February 05, 2018
2018 CO 08. No. 17SC412. People in Interest of C.W.B., Jr.
Children’s Code—Dependency or Neglect Proceedings—Standing on Appeal.
The Supreme Court reviewed whether the foster parents in this case had standing to appeal the trial court’s denial of a motion to terminate the parent–child legal relationship. The foster parents intervened in the trial court proceedings pursuant to CRS § 19-3-507(5)(a) and participated in a hearing on the guardian ad litem’s (GAL) motion to terminate the parent–child legal relationship between the mother and the child. The trial court denied the motion. Neither the state nor the GAL appealed the trial court’s ruling, but the foster parents did. The Court of Appeals concluded that the foster parents had standing to appeal the trial court’s ruling.
The Supreme Court concluded that the foster parents in this case did not have a legally protected interest in the outcome of termination proceedings, and that CRS § 19-3-507(5)(a) did not automatically confer standing on them to appeal the juvenile court’s order denying the termination motion, where neither the Department of Social Services nor the GAL sought review of the trial court’s ruling. Because the GAL was statutorily obligated to advocate for the best interests of the child, including on appeal, there was no need to confer standing on the foster parents to represent the best interests of the child on appeal. The Court therefore reversed the judgment of the Court of Appeals and remanded the case with instructions to dismiss the appeal.
2018 CO 09. No. 16SA224. In re 2015–2016 Jefferson County Grand Jury.
Privileged Communications and Confidentiality—Crime–Fraud exception—Wiretapping.
A grand jury investigating M.W. and his company I.I. issued a subpoena duces tecum to I.I.’s attorney ordering her to produce all documents related to her representation of I.I. Along with the subpoena, the People served a notice of hearing to determine whether the documents were protected by the attorney–client privilege. In the notice, the People provided wiretap summaries as an offer of proof that the crime–fraud exception to the attorney–client privilege applied. Reasoning that I.I.’s entire endeavor was illegal, the district court ordered all of the attorney–client communications stripped of privilege without reviewing them in camera.
The Supreme Court held that a two-step process applies when a party seeks disclosure of attorney–client-privileged documents under the crime–fraud exception. First, before a court may review the privileged documents in camera, it must “require a showing of a factual basis adequate to support a good faith belief by a reasonable person that wrongful conduct sufficient to invoke the crime or fraud exception to the attorney–client privilege has occurred.” Caldwell v. Dist. Court, 644 P.2d 26, 33 (Colo. 1982). Second, the court may strip a communication of privilege only upon a showing of probable cause to believe that (1) the client was committing, or attempting to commit, a crime or fraud, and (2) the communication was made in furtherance of the putative crime or fraud. Because the People failed to make such a showing here, the district court abused its discretion in stripping the documents of privilege. The Court also held that, based on the facts of this case, the district court should have required the People to disclose the applications and authorizations for the intercepts that it provided to support the subpoena under CRS § 16-15-102(9) of Colorado’s wiretap statutes.
2018 CO 10. No. 15SC627. Smokebrush Foundation v. City of Colorado Springs.
Colorado Governmental Immunity Act—Sovereign Immunity.
In this case, the Supreme Court reviewed the Court of Appeals division’s conclusion that petitioners’ claims against respondent city were barred under the Colorado Governmental Immunity Act (CGIA). Petitioners asserted a number of tort claims for alleged injuries resulting from airborne asbestos released during demolition activities on the city’s property in 2013 and from the subsurface migration of coal tar pollutants created by historical coal gasification operations on the city’s property. The division concluded that each of these claims was barred under the CGIA.
The Supreme Court first addressed whether petitioners’ asbestos-related claims fell within the waiver of immunity set forth in CRS § 24-10-106(1)(c) for injuries resulting from the dangerous condition of a public building. The CGIA defines a “dangerous condition,” in pertinent part, as a physical condition of a facility or the use thereof that constitutes an unreasonable risk to the health or safety of the public and that is proximately caused by the negligent act or omission of the public entity in “constructing or maintaining” such facility. CRS § 24-10-103(1.3). Because the complete and permanent demolition of a building does not come within the plain meaning of the terms “constructing” or “maintaining” a facility, the Court concluded that the dangerous condition of a public building exception does not apply.
Next, the Court addressed whether petitioners’ coal tar-related claims fell within the waiver of immunity set forth in CRS § 24-10-106(1)(f) for injuries resulting from the operation and maintenance of a public gas facility when, as here, petitioners’ cause of action accrued after the CGIA’s enactment but the operation and maintenance of the facility that caused the injury occurred before that enactment. Because petitioners have established that (1) the facility at issue was a public gas facility, (2) petitioners’ claimed injuries from the coal tar contamination resulted from the operation and maintenance of that facility, and (3) petitioners’ coal tar-related claims accrued after the CGIA’s enactment, the Court concluded that under the plain language of CRS § 24-10-106(1)(f), the city waived its immunity for these claims.
Accordingly, Court affirmed the portion of the division’s judgment requiring the dismissal of petitioners’ asbestos-related claims but reversed the portion of the judgment requiring the dismissal of petitioners’ coal tar-related claims.