Court Opinions- Apr 30, 2018

TABOR Foundation v. Regional Transportation District


The Regional Transportation District and the Scientific and Cultural Facilities District are funded by a broad sales tax with a few exemptions. Originally, the two districts’ sales taxes covered the same items as Colorado’s general sales tax. 

But over the years, lawmakers added and removed exemptions, sometimes for the state and sometimes for the districts. 

As the exemptions for the state and the districts gradually diverged, tax collection became increasingly complicated for both vendors and the revenue department. 

To make it easier for everyone, the general assembly passed House Bill 13-1272, adding and removing exemptions on the districts’ taxes to realign them with the state’s. This yielded a projected net increase in the districts’ annual tax revenue of 0.6 percent. 

When the districts began collecting the altered sales tax without holding a vote, the TABOR Foundation sued. It argued that the bill created a “new tax” or effected a “tax policy change” and therefore required voter approval under Colorado’s Taxpayer Bill of Rights. 

The trial court granted the districts summary judgment on stipulated facts, and a division of the Court of Appeals affirmed. 

The Supreme Court clarified that legislation causing only an incidental and de minimis tax-revenue increase does not amount to a “new tax” or a “tax policy change.” House Bill 13-1272 serves to simplify tax collection and ease administrative burdens and it only incidentally increases the districts’ tax revenues by a de minimis amount. 

Accordingly, the Supreme Court concluded that House Bill 13-1272 does not violate the constitution and affirmed the judgment of the Court of Appeals. 

Kuhn v. Williams

In this expedited appeal under section 1-1-113(3) of the Colorado Revised Statutes, the Colorado Supreme Court addressed whether the Colorado Secretary of State was able to certify incumbent Rep. Doug Lamborn to the 2018 Republican primary ballot for Colorado’s 5th Congressional District. Relying solely on the Colorado Election Code, the Supreme Court concluded he could not.

A major-party candidate in a partisan election may seek access to the primary ballot either through the party assembly process or by petition. Lamborn for Congress, the authorized federal campaign committee of Lamborn, chose the latter. 

Under section 1-4-801(2)(b) of the Colorado Revised Statutes of the Colorado Election Code, he needed 1,000 verified signatures from registered Republicans in the 5th Congressional District to qualify for the ballot. 

His campaign hired an organization to circulate petitions and obtain the requisite signatures. 

The campaign then submitted the petition and signatures to the Secretary of State for review and verification.

After completing his review, the Secretary of State determined that the Lamborn Campaign had submitted 1,269 valid signatures, so he issued a statement of sufficiency pursuant to CRS section 1-4-908(3). 

Shortly thereafter, petitioners filed a petition in the district court under sections 1-1-113(1) and 1-4-909(1) of the Colorado Revised Statute protesting the Secretary of State’s finding of sufficiency on grounds that several of the Lamborn campaign’s petition circulators were not bona fide residents of Colorado, as required by section 1-4-905(1) of the Election Code.

In April, the district court held a hearing on the petitioners’ claims. Petitioners asserted, in part, that it would be a breach or neglect of duty under section 1-4-908(3) for the Secretary of State to certify Lamborn’s name to the primary election ballot if the necessary signatures were not collected by Colorado residents. 

Petitioners’ arguments to the district court focused principally on two circulators: Jeffrey Carter and Ryan Tipple. Following a hearing, the district court concluded that Carter was not a resident, and therefore invalidated the 58 signatures he collected. No party challenged that ruling.

The appeal focused on the 269 signatures gathered by Tipple. 

Without those signatures, Lamborn did not have enough signatures to qualify for the ballot. The district court concluded that Tipple’s stated long-term intent to become a resident of Colorado satisfied the circulator residency requirement. 

Because the signatures Tipple collected meant that the Lamborn Campaign had satisfied the statutory threshold, the court denied the petitioners’ request for relief and upheld the Secretary of State’s finding of sufficiency. 

The petitioners appealed to the Supreme Court under section 1-1-113(3), and the Supreme Court exercised discretion to review the district court’s ruling.

The Supreme Court determined that the district court erred when it focused on Tipple’s intent to move to Colorado instead of the section 1-2-102 test when determining residency. The Supreme Court therefore found the signatures Tipple gathered to be invalid, so Lamborn cannot be certified to the ballot.

United States of America v. Gehrmann

During a criminal investigation into two chiropractors, Thomas Gehrmann and Eric Carlson, the government obtained warrants to search their businesses and associated storage facility for evidence supporting allegations of criminal tax offenses and health care fraud. 

In support of the warrants, a federal agent furnished a 43-page probable-cause affidavit which  outlined the government’s existing evidence, described certain aspects of independent investigations that had been conducted by other entities, including a state regulatory body and concluded with the agent’s opinion that probable cause existed to believe that Gehrmann and Carlson committed various criminal tax and health care-fraud offenses and that evidence of those offenses would be found at certain identified locations. 

A few months earlier, the Colorado Department of Regulatory Agencies had investigated similar allegations of health care fraud against Carlson and had ultimately issued an admonition letter that made no mention of the health care-fraud allegations. 

Rather, DORA’s Admonition Letter noted Carlson’s failure to “make essential entries on patient records,” but declined, largely without explanation, to pursue any “formal action.”

In crafting the probable-cause affidavit, the agent mentioned DORA’s underlying investigation into allegations of health care fraud, but omitted any reference to DORA’s Admonition Letter. During the warrants’ execution, federal agents and investigators seized responsive materials and a federal grand jury subsequently charged Gehrmann and Carlson with seven separate criminal tax offenses but, notably, no health care-fraud offenses.

 In advance of trial, Gehrmann and Carlson moved to suppress the seized evidence and requested a Franks hearing. The government opposed suppression. 

Following a Franks hearing, the district court found DORA’s admonition letter material to the probable-cause determination for the suspected health care offenses but not the tax offenses. 

It further concluded that the invalid health care portions of the warrants were not severable from the valid tax portions and suppressed all evidence seized under the warrants. 

The government filed an interlocutory appeal from the suppression ruling, attacking the district court’s materiality and severability determinations, but not the court’s antecedent conclusion that the agent intentionally or recklessly omitted DORA’s Admonition Letter. 

Exercising jurisdiction over the appeal pursuant to 18 U.S. Code section 3731, the 10th Circuit Court of Appeals reversed the district court’s suppression order on materiality grounds and remanded for further proceedings. 

Tennyson v. Raemisch

In February 2008, Audrey Tennyson pled guilty in Colorado state court to two counts of aggravated robbery. He was sentenced to 26 years’ imprisonment, to run concurrently with his sentences for other Colorado convictions. Tennyson did not directly appeal his conviction or sentence. 

In September 2008, Tennyson filed a motion for sentence reduction. 

The state district court denied his motion and he did not appeal the denial. In April 2009, he filed a motion to withdraw his guilty plea. 

The state district court corrected an error in his judgment of conviction but otherwise denied his motion. Once again, Tennyson did not appeal from the denial.

Tennyson later filed several state post-conviction challenges to his conviction. He filed a state post-conviction motion under Colorado Rules of Criminal Procedure 35(c) in 2011, another Rule 35(c) motion in 2014 and a state habeas petition, in 2015. 

The Colorado courts denied or dismissed each of these post-conviction motions or petitions and the Colorado appellate courts affirmed the denial of relief.

On August 26, 2016, Tennyson filed a section 2254 petition in federal district court. The district court dismissed it as time-barred and denied a certificate of appealability. 

Tennyson then filed a motion to alter, amend or modify the judgment under Federal Rules of Civil Procedure 59(e), which the district court also denied. He filed a timely notice of appeal. The 10th Circuit Court of Appeals denied and dismissed the appeal. 

Mosier v. Farren 

Wendell Mosier is an inmate in the Potter County Detention Center in Amarillo, Texas. He filed pro se a 42 U.S. Code section 1983 complaint in the U.S. District Court for the District of Colorado. Each defendant was a Texas resident.

Mosier claimed that Texas denied him due process and violated his double-jeopardy rights by filing a criminal non-support charge for child-support arrearages he assertedly had already paid in full. 

He claimed that the resulting judgment led Texas to garnish his wages and deplete his savings account. Mosier then filed a document titled “Amendment to Relief Sought.”

The district court sua sponte determined that venue was improper, finding that “Mosier’s assertion regarding wages and bank accounts in Colorado do not [sic] demonstrate that a substantial part of property that is the subject of the [complaint] is situated in Colorado.” 

The court also found that “because it appears that Mosier’s claims are barred by the Rooker-Feldman doctrine[,]” transfer to a district with venue wouldn’t be in the interest of justice. See 28 U.S.C. § 1406(a). 

The district court dismissed the case without prejudice for improper venue and entered judgment by separate order. 

Mosier appealed the district court’s dismissal for improper venue of his pro se 42 U.S. Code section 1983 complaint. The 10th Circuit Court of Appeals affirmed. 

Pittman v. Berryhill

Emanuel Pittman alleged that he was disabled due to a visual impairment, post-traumatic stress disorder, insomnia, bipolar disorder/manic depression, a C-6 fracture and anti-personality disorder. 

After a hearing where Pittman was represented by counsel, an administrative law judge denied his applications at the last step of the five-step sequential evaluation process set forth in 20 CFR. 

The administrative law judge found that although Pittman had several severe impairments, none met or medically equaled the severity of one of the impairments listed in 20 Code of Federal Regulation. 

The administrative law judge then found that Pittman had the residual functional capacity to perform work in the medium exertional category. 

With these limitations, the administrative law judge determined that Pittman, who had no past relevant work, could perform work existing in significant numbers in the national economy, such as cleaner/housekeeper, marker and cafeteria attendant. The administrative law judge, therefore, denied his applications.

Pittman sought judicial review in the district court, where he represented himself. The district court affirmed the administrative law judge’s decision. 

Exercising jurisdiction under 42 U.S. Code section 405(g) and 28 U.S. Code section 1291, the 10th Circuit Court of Appeals affirmed.  

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