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Colorado Supreme Court Opinions
December 14, 2009

No. 08SC1073. Wolf Ranch, LLC v. City of Colorado Springs.
Regulatory Impairment of Property Rights Act—Legislatively Formulated Fees.

The Supreme Court affirmed the court of appeals’ judgment holding that the drainage fee system employed by the City of Colorado Springs does not trigger the Regulatory Impairment of Property Rights Act. The Court found that the fee assessed to Wolf Ranch, LLC was promulgated by Colorado Springs through legislative process and was uniformly assessed to all property owners occupying the drainage basin. Accordingly, the Court held that the drainage fee system falls under the Act’s exception for legislatively formulated fees imposed on a broad class of property owners.

No. 08SC351. Curious Theatre Company v. Colorado Department of Public Health and Environment.
First Amendment—Regulation of Conduct.

Several nonprofit theaters petitioned the Supreme Court for review of the court of appeals’ judgment affirming the denial of their motion for preliminary injunction. Their action against the Colorado Department of Public Health and Environment seeks both a judgment declaring Colorado’s ban on theatrical smoking to be an unconstitutional infringement on their freedom of speech and an order enjoining its enforcement. The district court denied petitioners’ motion for preliminary injunction on the ground that smoking, even in the theatrical context, does not amount to expressive conduct of a type that would be subject to either state or federal constitutional protections for speech. The court of appeals concluded that theatrical smoking was expressive conduct, but affirmed the district court on the ground that the ban was constitutional.

The Court affirmed the judgment of the court of appeals. Even assuming that theatrical smoking can amount to protected expressive conduct under some circumstances, the statutory ban does not impermissibly infringe on petitioners’ constitutionally protected freedom of expression. The ban is content neutral and narrowly tailored to serve the state’s substantial interest in protecting the public health and welfare.

No. 08SC588. People v. Wittrein.
Criminal Procedure—Competency Proceedings—Expert Testimony—Psychologist–Patient Privilege—Due Process.

The Supreme Court reversed the court of appeals’ order remanding the case for a new trial. The Court held that (1) the district court did not err in holding a child competency proceeding in front of the jury; (2) an impermissible response by an expert witness was an error that was invited by defense counsel’s questioning; and (3) the trial court was not required to review the child victim’s mental health records in camera because they were privileged. The Court held that education records may be subject to an in camera review if the defendant shows a need for the information that outweighs any privacy interests. In this case, the education records did not relate to the evidence presented at trial. Therefore, the trial court’s refusal to review them was not error. The Court remanded the case to the court of appeals to consider defendant’s other arguments not addressed by that court.

No. 09SA69. People v. Gutierrez.
Fourth Amendment Standing—Probable Cause—The Good Faith Exception.

The Supreme Court held that the trial court properly suppressed evidence obtained pursuant to an unlawful search of defendant Gutierrez’s tax returns and supporting documentation. The documents were found in Gutierrez’s client file police seized from his tax preparer’s office.

The Court held that Gutierrez has standing under the Fourth Amendment to object to a search of his client file. A taxpayer has a reasonable expectation of privacy in his or her tax returns and return information, even when that information is in the custody of a tax preparer. This reasonable expectation of privacy is based on federal and state laws that protect the confidentiality of tax returns and return information.

The Court also held that Gutierrez’s client file was searched in violation of the Fourth Amendment. The affidavit supporting the warrant did not name Gutierrez or refer to him in any way and therefore failed to establish individualized probable cause to search his client file.

Finally, the Court found that the good faith exception to the exclusionary rule does not apply in this case, because the affidavit supporting the warrant was so lacking in indicia of probable cause to search Gutierrez’s file that no reasonably well-trained officer could have relied on it. Therefore, suppression of the evidence was appropriate and the judgment was affirmed.

No. 09SC68. Board of County Commissioners of Boulder County v. Hygiene Fire Protection District.
Zoning—County Planning Act—CRS § 30-28-110(1)—Location and Extent Review—Planned Unit Development Act—Special Districts—Condemnation Authority.

To fulfill its statutory duty to provide fire protection services, the Hygiene Fire Protection District (District) intended to condemn a parcel of land within a planned unit development (PUD) for a new fire station. Boulder County refused to process the District’s application for location and extent review, asserting that the District first needed to seek modification of the PUD pursuant to CRS § 24-67-106(3)(b) of the PUD Act. The court of appeals upheld the trial court’s judgment granting summary judgment for the District, and the Supreme Court affirmed.

Under CRS § 30-28-110(1) of the County Planning Act, the governing body of a political subdivision with special statutory purposes may overrule county disapproval of a public project. Because the PUD Act functions as a type of zoning regulation and a supplement to the County Planning Act, the Court held that the long-standing rule that other political subdivisions may override the restrictions of local zoning regulations applies to the provisions of the PUD Act. Nothing in the PUD Act’s modification provision functions to alter this conclusion. The Colorado General Assembly intended that a county not be able to use its zoning authority to frustrate the efforts of other political subdivisions to carry out their statutory duties. Accordingly, although Boulder County is entitled to conduct location and extent review, it may not condition acceptance of the District’s application for location and extent review on county approval of a PUD modification. The judgment was affirmed.

Colorado Supreme Court Opinions

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