Colorado Supreme Court Oral Arguments: November

The state’s highest court heard arguments in eight cases on this month’s docket. Below is a roundup of the wide array of issues they covered, from water law to attorney discipline.

The Colorado Supreme Court considered the ongoing effects of historic contamination in applying waivers to governmental immunity / LAW WEEK FILE

Concerning the Application for Water Rights of Donald E. Dill, Cathie G. Dill, Jerry R. Pearce, and Frances M. Pearce in Fremont County

Argued Nov. 13

Case Type: Water court

Arguing for Petitioner: David Shohet, Monson Cummins Shohet, for appellant Yamasaki Ring, LLC

Arguing for Respondent: Sarah Klahn, Somach Simmons & Dunn, for appellees Donald & Cathie Dill


Whether the water court erred when it ruled a decree given in 1909 awarded the Campbell Ditch water rights “unenforceable entitlement” to the whole water flow from a series of springs when diversions from Cherry Creek don’t fully satisfy those rights. As a result, the court ruled the Campbell Ditch water rights do not have a legally enforceable right to the springs against any other water right holder. The appeal consolidates two cases presenting identical issues.


The water rights at issue were allocated by the Fremont County District Court in 1909. W.S. Horton received 2.34 cubic feet per second with an 1880 priority date, and an extra 2.3 cubic feet per second with an 1890 priority date for the irrigation of land Horton owned. The decree also states the Campell Ditch is entitled to conduct and receive water from a group of adjacent springs.


Key Dialogue

Shohet: “When you read all of the language together in the decree, when it says, ‘It is further adjudged that the Campbell Ditch is entitled to these springs,’ then the natural extension of that is that the Campbell Ditch water rights … have an entitlement to these springs.”

Justice Melissa Hart: “To what from these springs? All the water at all times?”


Key Dialogue

Klahn: “This is the first decree that adjudicated the water rights in the springs.”

Hart: “What do you make of the word ‘adjudged’ in the third paragraph of the 1909 order?”

Klahn: “I think that ‘adjudged’ is a way for a court to say, ‘I’m finding this.’ I don’t think it’s a magic word that gives any more or less meaning to what follows it in terms of giving content to that.”

Hinsdale County v. Ausherman, Laurence

Argued Nov. 14

Case Type: Real estate & taxation

Arguing for Petitioner: Michael O’Loughlin, Schumacher & O’Loughlin; Krista Maher, Colorado Office of the Attorney General

Arguing for Respondent: Michael Russell, Hoskin Farina Kampf


Whether the court of appeals erred in determining that the homeowners association that manages a subdivision, rather than the fee title owners of the subdivision parcels, is subject to real property taxation due to the covenants that permit the association to restrict property access for nonpayment of association assessments.

Whether the court of appeals erred in deciding that record title owners of real property are not the true owners of the property and are therefore not responsible for property taxes, and that, instead, an entity that enforces covenants on the property is the true owner.


The case concerns land parcels that make up a hunting and fishing club in the southwest part of Colorado. Club members are those who hold property deeds to one of the land parcels that together compose the club grounds. Members can’t make improvements to their parcels or exclude other club members. The club controls the grounds and gives equal access to all members, and it also has the right to revoke members’ access rights if they violate rules or owe money to the club.

In October 2017, the Court of Appeals concluded that based on those facts, the club is the true property owner and should bear the real property tax burden. By contrast, members essentially have a license to use the club grounds and should not be responsible for the real property taxes.


Key Dialogue

O’Loughlin: “Colorado statutory scheme clearly provides that taxation shall be assessed to the record title owners, and it makes no difference that the real property interest is qualified or limited by covenants.”

Justice Richard Gabriel: “Is that really the issue that we’re facing, that this is just a restrictive covenant? Or is the question really, who has the incidence of ownership? … The Court of Appeals said, as I understand, the club retained all the incidence of ownership, we look to substance, not form, therefore the actual owner is the club.”


Key Dialogue

Russell: “What [Mark Ish] was buying was a membership interest. What he was buying is a membership certificate in the club so that he could participate in the club. So the value that he paid was for that membership interest. Didn’t have a darn thing to do with the real property interest.”

Gabriel: “But that’s not how this was set up. Your friends here make a persuasive argument, I think. They bought exactly what they were told they were going to get. They bought a real property interest that gave them all these rights with all these covenants that you were just talking about. For purposes of real property tax, why isn’t that right? They got exactly what they agreed to buy.”

Francisco Ruybalid IV v. Board of County Commissioners of the County of Huerfano County, et al

Argued Nov. 14

Case Type: Claim to legal fees & costs

Arguing for Petitioner: Steven Jensen, 1st Judicial District

Arguing for Respondents: Mary Newnam, Newnam Land


[Reframed] Whether the court of appeals erred in upholding the trial court’s dismissal of the case for failure to state a claim based on its conclusion that Ruybalid did not plead facts sufficient to show that the expenses were incurred in his official duties and for the benefit of the counties. 

[Reframed] Whether the court of appeals erred in holding that the ‘expenses’ for which a district attorney is entitled to reimbursement by the counties of his district, according to section 201-303, C.R.S. (2017), cannot include attorney’s fees and litigation costs, regardless of the nature of the litigation against which the district attorney must defend.


Francisco Ruybalid IV admitted to ongoing violations of the Colorado Rules of Professional Conduct during his time as district attorney in the 3rd Judicial District, which comprises Las Animas and Huerfano Counties. The violations included discovery violations and failing to supervise and train his subordinates, which resulted in sanctions and suppression of evidence in several criminal cases.

Ruybalid sued the counties to recover his fees and costs from defending himself during the disciplinary proceeding. He asked for a declaration that the counties were required to indemnify and defend him against the disciplinary claims, and that he should be allowed to recover his costs under C.R.S. 20-1-303. In August 2017, the Court of Appeals affirmed the district court’s dismissal for failure to state a claim. 


Key Dialogue

Jensen: “In this case, the Court of Appeals’ decision is an alarming example of the ‘bad facts make bad law’ rule. Because the Court of Appeals took a critical view of the conduct of the petitioner, the court has interpreted the statute in question in a way that prevents recovery for the petitioner.”

Justice Melissa Hart: “Our statutes provide a specific time when a public entity will be liable for attorneys’ fees on behalf of an employee of that entity. … The requirements of the Governmental Immunity Act were not met here, is that correct?”

Jensen: “I believe that is correct, because I don’t believe the terms of the Governmental Immunity Act would have been met by the litigation in question. That act by its terms deals with tort actions.”


Key Dialogue

Newnam: “Colorado Revised Statute 20-1-303  is clearly a funding statute. …. It is under a part that has to do with the compensation and expenses for district attorneys’ offices. Nothing in there talks about indemnification.”

Justice Richard Gabriel: “How do you distinguish the Prowers County case? Do you just think it was wrong? 

Newnam: “I do think it was wrong. I think the Court of Appeals was correct to disagree with it. And I think the reason for the Prowers County outcome is exactly what I said at the beginning. I think the Court of Appeals was trying to figure out how to provide indemnity through a funding statute.”

— Julia Cardi

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