May 21, 2018
2018 CO 36. No. 16SC377. Colorado Union of Taxpayers Foundation v. City of Aspen.
The Supreme Court considered whether a $0.20 charge on paper bags is a tax subject to the Taxpayer’s Bill of Rights (TABOR). The Court held that if the primary purpose of a charge is to raise revenue for the general expenses of government, the charge is a tax. Conversely, the Court concluded that a charge is not a tax if the primary purpose of a charge is to defray the reasonable direct and indirect costs of providing a service or regulating an activity, because such a charge does not raise revenue for the general expense of government.
After analyzing the charge in this case, the Court held that this charge is not a tax. Aspen imposed this charge as part of a regulatory program aimed at waste management, and the $0.20 charge for the right to use a paper bag bears a reasonable relationship to Aspen’s cost of permitting that use. Because this charge is a not a tax, it is exempt from TABOR’s requirements.
The Court affirmed the Court of Appeals’ judgment.
2018 CO 37. No. 16SC851. City & Cty. of Denver v. Dennis ex. rel. Heyboer
Colorado Governmental Immunity Act—Sovereign Immunity.
The Supreme Court considered whether the City and County of Denver waived its immunity under the Colorado Governmental Immunity Act (CGIA). After a motorcycle accident, plaintiff sued the City and County of Denver, and alleged that Denver had waived its immunity under the CGIA because the road on which plaintiff was traveling constituted a dangerous condition that physically interfered with the movement of traffic. To prove a dangerous condition, a plaintiff must prove four elements, one of which is that the road constituted an unreasonable risk to the health and safety of the public.
The Court defined “unreasonable risk” in this context as a road condition that creates a chance of injury, damage, or loss that exceeds the bounds of reason. This determination will be fact specific, and in this case, the road did not create an unreasonable risk to the health and safety of the public. Nor did the condition of the road physically interfere with the movement of traffic.
The Court reversed the Court of Appeals’ judgment.
2018 CO 38. No. 17SA5. Jim Hutton Educational Foundation v. Rein.
The Jim Hutton Educational Foundation, a surface-water user, claimed that a statute prohibiting any challenge to a designated groundwater basin that would alter the basin’s boundaries to exclude a permitted well is unconstitutional. The water court dismissed that claim for lack of subject matter jurisdiction, concluding that the surface-water user had to first satisfy the Colorado Groundwater Commission that the water at issue was not designated groundwater. The Supreme Court concluded that, because jurisdiction vests in the water court only if the Colorado Groundwater Commission first concludes that the water at issue is designated groundwater, the water court properly dismissed the constitutional claim for lack of subject matter jurisdiction.
The Court affirmed the water court’s ruling.
2018 CO 39. No. 15SC472. State Farm Mutual Automobile Insurance Co. v. Fisher.
Insurance—Underinsured Motorist Benefits—Unreasonable Delay/Denial of Payment.
The Supreme Court held that under CRS § 10-3-1115 insurers have a duty not to unreasonably delay or deny payment of covered benefits, even though other components of an insured’s claim may still be reasonably in dispute. Here, an insurer issued multiple underinsured motorist insurance policies that covered a driver who was injured by an underinsured motorist. Though the insurer agreed that its policies covered the driver’s medical expenses, it refused to pay them because the insurer disputed other amounts (including lost wages) that the driver sought under the policies. A jury found that the insurer violated CRS § 10-3-1115, which provides that an insurer “shall not unreasonably delay or deny payment of a claim for benefits owed to or on behalf of any first-party [insured] claimant.” Because the Court of Appeals properly upheld the driver’s jury award, the Court affirmed its judgment.
2018 CO 40. No. 18SA24. People v. Ehrnstein
In this interlocutory appeal, the Supreme Court reviewed the trial court’s order appointing a special prosecutor for the purpose of litigating defendant’s post-trial motion for a new trial. In his motion, defendant alleged that the prosecution had improperly instructed a witness to evade a defense subpoena. The trial court concluded that the Colorado Rules of Professional Conduct compelled it to appoint a special prosecutor for the purposes of the hearing on this motion because, subject to exceptions not pertinent here, Colo. RPC 3.7 prohibits an attorney from acting as both an advocate and a witness during the same proceeding.
The Court concluded that the trial court abused its discretion in appointing a special prosecutor because that court misapplied the law when it found that Colo. RPC 3.7 required the appointment of a special prosecutor in the circumstances present here. Specifically, the rule serves to prevent prejudice that arises from jury confusion in cases in which an attorney serves as both counsel and witness. Because this proceeding arose in the context of a post-trial motion, that concern is not implicated.
The Court reversed the trial court’s order and remanded this case for further proceedings.
2018 CO 41. No. 17SC406. Parocha v. Parocha
The Supreme Court considered whether and when a civil protection order is available to a victim of alleged domestic abuse who comes to Colorado seeking refuge from a non-resident. The Court concluded that an out-of-state party’s harassment of, threatening of, or attempt to coerce an individual known by the non-resident to be located in Colorado is a tortious act sufficient to establish personal jurisdiction under the state’s long-arm statute, CRS § 13-1-124. The Court also concluded that such conduct creates a sufficient nexus between the out-of-state party and Colorado to satisfy the requisite minimum contacts such that the exercise of jurisdiction by a Colorado court to enter a protection order comports with traditional notions of fair play and substantial justice.
The Court reversed the district court’s order vacating the permanent civil protection order and remanded the case for further proceedings.