for accessible housing criteria.
  • HB 17-1073“Concerning the Enactment of Colorado Revised Statutes 2016 as the Positive and Statutory Law of the State of Colorado,” by Rep. Mike Foote and Sen. Ray Scott. The bill enacts the 2016 Colorado Revised Statutes as the law of Colorado.
  • HB 17-1074“Concerning the Repeal of Obsolete Laws Relating to Redistricting of Congressional Districts,” by Rep. Jeni Arndt and Sen. Chris Holbert. The bill repeals a law relating to Colorado’s congressional districts that has been rendered obsolete by the redistricting premised on the 2010 federal census.
  • HB 17-1078“Concerning the Repeal of the Colorado Family Support Loan Program, and, in Connection Therewith, Transferring Funds from the Colorado Family Support Loan Program to the Family Support Services Program to Provide Services for Families of Persons with Intellectual and Developmental Disabilities,” by Rep. Lois Landgraf and Sen. Don Coram. The bill repeals the Colorado family support loan fund and transfers any money remaining in that fund to a new fund created in the family support services program.
  • HB 17-1128“Concerning the Salary Categorization of Locally Elected Officials in Lake County,” by Rep. Millie Hamner and Sen. Kerry Donovan. The bill changes the salary categorization for locally elected officials in Lake County.
  • HB 17-1131“Concerning Contracting by the Colorado Student Loan Program for the Administration of the College Opportunity Fund Program,” by Reps. Tracy Kraft-Tharp & Lori Saine and Sens. Kerry Donovan & Jim Smallwood. The bill permits the Colorado student loan program to enter into an agreement with the Department of Higher Education or another state entity to administer part or all of the college opportunity fund program.
  • SB 17-013“Concerning Authorization of the Board of Directors of the Fire and Police Pension Association to Develop a Multi-Employer Deferred Compensation Plan Document,” by Sen. Matt Jones and Reps. Kevin Van Winkle & Jessie Danielson. The bill authorizes the Board of Directors of the Fire and Police Pension Association to develop a multi-employer deferred compensation plan document to allow employers to join a multi-employer plan.
  • SB 17-018“Concerning a Correction to an Amending Clause in Senate Bill 16-146 Related to the Repeal of Part 14 of Article 4 of Title 25,” by Sen. Dominick Moreno and Rep. Jeni Arndt. The bill fixes an incorrect amending clause from Senate Bill 16-146, ‘Concerning Modernizing Statutes Related to Sexually Transmitted Infections’, that failed to repeal the entirety of part 14 of article 4 of title 25 prior to the repeal and relocation of sections in that part 14.
  • SB 17-020“Concerning the Establishment of a Uniform Approval Standard for Fire and Police Pension Association Statewide Plan Elections,” by Sen. John Cooke and Reps. Joann Ginal & Jovan Melton. The bill creates a uniform approval standard for modifications to FPPA pension plans by requiring that any modifications be approved by 65% of the members employed by the employer who vote in the election for the plan modification.
  • SB 17-044“Concerning the Scheduled Repeal of Reports by the Department of Regulatory Agencies to the General Assembly,” by Sen. Andy Kerr and Rep. Jeni Arndt. The bill makes several changes to the reporting requirements and repeal dates for the Department of Regulatory Agencies.
  • SB 17-052“Concerning Recommendations Related to Title 22 from the Department of Education to the Statutory Revision Committee,” by Sen. Andy Kerr and Rep. Dan Thurlow. The bill implements two recommendations related to Title 22 from the department of education to the statutory revision committee.
  • SB 17-058“Concerning the Authority of Certain Individuals to Purchase Alcohol Beverages for a Premises Licensed to Sell Alcohol Beverages for Consumption on the Licensed Premises,” by Sen. Randy Baumgardner and Rep. Jonathan Singer. The bill allows an employee or agent to purchase alcohol beverages on behalf of a hotel and restaurant licensee, tavern licensee, or lodging and entertainment facility licensee.
  • SB 17-159“Concerning a Supplemental Appropriation to the Department of Corrections,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes a supplemental appropriation to the Department of Corrections.
  • SB 17-160“Concerning a Supplemental Appropriation to the Department of Education,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes a supplemental appropriation to the Department of Education.
  • SB 17-161“Concerning a Supplemental Appropriation to the Offices of the Governor, Lieutenant Governor, and State Planning and Budgeting,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes a supplemental appropriation to the offices of the Governor, Lieutenant Governor, and state planning and budgeting.
  • SB 17-162“Concerning a Supplemental Appropriation to the Department of Health Care Policy and Financing,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes a supplemental appropriation to the Department of Health Care Policy and Financing.
  • SB 17-163“Concerning a Supplemental Appropriation to the Department of Human Services,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes a supplemental appropriation to the Department of Human Services.
  • SB 17-164“Concerning a Supplemental Appropriation to the Judicial Department,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes a supplemental appropriation to the Judicial Department.
  • SB 17-166“Concerning a Supplemental Appropriation to the Department of Military and Veterans Affairs,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes a supplemental appropriation to the to Department of Military and Veterans Affairs.
  • SB 17-167“Concerning a Supplemental Appropriation to the Department of Personnel,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes a supplemental appropriation to the Department of Personnel.
  • SB 17-168“Concerning a Supplemental Appropriation to the Department of Public Safety,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes a supplemental appropriation to the Department of Public Safety.
  • SB 17-169“Concerning a Supplemental Appropriation to the Department of Revenue,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes a supplemental appropriation to the Department of Revenue.
  • SB 17-170“Concerning a Supplemental Appropriation to the Department of State,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes a supplemental appropriation to the Department of State.
  • SB 17-171“Concerning a Supplemental Appropriation to the Department of Transportation,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes a supplemental appropriation to the Department of Transportation.
  • SB 17-172“Concerning Funding for Capital Construction, and Making Supplemental Appropriations in Connection Therewith,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes supplemental appropriations for capital construction projects.
  • SB 17-173“Concerning Adjustments in the Amount of Total Program Funding for Public Schools for the 2016-17 Budget Year, and, in Connection Therewith, Making an Appropriation,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill appropriates $3,950 cash funds from the state education fund to align the hold-harmless full-day kindergarten funding with the change in total program funding.
  • SB 17-174“Concerning the Allocation of Money by the Colorado Commission on Higher Education for Tuition Assistance for Members of the National Guard,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill removes statutory provisions relating to the limit on appropriations and the commission’s allocation of money for the tuition assistance program.
  • SB 17-175“Concerning the Transfer of Money Between State Self-Insurance Funds at the Request of the Executive Director of the Department of Personnel,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill authorizes the Executive Director of the Department of Personnel to request the state treasurer to transfer money from another state self-insurance fund’s reserve balance to a fund with a deficiency.
  • SB 17-176“Concerning Authorization to Use Money in the Colorado State Titling and Registration Account to Issue Devices that Confirm that a Person has Registered a Motor Vehicle, and, in Connection Therewith, Making an Appropriation,” by Sen. Dominick Moreno and Rep. Bob Rankin. The bill authorizes the use of money in the Colorado state titling and registration account to be appropriated to purchase and issue license plates, decals, and validating tabs.

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

Colorado Court of Appeals: County Assessor Complied with Urban Renewal Law by Immediately Assessing Base Tax

The Colorado Court of Appeals issued its opinion in City of Aurora v. Arapahoe County Assessor on Thursday, February 23, 2017.

Urban Renewal Law—Delay in Start Date of Tax Increment Financing Period.

Colorado’s Urban Renewal Law (URL) authorizes the use of tax increment financing (TIF) to fund renewal projects for redeveloping blighted or slum areas. TIF uses recently assessed property values in an urban renewal area to establish a base tax value. As property values increase above the base value, increased tax revenues are allocated to the financing of the renewal project to pay down the debt against the project. The statute places a 25-year limit on TIF allocations to a renewal fund that runs from “the effective date of such a [TIF] provision.”

The City of Aurora (City) approved two urban renewal plans (the Plans) with multiple phases of redevelopment. The Fitzsimons Plan included four development phases and stated that TIF would begin immediately for the first two phases but be delayed for the second two phases. The Iliff Plan included two phases and provided for TIF to begin immediately for phase one and be delayed for phase two.

After the City approved the plans, the Arapahoe County assessor (Assessor) immediately calculated the base tax value for all development phases. The City and the Aurora Urban Renewal Authority (collectively, Aurora) filed a complaint against the Assessor, asking the court to order him to delay allocating TIF. The Assessor argued that he was complying with the URL, which does not permit a city to delay the start of TIF allocations. On cross-motions for determination of law, the district court entered an order in favor of the Assessor.

On appeal, Aurora first argued that the doctrines of waiver, preclusion, and estoppel barred the Assessor’s defense because the Assessor did not submit the issue to arbitration or appeal the Plans’ approval via a C.R.C.P. 106(a)(4) action. The court of appeals found that the URL’s statutory arbitration procedure does not apply to this dispute, thus the Assessor did not waive his right to assert his defense. The court did not consider Aurora’s Rule 106(a)(4) argument because it was not raised in the district court. The court determined that claim and issue preclusion were inapplicable to this case. Finally, because neither the Assessor nor the county were part of the URL’s public approval process, there was no merit in the argument that the Assessor’s defense was equitably estopped.

On the merits, the court found that the URL does not permit a municipality to alter or evade the 25-year time limit on a TIF provision by denominating parts of a plan “effective” after the plan is approved. The statute is clear that TIF cannot exceed 25 years from the date the provision is adopted, and a city cannot extend that time limit by denominating certain provisions “effective” on a date after they are actually approved.

The City also argued that adopting the urban renewal plans involved legislative acts within its home-rule powers. Adopting an urban renewal plan is not a legislative act. Even if approving an urban renewal plan was a legislative act, approving these plans would be beyond the City’s power because the plans conflict with the URL’s TIF timeline. Thus, even if the City’s acts were legislative, they would be invalid.

Aurora further argued that the Assessor and the court could not rely on or be bound by informal guidance from the Colorado Property Tax Administrator (Administrator). The Court did not give the Administrator’s guidance even persuasive weight.

The order and judgment were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Historical Mandates Regarding Criminal Prosecutions on Ute Tribal Lands Must Be Enforced

The Tenth Circuit Court of Appeals issued its opinion in Ute Indian Tribe of the Uintah and Ouray Reservation v. Myton on Tuesday, August 9, 2016.

Beginning in the 1860s, members of the Ute Tribe were forced onto a new reservation. By 1905, Congress authorized the Secretary of the Interior to break up the Ute reservation by assigning individual plots to tribal members and alloting any leftover land to homesteaders. In 1945, Congress ordered all unalloted lands returned to tribal jurisdiction. In 1975, the Ute Tribe filed a federal lawsuit alleging that the State of Utah and several local governments were prosecuting tribal members for crimes committed on tribal land, despite a federal mandate requiring prosecution by federal or tribal authorities. In 1985, the Tenth Circuit issued a decision known now as Ute III in which it ruled that all lands encompassed by the original boundaries of the Ute reservation were tribal lands.

Unsatisfied with this outcome, state and local officials “went shopping for a ‘friendlier forum'” in which to litigate their disputes. State officials argued in Utah state courts that their criminal prosecutions for crimes committed on tribal lands could proceed because the 1905 legislation carved out those lands that passed to non-tribal members. The Utah Supreme Court and U.S. Supreme Court agreed. The Tenth Circuit reconsidered Ute III‘s mandate in light of Hagen v. Utah, 510 U.S. 399 (1994), and issued Ute V to reconcile its earlier ruling with the Supreme Court’s decision.

Utah and several of its counties again began prosecuting tribal members in state courts for crimes committed on tribal lands, leading the Tribe to request a permanent injunction from the district court in 2013. However, in a one line order containing no explanation, the district court denied the Tribe’s request. In Ute VI, the Tenth Circuit once again found that the lands in question were undeniably tribal and the state and localities were again attempting to undo the tribal boundaries settled by Ute III and Ute V. While Ute VI was pending, the municipality of Myton filed a motion to dismiss the Tribe’s suit. The district court granted Myton’s motion to dismiss

The Tribe and the federal government requested the Tenth Circuit to give effect to Ute V‘s mandate by overturning the district court, and the Tenth Circuit felt “obliged to do exactly that.” Myton disputed the facts in the complaint, arguing that none of the lands within its bounds was subject to the 1945 restoration order. The Tenth Circuit remarked that a motion to dismiss is not proper when facts are contested. The Tenth Circuit found it undisputed that nearly half of the town’s land remained tribal trust land. Although Myton pointed to a sentence in Hagen that the crime in question had been committed in the town on non-tribal land, the Tenth Circuit declined to extend that holding to mean that all lands in the town were non-tribal. Myton also argued it would be inequitable for the town’s administration to have parcels where it could not exercise criminal jurisdiction. The Tenth Circuit found this argument unavailing, noting that “checkerboard jurisdiction” is a fact of daily life in the West, where many municipalities have successfully navigated similar congressional mandates. Myton also appealed to laches, contending that since the Tribe waited so long to assert claims against it, Myton fairly believed its township to be all non-tribal lands. The Tenth Circuit disagreed, noting first that laches cannot be asserted against the United States and also finding that the Tribe has vigorously defended its rights since the first suit in 1975.

The Tribe also requested that the Tenth Circuit assign the case to a different district judge on remand. The Tenth Circuit remarked that it reserves reassignment for only the most extreme cases, of which this was one. The district court judge “twice failed to enforce” the Tenth Circuit’s mandate in Ute V and the Tenth Circuit found little hope that things would change on remand.

The Tenth Circuit reversed the district court’s order granting Myton’s motion to dismiss, and ordered that this case and all related matters be reassigned on remand.