August 22, 2019

Archives for May 7, 2014

Colorado Supreme Court News: Two New Cases to Decide Seven Issues

Stuart-StullerBy Stuart Stuller

The Colorado Supreme Court agreed to review two cases covering seven different issues, six of them raised in one case.

Criminal Sentencing Based on Prior Offenses

The case with one issue, Jarrod Ralph Rutter v. The People of the State of Colorado (No. 13SC523), focuses on Colorado’s habitual criminal sentencing statute under which the sentence of a person convicted of a crime is quadrupled if the person has three prior convictions of a certain class of crimes. Because the multiplier is formulaic, there is a possibility that the resulting sentence could be grossly disproportionate to the underlying criminal conduct, violating the Eighth Amendment’s prohibition against cruel and unusual punishment. As a result, such a sentence is subject to a proportionality review to determine whether it is constitutional.

Jarrod Rutter was convicted on charges relating to the manufacture of methamphetamine. Rutter had three prior convictions for possession and use of controlled substances, exposing him to the habitual criminal sentence enhancement. In the interim, the Colorado General Assembly had reduced possession and use drug crimes to misdemeanors, but if the crimes were felonies at the time of the fourth offense, they still would be counted toward habitual criminal status. With only the manufacture conviction, Rutter would have faced a 24-year sentence. Because of the possession and use offenses, Rutter’s sentence was quadrupled to 96 years.

Rutter argued that while the possession and use convictions could be counted toward the statutory sentence enhancement, the fact that the General Assembly had reduced the possession and use crimes to misdemeanors should be considered in the proportionality inquiry. The court of appeals, in an unpublished opinion by Judge Hawthorne, Judge Taubman concurring, rejected the argument. Judge Graham concurred in part and dissented in part.

School Vouchers

The six-issue case, Taxpayers for Public Education et al. v. Douglas County School District et al, (No. 13SC233), arises out of a statutory and constitutional challenge to a private school voucher program funded by the Douglas County School District under which public school funding is used to pay some students’ tuition at private schools, many of which are religious schools.

The statutory challenges are brought under the Public School Finance Act, which regulates the sourcing and distribution of funding for public education. The initial question is whether citizens have the ability, or standing, to raise such a challenge, an issue that the court held turned on whether the Finance Act gives rise to an implied private right of action.

If the Finance Act challenge is permitted, the next question will be whether the voucher program violates the Act by allowing the school district to include students who are enrolled in private schools in the enrolled student count that the district submits to the state for funding.

The remaining four questions focus on constitutional challenges brought under three different provisions of the Colorado Constitution.

One question extends to all three provisions, that is, whether the voucher program is entitled to a presumption of constitutionality that can be rebutted only by proof “beyond a reasonable doubt.”

The first constitutional challenge is that the voucher program violates the constitutional provision that money from the state public education fund shall remain “inviolate and intact.” The trial court’s Judge Michael Martinez determined that state fund money, which comprises 2 percent of the funding received by the district, was diverted to private schools; therefore, this violated the constitution. The court of appeals, in an opinion by Judge Jones with Judge Graham concurring and Judge Bernard dissenting, relied on the constitutional presumption to assume that the voucher program was funded entirely with the remaining 98 percent of the district’s funding.

The second challenge arises from a provision in Colorado’s Bill of Rights that lacks both the brevity of the federal constitution’s religious clauses and the well-developed case law. The pertinent part of the provision states that no person shall be “required to attend or support any ministry, or place of worship, religious sect or denomination against his consent.” The trial court held that the program violated the Bill of Rights by using taxpayer money to support religious instruction. The court of appeals reversed, holding that the federal constitution forbids state constitutional law from turning on inquiries into the extent to which private schools are religious in character.

The final constitutional challenge is anchored to a provision that prohibits public entities from using public funds to support sectarian purposes using terms that go well beyond the usual constitutional proscription of “shall,” that is, the provision states in pertinent part that no public entity “shall ever make any appropriation, or pay from any public fund . . . anything in aid of any church or sectarian society, or for any sectarian purpose . . . whatsoever.”

Motions to exceed word and page limits are expected.

Stuart Stuller practices appellate, litigation, constitutional, employment discrimination, and education law. He regularly appears before both state and federal appellate courts and has played a substantial role in more than 30 cases that resulted in published decisions. He can be reached at

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

C.R.C.P. 42.1, Consolidated Multidistrict Litigation Rule, Changed by Supreme Court

On Monday, May 5, 2014, the Colorado Supreme Court issued Rule Change 2014(06), amending Rule 42.1 of the Colorado Rules of Civil Procedure. Rule 42.1, “Consolidated Multidistrict Litigation,” was amended to clarify the procedures for filing original procedures in consolidated matters, as shown by this redline:

(k)(2) Original pleadings regarding consolidated matters shall thereafter be filed with the clerk of the transferee court and copies filed with the clerk of the transferor court.

For a complete list of the Colorado Supreme Court’s rule changes, click here.

Finalists Selected for Judgeship on San Juan County Court Bench

On Tuesday, May 6, 2014, the Colorado State Judicial Branch announced the selection of two finalists for a vacancy on the San Juan County Court bench. The vacancy, effective July 1, 2014, will be created by the retirement of Hon. Lyndon Skinner.

The two nominees are Anthony D. Edwards of Silverton and Melodee A. Horton, also of Silverton. Under the Colorado Constitution, the governor has 15 days in which to select one of the nominees for appointment. Comments about the nominees may be emailed to the governor at

For more information, click here.

Tenth Circuit: Unpublished Opinions, 5/6/2014

On Tuesday, May 6, 2014, the Tenth Circuit Court of Appeals issued three published opinions and ten published opinions.

Thompson v. Robinson

Kutcher v. Stone

James v. McHugh

Phathong v. Tesco Corporation

United States v. Prieto

Cole v. Lake

Rall v. Aetna Life Insurance Co.

Barnes v. Timmons

United States v. Cortez-Diaz

Harding v. McCollum

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


HB 14-1361: Requiring the Department of Revenue to Promulgate Rules Regarding Equivalency of Marijuana Flowers and Edibles

On April 7, 2014, Rep. Frank McNulty and Sen. Lucia Guzman introduced HB 14-1361 – Concerning the Authority of the State Licensing Authority to Establish Equivalencies for Retail Marijuana Products, and, in Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill directs the department of revenue (department) to promulgate rules establishing the equivalent of one ounce of retail marijuana flower in various retail marijuana products. The bill authorizes the department to contract for a scientific study of the equivalency of marijuana flower in marijuana products.

The bill prohibits a retail marijuana store from selling more than one ounce of retail marijuana or the equivalent in retail marijuana products during any single transaction to a Colorado resident. Current law prohibits the sale of more than one-quarter ounce of retail marijuana to a person who is not a resident of Colorado. The bill expands this prohibition to include the equivalent of one-quarter ounce in retail marijuana products.

The bill passed out of the house on April 21. The bill has been approved by the senate health & human services and appropriations committees and cleared 2nd reading in the Senate on May 2.

Since this summary, the bill passed 3rd Reading in the Senate with no amendments. It is on its way to the governor’s desk.

HB 14-1379: Clarifying the Applicability of Prior Statute in Claims for Spousal Maintenance Filed Before January 1, 2014

On April 15, 2014, Rep. Beth McCann and Sen. Andy Kerr introduced HB 14-1379 – Concerning Clarifying the Application of Spousal Maintenance Statutes. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill clarifies that the spousal maintenance statute as it existed prior to January 1, 2014, governs claims for maintenance in dissolution of marriage and other actions filed prior to January 1, 2014.

The bill clarifies that, in addition to remarriage, maintenance also terminates upon the establishment of a civil union by the party receiving maintenance.

The bill was approved by the House on April 28. The Senate Judiciary Committee approved the bill on April 30, and on May 2 the bill was approved on 2nd Reading in the Senate.

Since this summary, the bill passed 3rd Reading in the Senate, unamended, and will go next to the governor’s desk.

HB 14-1373: Extending State’s Homestead Exemption to Certain People Who Are Not Currently Eligible

On April 11, 2014, Reps. Steve Lebsock & Ray Scott and Sens. Larry Crowder & Rachel Zenzinger introduced HB 14-1373 – Concerning Individuals who May Claim the Property Tax Exemption for Qualifying Seniors and Disabled Veterans. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

A senior who is 65 years old or older and has owned and occupied the same primary residence for at least 10 years or the surviving spouse of such a senior may claim a property tax exemption (exemption) for the primary residence in an amount equal to 50% of the first $200,000 of actual value. In addition, a disabled veteran who has a service-connected disability that the United States department of veterans affairs has rated as 100% permanent and total disability, but not the surviving spouse of such a veteran, may claim the exemption.

For property tax years commencing on or after January 1, 2015, the bill specifies that:

  • A senior who has received an exemption for his or her former primary residence but moved to a new primary residence after January 1, 2014, may continue to claim an exemption for his or her new primary residence if a natural disaster forced the move by destroying the former primary residence or otherwise rendering it uninhabitable. The surviving spouse of a deceased senior may also claim the exemption for his or her new primary residence if the deceased senior:
    1. Previously qualified for a property tax exemption for the new primary residence; or
    2. Would have qualified for a property tax exemption for the new primary residence if he or she had not died before the surviving spouse moved to the new primary residence.
  • The surviving spouse of a deceased disabled veteran who had received an exemption before his or her death may claim the exemption.

The bill was approved by the House on April 21. The Senate Finance and Appropriations Committees approved the bill on May 29 and 30 and was adopted on 2nd Reading by the full Senate on May 2.

Since this summary, the bill passed 3rd Reading in the Senate with no amendments and is on its way to the governor for action.