Justia Government & Administrative Law Opinion Summaries

In 2008, the Town of Minturn enacted annexation ordinances for nine parcels of property in response to annexation petitions filed in 2005, which claimed that Ginn (petitioner in this action) was the 100% owner of the land proposed to be annexed. Ginn and Respondent Sensible Housing Co. were involved in a quiet title action concerning portions of the annexed property, which commenced before Ginn filed the annexation petitions. Sensible sought judicial review of the annexation pursuant to section 31-12-116, C.R.S. (2011), asserting that Minturn exceeded its jurisdiction and abused its discretion by approving the annexation of the property without an election, due to the ongoing dispute as to the property’s title. The court of appeals agreed and applied the "priority rule" to the annexation proceedings, which states that "when more than one court can exercise jurisdiction over a matter, 'the court first acquiring jurisdiction [over] the parties and the subject matter has exclusive jurisdiction.'" Upon review, the Supreme Court reversed the court of appeals, holding that the priority rule could not be applied to municipal annexation proceedings because those proceedings are a legislative function.

Petitioner Air Wisconsin Airlines Corporation employed Respondent William Hoeper as a pilot. The Transportation Security Administration (TSA) issued Respondent a firearm under the federal statute that authorizes the TSA to deputize pilots as law enforcement officers to defend the aircraft should the need arise. After discontinuing its use of the type of aircraft Respondent had piloted for many years, Air Wisconsin required Respondent to undertake training and pass a proficiency test for a new aircraft. Respondent failed three proficiency tests, knowing that if he failed a fourth test, he would be fired. During the last test, Respondent became angry with the test administrators because he believed they were deliberately sabotaging his testing. Test administrators reported Respondent's angry outbursts during testing to the TSA that Respondent was "a disgruntled employee (an FFDO [Federal Flight Deck Officer] who may be armed)" and was "concerned about the whereabouts of [Respondents] firearm." Respondent brought suit against Air Wisconsin in Colorado for defamation under Virginia law. Air Wisconsin argued it was immune from defamation suits as this under the Aviation and Transportation Security Act (ATSA), and unsuccessfully moved for summary judgment. The jury found clear and convincing evidence that statements made by the airline test administrator were defamatory. Air Wisconsin appealed and the court of appeals affirmed. The court of appeals determined that the question of whether the judge or jury decided immunity under the ATSA was a procedural issue determined by Colorado law, and concluded that the trial court properly allowed the jury to decide the immunity question. Air Wisconsin appealed. Upon review, the Supreme Court affirmed the court of appeals, adding that the airline was not immune from suit or defamation under the ATSA. Furthermore, the Court held that the record supported the jury's finding of clear and convincing evidence of actual malice.

Defendant-Petitioner Thomas Lynn O'Hara, III was convicted of distribution of a schedule II controlled substance, adjudicated a habitual criminal, and sentenced to ninety-six years in the Department of Corrections. Prior to trial, Defendant moved unsuccessfully to suppress the State's wiretap evidence against him, contending, among other things, that the wiretaps were not properly authorized because the elected district attorney had not personally prepared or signed the applications to initiate or extend the wiretaps. On appeal, Defendant renewed his challenge to the wiretap evidence. The court of appeals held that the applicable law requires the attorney general or a district attorney to "specifically authorize a specific wiretap application," but the elected official "need not sign or personally submit the application." Because the court of appeals concluded that the record contained no finding by the trial court that the elected district attorney specifically authorized the wiretaps, it remanded the case for further proceedings. Upon review, the Supreme Court agreed in substance with the court of appeals' statutory interpretation, and affirmed the court's decision to remand for further proceedings. The Supreme Court concluded that while the lack of the elected official's signature on the application is not fatal, in the absence of the elected official's signature, the requisite personal authorization cannot be presumed. "Under such circumstances, the prosecution must show compliance with section 16-15-102(1)(a) by establishing that the application was personally authorized by the attorney general or elected district attorney. This compliance may be shown through the sworn testimony or affidavit of the elected official, or similar proof."

The Students for Concealed Carry on Campus, LLC, with Martha Altman, Eric Mote, and John Davis (collectively, Students), filed a complaint against the University of Colorado's Board of Regents alleging that the Board's Weapons Control Policy 14-I (which prohibits the carrying of handguns on campus by all persons but certified law enforcement personnel) violates the Colorado Concealed Carry Act (CCA) and the Colorado Constitution's right to bear arms. The Board filed a motion to dismiss which the district court granted. The Students appealed, and the court of appeals reversed, holding that the Students stated a claim for relief because the CCA expressly applied to "all areas of the state." The court further concluded that the Students had stated a claim for relief under article II, section 13 of the Colorado Constitution, which affords individuals the right to bear arms in self-defense. The Supreme Court affirmed, finding the CCA's comprehensive statewide purpose, broad language, and narrow exclusions show that the General Assembly intended to divest the Board of Regents of its authority to regulate concealed handgun possession on campus. Accordingly, the Supreme Court agreed with the court of appeals that, by alleging the Policy violated the CCA, the Students stated a claim for relief.

"Judicial redistricting is a truly 'unwelcome obligation.'" This case involved the redistricting of Colorado's congressional districts following the results of the 2010 census. The Supreme Court held that the district court adopted a lawful redistricting scheme in accordance with constitutional criteria, and that the court did not abuse its discretion in balancing the non-constitutional factors as set forth in C.R.S. 2-1-102 (2011). Furthermore, the Court held that the balancing was reasonable and supported by the evidence that was heard through the district court’s "thorough, inclusive and non-partisan proceedings." The Court affirmed the district court’s order that the secretary of state implement the adopted redistricting scheme in future congressional elections.

Petitioner Accord Human Resources, Inc. (Accord) is a professional employer organization that transacts business in Colorado along with four related entities. In 2004, Accord transferred a portion of its Colorado employees to another Accord entity with a lower unemployment tax rate and in doing so, reduced its unemployment tax burden. The Colorado Division of Employment and Training determined that it had authority to treat the various Accord entities as one for purposes of assessing unemployment taxes, thus erasing any tax advantage that could be gained through the employee transfer. Under this rationale, the Division issued a delinquent tax notice to Accord. Accord appealed, and the hearing officer reversed. On appeal, the court of appeals reversed the Industrial Claim Appeals Office's Final Order and reinstated the hearing officer's decision. The Division sought to reverse the court of appeals decision. Upon review, the Supreme Court affirmed the appellate court's decision, finding that nothing gave the Division authority to combine separate employer tax accounts into one account for purposes of assessing unemployment taxes.

During the November 2008 election season, parties Senate Majority Fund, LLC (SMF) and Colorado Leadership Fund (CLF) were registered with the I.R.S. as so-called "527" tax-exempt political organizations. In the run-up to the November 2008 election, SMF distributed eight printed political ads and one television ad and CLF distributed eight printed ads that were the subject of this dispute. None of the seventeen ads contained words or phrases that specifically directed the viewer to "vote for," "elect," "support," "vote against," "defeat," or "reject." Similarly, none of the ads included the phrase "[candidate] for [office]." The court of appeals affirmed dismissal of this case by an administrative law judge (ALJ) for failing to state a claim upon which relief could be granted. At issue is the meaning of "expressly advocating the election or defeat of a candidate," as that phrase is used within the definition of "expenditure" in article XXVIII of the Colorado Constitution, the Campaign and Political Finance provision. The parties contended that "express advocacy" encompassed only those advertisements that explicitly exhort the viewer, listener, or reader to vote for or against a candidate in an upcoming election. This included the use of so-called "magic words," as set forth in "Buckley v. Valeo," (424 U.S. 1, 44 n.52 (1976)), as well as substantially similar synonyms of those words. Appellant Colorado Ethics Watch (Ethics Watch) argued that the category of advertisements that "expressly advocate" is more expansive and encompasses any advertisement that is the functional equivalent of express advocacy. The court of appeals rejected Ethics Watch's argument and held that, given the settled definition of express advocacy at the time that article XXVIII of the Colorado Constitution was adopted, the category of advertisements that constitute express advocacy was intentionally limited to include only those ads that use the magic words or those that explicitly advocate for the election or defeat of a candidate. After reviewing article XXVIII and the legal context in which it was adopted as a citizen's initiative in 2002 (known as Amendment 27), the Supreme Court agreed with the court of appeals that "expenditure" was intentionally and narrowly defined in article XXVIII to include only "express advocacy," so that it covers only those communications that explicitly advocate for the election or defeat of a candidate in an upcoming election. The Court affirmed the appellate court and remanded the case to the court of appeals to return to the ALJ to enter judgment consistent with the Court's opinion.

Acting on a petition filed by the child's father, the Arapahoe County District Court assumed jurisdiction to modify a Maryland child custody order on the grounds that neither the child nor the child's parents "currently resided" in Maryland. Petitioner George Brandt and his child lived in Colorado, and Respondent Christine Brandt lived in Texas. Respondent sought relief from the Colorado court order. Upon review, the Colorado Supreme Court held that the district court failed to apply the appropriate standard of review when assuming jurisdiction to modify the Maryland child custody order. The operative statutory term "presently reside" is not equivalent to "currently reside" or "physical presence." Accordingly, the Court reversed and vacated the district court's order assuming jurisdiction and remanded the case for further proceedings.

In this case, the District Court for Jefferson County dismissed a condemnation petition for a private way of necessity because the developer of the allegedly landlocked parcel did not sufficiently define the scope of and necessity for the proposed condemnation. Evidence showed that the development might vary from one to thirty residential dwellings which prevented the court from entering a condemnation order that would minimize the burden to be placed upon condemneeâs property. The court of appeals ruled that the condemnation could proceed based only upon the zoning of the condemnorâs property. The Supreme Court disagreed with the appellate court, and reinstated the district courtâs judgment. The Supreme Court held that, when a petitioner seeks to condemn a private way of necessity for access to property it wishes to develop in the future, it must demonstrate a purpose for the condemnation that enables the trial court to examine both the scope of and necessity for the proposed condemnation, so that the burden to be imposed upon the condemneeâs property may be ascertained and circumscribed through the trial courtâs condemnation order. The record in this case supported the trial courtâs dismissal of the condemnation petition.

In 2006, the Upper Yampa Water Conservancy District (District) filed an application for absolute water rights, based on their conditional water rights on "Four Counties Ditch Number 3." The State Engineers opposed the application and moved for summary judgment. The water court denied the Engineers' motion, but ruled as a matter of law that in order to perfect a conditional water storage right, the District needed to show that âit diverted and put to beneficial use water in excess of its existing absolute decrees.â Upon careful consideration of the water court's record, the Supreme Court affirmed its decision.