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Colorado Supreme Court Opinions
April 8, 2002

No. 00SA81. In re: Gall v. Jamison, M.D.
Rules of Civil Procedure—Discovery—Attorney Work Product—Expert Witnesses.

Kyrstan Gall and her parents sued two physicians for medical malpractice in the underlying action. In this original proceeding, plaintiffs sought to overturn the trial court’s order compelling them to produce written communications sent by their attorney to an expert witness whom they had retained to testify at trial. They argued that the protections afforded to attorney work product immunized the communications from discovery. The Supreme Court upholds the trial court’s order. An amendment to the Federal Rules of Civil Procedure and the Colorado Rules of Civil Procedure requires full disclosure of materials considered by an expert witness, even if the materials include attorney work product. The conclusion that privileged attorney work product materials lose their privileged status when disclosed to and considered by a testifying expert is supported by the text of the amended rules, the accompanying advisory committee’s note, policy considerations, and the persuasive reasoning of other jurisdictions addressing the same issue.

No. 01SA105. Farmers Reservoir and Irrigation Co. v. City of Goldern, and Stenzel, Division Engineer, Water Division No. 1.
Water Law—Enlarged Use—Consumptive Use—Municipal Use—Lawn Irrigation.

Two water rights decrees, entered in 1961 and 1964 ("60s decrees"), gave the City of Golden ("Golden") the right to divert up to 4.66 cubic feet per second ("c.f.s.") of Priority 12 water continuously from May 1 through October 31. In Farmers High Line Canal & Reservoir Co. v. City of Golden, 975 P.2d 189 (Colo. 1999), the Supreme Court held that the calculations of William W. Wheeler, an expert hydrologist who testified on behalf of Golden during the first of the 60s decrees proceedings, govern the interpretation of the 60s decrees. [975 P.2d at 201.] These calculations attempted to balance the consumptive use of the water by previous owners of the irrigation right with the amount of water that would be consumed by Golden’s municipal use of the water after the transfer. [See Farmers High Line Canal & Reservoir Co., 975 P.2d at 201.] Therefore, because of the unique history of these decrees, the determinative inquiry in considering whether Golden has impermissibly expanded its use of Priority 12 water is whether Golden is consuming more Priority 12 water than Wheeler anticipated. Wheeler anticipated the consumptive use Golden would make of 4.66 c.f.s. of Priority 12 water by assuming that it would irrigate no more than 225 acres of lawn and use no more than 900 acre-feet of this water for lawn irrigation. Accordingly, if Golden irrigates more than 225 acres of lawn with its Priority 12 water or uses more than 900 acre-feet of water for lawn irrigation, it would expand its use of Priority 12 water beyond that anticipated by Wheeler in the 60s proceedings. Because Wheeler’s calculations govern the interpretation of the 60s decrees, expanding the use Priority 12 water beyond that anticipated by Wheeler in the 60s proceedings would violate the cardinal principle that a change in the use of a water right cannot effect an enlargement in the use of that right. Therefore, the Supreme Court holds that Golden may not apply its Priority 12 water to more than 225 acres of lawn, nor may it apply more than 900 acre-feet of Priority 12 water to lawn irrigation.

No. 01SA205. Tattered Cover, Inc. v. City of Thornton.
Freedom of Speech—First Amendment—Colorado Constitution, Art. II, § 10—Search Warrants—Booksellers—Customer Book Purchase Records—Adversarial Hearings.

This case involves an attempt by law enforcement officials to use a search warrant to gain access to the book-buying records of a suspected criminal. The petitioner, an innocent, third-party bookseller, asserts its own and its customers’ rights under the First Amendment and the Colorado Constitution, Article II, § 10. The Supreme Court recognizes that both the U.S. and Colorado Constitutions protect the rights of the general public to purchase books anonymously, without governmental interference. As such, any law enforcement attempt to use a search warrant to discover which books a customer has purchased from a bookstore implicates fundamental rights. The Supreme Court holds that the Colorado Constitution requires law enforcement officials to show a need for the specific customer purchase record sought that is sufficiently compelling to outweigh the harm likely caused to constitutional interests by execution of the search. The search warrant will issue only if this test, which is to be applied at a pre-seizure adversarial hearing, is met. Applying this balancing test, the Supreme Court concludes that the law enforcement need for the book purchase record in this case was not sufficiently compelling to outweigh the harm that would likely follow from execution of the search warrant, in part because law enforcement officials sought the purchase record for reasons related to the contents of the books that the suspect may have purchased. Judgment is reversed and the case is remanded.

No. 01SA56. Board of County Comm’rs, County v. Park County Sportsmen’s Ranch, LLP.
Mootness—Declaratory Judgments—Water Court—§§ 37-92-305(9)(b); 37-92-305(9)(c); 37-87-101(1); and 37-92-103(10.5)—Underground Recharge, Augmentation, and Storage—Conjunctive Use—Tributary Aquifer Hydrology—Statutory Construction—Trespass—Colo. Const. Art. XVI, §§ 14 and 15—Eminent Domain—Constructed Waterworks.

Park County Sportsmen’s Ranch ("PCSR") and the Park County Board of County Commissioners, James Gardner, and Amanda Woodbury ("landowners") own property in South Park, Colorado. PCSR filed an application for a conditional water rights decree and plan for augmentation and exchange in which PCSR proposed to store water in underground aquifers underlying approximately 115 square miles in South Park. The landowners opposed the water rights application and sought a declaratory judgment that the storage of water in the aquifers underneath their land would constitute a trespass. Upholding the water court, the Supreme Court holds that: (1) artificial recharge activities involving the movement of underground water into, from, or through tributary aquifers underlying surface lands of the landowners would not constitute a trespass; and (2) PCSR’s proposed project would not require the landowners’ consent or condemnation and the payment of just compensation under the provisions of Article XVI, §§ 14 and 15, CRS § 37-87-101(1), or the other statutes the landowners invoke, because the project did not involve the construction of any of the facilities on or in the landowners’ properties. Judgment is affirmed.

No. 02SA50, 02SA52 and 02SA71. In the Matter of the Title, Ballot Title and Submission Clause for Proposed Initiative 2001-02 #43: Jones v. Polhill and Title Board.
Initiatives—Single-Subject Requirement—Multiple Subjects.

In Nos. 02SA50 and 02SA52, petitioners challenge the action of the Ballot Title Setting Board in setting the title and ballot title and submission clause for proposed Initiative 2001-2002 #43. In No. 02SA71, petitioners challenge the action of the Ballot Title Setting Board in refusing to set the title and ballot title and submission clause for proposed Initiative 2001-2002 #45. Because these proposed initiatives are virtually identical, the Supreme Court consolidates these cases for review and now holds that both Initiatives #43 and #45 contain multiple subjects in violation of Article V, § 1(5.5), of the Colorado Constitution. Article V, § 1(5.5), states in relevant part that "[n]o measure shall be proposed by petition containing more than one subject." By forbidding incongruous subjects from being joined in the same measure, this rule ensures that each proposal depends on its own merits for passage. It also prevents voters from inadvertently passing a surreptitious provision coiled up in the folds of a complex initiative. In order to constitute more than one subject, the text of the measure must relate to more than one subject and it must have at least two distinct and separate purposes. The Supreme Court holds that despite the proponents’ attempts to unite them under the same general area of the law, Initiatives #43 and #45 each contain at least four separate and unrelated purposes, in violation of Article V, § 1(5.5), of the Colorado Constitution. Passing these Initiatives would: (1) liberalize the process by which initiatives and referendum petitions are placed on the ballot; (2) modify the content of initiative and referendum petitions that are placed on the ballot by eliminating the single subject requirement; (3) prevent the repeal of the Taxpayers Bill of Rights in a single initiative; and (4) prohibit referendum petitions that reduce private property rights. Although each purpose is in some way related to the initiative or referendum process, there is no necessary connection between them and, thus, each must be accomplished through separate initiatives. Accordingly, in Nos. 02SA50 and 02SA52, the Supreme Court reverses the Ballot Title Setting Board’s action and remands this matter to it, with directions to strike the titles and return Initiative #43 to its proponents. In No. 02SA71, the Supreme Court affirms the action of the Ballot Title Setting Board in refusing to set titles for Initiative #45.

No. 99SC916. People v. Rath.
Criminal Law—Evidence—Uncharged Misconduct—Relevance.

On review by writ of certiorari, the Supreme Court reverses the Court of Appeals’ decision in People v. Rath, No. 96CA1773 (Colo. App., 6/3/99), which would have reversed the defendant’s convictions for first-degree sexual assault and second-degree kidnapping. The Court of Appeals held that the trial court abused its discretion in admitting evidence of two prior instances of uncharged sexual misconduct by the defendant, primarily because the defendant conceded he was the person who gave the victim a ride on the day in question and because it considered the other acts insufficiently similar to the current charge. The Supreme Court holds that the trial court did not abuse its discretion in admitting the evidence of these other acts pursuant to C.R.E. 404(b), as probative of whether the defendant committed the charged act.

Nos. 01SA409 & 01SA410. In the Matter of The Title, Ballot Title and Submission Clause for Proposed Initiatives 2001-2002 #21 AND #22 (“English Language Education”): Garcia v. Montero.
Ballot Titles—Single-Subject Requirement—Title Misleading—Proceedings Remanded to Title Board with Directions.

Both of these consolidated ballot title review proceedings involve proposed constitutional initiatives concerning English-language education in public schools. The Supreme Court holds that the proposed initiatives do not violate the single-subject requirement, but that the titles set by the Title Board are misleading with respect to the operation of the procedure by which a parent may request bilingual education. The Court therefore directs the Title Board to fix new titles in accordance with its opinion.

Colorado Supreme Court Opinions