Justia Government & Administrative Law Opinion Summaries

Articles Posted in Colorado Supreme Court
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The Colorado Supreme Court considered the amended recommendation of the Colorado Commission on Judicial Discipline (“Commission”) that now-former District Court Judge Ryan Kamada be sanctioned by public censure for violations of the Colorado Code of Judicial Conduct that occurred while he was serving as a judicial officer. The recommendation concludes that then-Judge Kamada’s conduct violated the following provisions of the Code of Judicial Conduct: Canon 1, Rule 1.1(A) (requiring a judge to comply with the law), Rule 1.2 (requiring a judge to act in a manner that promotes public confidence in the judiciary), Rule 1.3 (prohibiting abuse of the prestige of judicial office); Canon 2, Rule 2.9 (prohibiting ex parte communications), Rule 2.10 (prohibiting judicial statements on pending cases); and Canon 3, (prohibiting the intentional disclosure of nonpublic judicial information). Having considered the full record, the Supreme Court concluded the Commission properly found that then-Judge Kamada violated numerous provisions of the Code of Judicial Conduct. Had Kamada not already resigned his position, removal from office would have been an appropriate sanction for his misconduct. Because he has resigned, the Court concurred with the Commission’s recommendation that Kamada should have been publicly censured. View "In the Matter of Ryan L. Kamada" on Justia Law

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In 2015, the owners of a 13,000-acre tract of land known as 70 Ranch successfully petitioned to include their tract in a special district. After 70 Ranch was incorporated into the district, the district began taxing the leaseholders of subsurface mineral rights, Bill Barrett Corporation, Bonanza Creek Energy, Inc., and Noble Energy, Inc. for the oil and gas they produced at wellheads located on 70 Ranch. The Lessees, however, objected to being taxed, arguing the mineral interests they leased could not be included in the special district because neither they nor the owners of the mineral estates consented to inclusion, which they asserted was required by section 32-1-401(1)(a), C.R.S. (2019), of the Special District Act. The Colorado Supreme Court determined that section 401(1)(a) permitted the inclusion of real property covered by the statute into a special taxing district when (1) the inclusion occurred without notice to or consent by the property’s owners and (2) that property was not capable of being served by the district. The Court answered "no," however, 32-1-401(1)(a) required the assent of all of the surface property owners to an inclusion under that provision, and inclusion was only appropriate if the surface property could be served by the district. "Section 32-1-401(1)(a) does not require assent from owners of subsurface mineral estates because those mineral estates, while they are real property, are not territory. Thus, Lessees’ consent was not required for the inclusion of 70 Ranch in the special district." The Court therefore affirmed the court of appeals on alternate grounds. View "Barrett Corp. v. Lembke" on Justia Law

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On March 10, 2020, Colorado Governor Jared Polis declared a disaster emergency pursuant to the Colorado Disaster Emergency Act as a result of the COVID-19 global pandemic. Since that time, the Governor relied on his authority under the Act to issue a wide range of executive orders suspending certain statutes, rules, and regulations in an effort to prevent further escalation of the pandemic and mitigate its effects. Among these was Executive Order D 2020 065 (“EO 65”), which (1) suspended the operation of certain statutes governing the ballot initiative process that require signature collection to take place in person; and (2) authorized the Secretary of State to create temporary rules to permit signature gathering by mail and email. Petitioners filed this lawsuit against Governor Polis and Secretary of State Jena Griswold, seeking a preliminary injunction against enforcement of EO65 and a declaratory judgment finding the Order unconstitutional under the Colorado Constitution and unauthorized under the Colorado Disaster Emergency Act. After ordering expedited briefing, the district court held a remote hearing via WebEx on May 22. In its May 27 Order, the district court concluded that (1) petitioners had not established the necessary factors outlined in Rathke v. MacFarlane, 648 P.2d 648 (Colo. 1982), to obtain a preliminary injunction; and (2) petitioners had not established an entitlement to declaratory relief under C.R.C.P. 57. The court also found that the petitioners’ claims against the Secretary were not ripe because she had not yet promulgated the temporary rules that EO 65 had authorized. The Colorado Supreme Court determined Article V, section 1(6) of the Colorado Constitution required ballot initiative petitions be signed in the presence of the petition circulator. "That requirement cannot be suspended by executive order, even during a pandemic." Judgment was therefore reversed and the matter remanded for further proceedings. View "Ritchie v. Polis" on Justia Law

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Proponents-respondents Monica Vondruska and Jon Caldara submitted proposed Initiative #293 to the Title Board for the setting of a title and submission clause. Initiative #293 proposed to add section 22 to article X of the Colorado Constitution and to amend certain statutory provisions in Titles 24 and 39 of the Colorado Revised Statutes in order to create a new preschool program. The measure implements the new preschool program, in part, by: (1) redirecting certain state cigarette and tobacco tax revenue away from local governments that ban selling tobacco or nicotine products and to the new preschool program and (2) reallocating a portion of the cigarette and tobacco taxes collected under article X, section 21 of the Colorado Constitution that are currently allocated to several health-related programs (Initiative #315 differed from Initiative #293 to the extent that Initiative #315 also added a ten percent sales tax on tobacco-derived nicotine vapor products). Petitioner Anna Jo Haynes then filed a motion for rehearing, asserting that the title did not satisfy either the single subject or clear title requirement. The Colorado Supreme Court concluded that the title that the Title Board set for Initiative #293 presented a single subject, namely, the creation and administration of a Colorado preschool program funded by reallocating existing taxes on, and other revenues derived from, tobacco and nicotine products. Furthermore, the Court concluded the title satisfied the clear title requirement because it described Initiative #293’s central features succinctly, accurately, and fairly and in a manner that will not mislead voters. Accordingly, the Court affirmed the Title Board’s actions in setting the title for Initiative #293. View "In re Title, Ballot Title & Submission Clause for 2019 (Initiative 293)" on Justia Law

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Proponents-respondents Monica Vondruska and Jon Caldara submitted proposed Initiative #315 to the Title Board for the setting of a title and submission clause. Initiative #315 proposed to add section 22 to article X of the Colorado Constitution and to amend certain statutory provisions in Titles 24 and 39 of the Colorado Revised Statutes in order to create a new preschool program. This program would be created by reallocating revenue generated by existing state taxes on tobacco products and tobacco litigation settlements and by levying a new sales tax on tobacco-derived nicotine vapor products. Petitioner Anna Jo Haynes then filed a motion for rehearing, asserting that the title did not satisfy either the single subject or clear title requirement. Upon review, the Colorado Supreme Court concluded that the title that the Title Board set for Initiative #315 presented a single subject, namely, the creation and administration of a Colorado preschool program funded by state taxes on nicotine and tobacco products. Furthermore, the Court concluded the title satisfied the clear title requirement because it described Initiative #315’s central features succinctly, accurately, and fairly and in a manner that will not mislead voters. View "In re Title, Ballot Title & Submission Clause for 2019 (Initiative 315)" on Justia Law

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The Colorado State Engineer, and the Division Engineer for Water Division 3 (the “Engineers”), brought claims against Nick Meagher for injunctive relief, civil penalties, and costs, arising from Meagher’s failure to submit Form 6.1, "Water Use Data Submittal Form," as required by Rule 6.1 of the Rules Governing the Measurement of Ground Water Diversions Located in Water Division No. 3, The Rio Grande Basin (the “Measurement Rules”). Meagher appealed the water court’s orders denying his motion to dismiss the Engineers’ claims and granting the Engineers summary judgment on those claims, contending the court erred by: (1) denying his motion to dismiss because the Engineers’ claims were mooted by his ultimate submission of Form 6.1; (2) granting summary judgment for the Engineers based on an erroneous interpretation of Rule 6.1 and section 37-92-503, C.R.S. (2019), and notwithstanding the existence of genuine issues of material fact as to his culpable mental state and the amount of the civil penalties to be imposed; (3) enjoining future violations of Rule 6.1; and (4) awarding costs and fees to the Engineers. Finding no reversible error, the Colorado Supreme Court affirmed the water court's judgment. View "Colorado v. Meagher" on Justia Law

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The Town of Monument (the “Town”) purchased a piece of property on which it planned to build a water tower. Neighboring property owners objected, arguing that the property was subject to a restrictive covenant limiting construction to single-family residences. According to the property owners, if the Town were to violate that covenant by building a water tower, the Town would be taking the restrictive covenant from each of the covenant-subject properties, and it would therefore have to compensate the property owners for the diminution in value caused by that taking. The Colorado Supreme Court answered the question of whether a restrictive covenant diminished the value of property adjacent to the government property such that the change constituted a taking. In Smith v. Clifton Sanitation District, 300 P.2d 548 (Colo. 1956), the Court held that when state or local government acquires property subject to a restrictive covenant and uses it for purposes inconsistent with that covenant, “no claim for damages arises by virtue of such a covenant as in the instant case, in favor of the owners of other property” subject to the covenant. Petitioners asked the Supreme Court to confine "Smith" to its facts or overrule it entirely. The Court declined, instead reaffirming that where a government entity has obtained property for public purposes, the government may use that land for a purpose inconsistent with a restrictive covenant without compensating all of the other landowners who are subject to that restrictive covenant. View "Forest View Co. v. Town of Monument" on Justia Law

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Dr. Steven Jacobs, Casas Limited Partnership #4, LLP, and IQ Investors, LLC (collectively, “Jacobs”) contended the water court erred in: (1) granting summary judgment to the State Engineer and the Division Engineer for Water Division No. 2 (the “Engineers”) and partial summary judgment for the Park Forest Water District (“PFWD”); (2) imposing civil penalties for Jacobs’s violations of the Division Engineer’s order requiring Jacobs to cease and desist unlawfully storing state waters in two ponds on his properties; and (3) certifying its summary judgment rulings as final pursuant to C.R.C.P. 54(b). In 2012, Casas and IQ Investors acquired certain real properties, together with associated water rights and three ponds, in unincorporated El Paso County, Colorado. In order to satisfy the water needs of the properties, Jacobs negotiated with PFWD to join the properties to PFWD, and these parties formalized their arrangement in an Inclusion Agreement. Pursuant to the Inclusion Agreement, PFWD filed an application seeking to amend its augmentation plan to add Jacobs’s ponds to it. In seeking this amendment, PFWD made clear that it was not requesting new water storage rights for the ponds but rather was simply proposing to replace evaporative losses from them. The water court granted PFWD’s application and ruled that the ponds would be augmented consistent with the requirements of PFWD’s augmentation plan. Suspecting that the initial fill after reconstruction was thus not legally obtained, the commissioner requested that Jacobs provide him with the source of the initial fill and advised that if he did not receive such confirmation, then he would seek an order requiring the release of any illegally stored water. Discussion of this issue apparently went on for more than a year. In the course of such discussions, Jacobs took the position that the Inclusion Agreement covered the initial fill. PFWD, however, contended that that Agreement did not do so and that PFWD was not obligated to provide replacement water for the ponds. On December 23, 2016, having not received satisfactory proof that Jacobs’s initial fill of the ponds was lawful, the Division Engineer issued an administrative order (the “2016 Order”) to Jacobs. Jacobs did not comply with the 2016 Order by the deadline set forth therein. The Engineers thus filed a complaint in the water court for injunctive relief, penalties, and costs to enforce the 2016 Order. The Colorado Supreme Court concluded the water court properly granted both the Engineers’ summary judgment motion and PFWD’s motion for partial summary judgment, and properly imposed civil penalties. View "Jacobs v. Colorado" on Justia Law

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Susan Burren was injured at work, and she received temporary workers’ compensation benefits after her employer admitted liability. Many months passed, with many efforts to treat her injuries, but none of her authorized treating physicians (“ATPs”) placed her at “Maximum medical improvement” (“MMI”). Her employer and her employer’s insurer sought a second opinion regarding Burren’s MMI status, and Burren subsequently underwent a Division Independent Medical Examination (“DIME”). The DIME doctor who examined Burren also declined to place her at MMI. The employer and insurer then challenged the DIME doctor’s opinion under section 8-42-107(8)(b)(III), C.R.S. (2019), of the Workers’ Compensation Act (“Act”). An administrative law judge (“ALJ”) concluded that the employer and insurer had overcome the DIME doctor’s finding. The ALJ then placed Burren at MMI with a finding of no permanent impairment, making Burren ineligible to receive permanent disability benefits. An administrative panel agreed with the ALJ. Burren appealed. A division of the court of appeals concluded that the ALJ had no authority to place Burren at MMI. Instead, Burren should have been allowed to resume treatment with her ATPs until either an ATP or a DIME doctor placed her at MMI. The employer and its insurer petitioned the Colorado Supreme Court for review, and the Supreme Court reversed: once an ALJ concludes that an employer or an employer’s insurer has overcome a DIME doctor’s MMI opinion under section 8-42-107(8)(b)(III), the ALJ may determine the claimant’s MMI status and permanent impairment rating as questions of fact. View "Destination Maternity v. Burren" on Justia Law

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Michelle Ferrigno Warren, a candidate for the United States Senate, was unable to collect the statutorily required 1,500 signatures in six of the seven required congressional districts. Ferrigno Warren argued that her name should have nevertheless been placed on the ballot because, under the "unprecedented circumstances" presented by the COVID-19 pandemic, her efforts demonstrated “substantial compliance” with the Election Code’s requirements. The Secretary of State disagreed, arguing that “substantial compliance” should be determined by the application of a mathematical formula that discounts the signature requirement by the number of days signature collection was impeded by the pandemic. While the Colorado Supreme Court recognized the uniqueness of the current circumstances, it concluded nontheless that the legislature alone had the authority to change the minimum signature requirements set out in the Election Code. Because Ferrigno Warren did not meet the threshold signature requirement, the Secretary properly declined to place her on the ballot. View "Griswold v. Ferrigno Warren" on Justia Law